IN THE MATTER OF

The Highway Traffic Act, R.S.O 1990, c. H.8

Between

Corporation of City of Brampton prosecutor

and

Wai LAM defendant

Ontario Court of Justice Brampton, Ontario

Before: Quon J.P.

Reasons for Judgment

Trial held: May 1, 2015

Judgment released on: July 27, 2015

Charge: s. 142(1) H.T.A. – "turn not in safety"

Counsel:

• A. Stevenson, municipal prosecutor
• K. Singh, legal representative for the defendant

Cases Considered or Referred To

• R. v. Bero (2000), 151 C.C.C. (3d) 545 (O.C.A.), per Osborne A.C.J.O., Doherty, and Charron JJ.A.
• R. v. Betts, [1998] O.J. No. 2227 (Ont. Ct. (Prov. Div.)), per Bassel J.
• R. v. Bradford (2001), 151 C.C.C. (3d) 363 (O.C.A.), per Finlayson, Weiler, and Abella JJ.A.
• R. v. Brennan Paving, [1998] O.J. No. 4855 (O.C.A.), per Austin, Moldaver, and Borins JJ.A.
• R. v. Carosella, [1997] 1 S.C.R. 80 (S.C.C.)
• R. v. Dillman, [2008] O.J. No. 1120, 68 M.V.R. (5th) 272 (O.C.J.), per Duncan J.
• R. v. Dixon (1998), 122 C.C.C. (3d) 1 (S.C.C.)
• R. v. Dulude, [2004] O.J. No. 3576 (O.C.A.), per Weiler, Laskin, and Feldman JJ.A.
• R. v. Egger, [1993] 2 S.C.R. 451 (S.C.C.)
• R. v. Hamid, [2008] O.J. No. 2059 (O.C.J.), per Quon J.P.
• R. v. Jackson, [2010] O.J. No. 4521 (O.C.J.), per Quon J.P.
• R. v. La, [1997] 2 S.C.R. 680 (S.C.C.)
• R. v. Leung, 2008 ONCJ 110, [2008] O.J. No. 1008 (O.C.J.), per Armstrong J.
• R. v. Lipovetsky, 2007 ONCJ 484, [2007] O.J. No. 4135 (O.C.J.), per Kenkel J.
• R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.)
• R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.)
• R. v. Scott, [2002] O.J. No. 1937 (O.C.A.), per Carthy, Doherty, and Laskin JJ.A.
• R. v. Sheng, 2010 ONCA 296, [2010] O.J. No. 1666 (O.C.A.), per Laskin, Gillese, and Juriansz JJ.A.
• R. v. Stinchcombe (No. 1) (1991), 68 C.C.C. (3d) 1 (S.C.C.)
• R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307 (S.C.C.)
• R. v. Trevisan, [2009] O.J. No. 606 (O.C.J.), per Dechert J.P.
• R. v. Wickstead (1996), 106 C.C.C. (3d) 385 (O.C.A.), per Morden A.C.J.O., Goodman, and Austin JJ.A.

Statutes, Regulations and Rules Cited

• Canadian Charter of Rights and Freedoms, 1982, ss. 7, 11(d), 24(1)
• Highway Traffic Act, R.S.O. 1990, c. H.8, 142(1)

Reference Material Cited

• Libman, R., Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) ((looseleaf) update 11 – February 2008).

1. INTRODUCTION

[1] It has been said that a picture is worth a thousand words. Then, by that same logic, a video recording would be worth much more, especially when it would ultimately show which of the parties involved in a motor vehicle accident is at fault or culpable for a traffic violation. And, it certainly would have helped in deciding the present case in which Wai Lam, the defendant, had been charged with the offence of making a "turn not safety", contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, after the truck and trailer unit that he had been operating had collided with another transport truck on January 28, 2015, at 9:38 a.m. Before the collision had occurred, the two trucks had been beside each other and facing in the same westerly direction on Kimbel Street in Mississauga while both drivers had been attempting to make the same right turn into a private driveway.

[2] In his defence to the charge, the defendant had testified that he had mistakenly believed that the other transport truck which had been involved in the collision with him, and which had been driven by Hardeep Ajimal, had been parked by the curb when the defendant had begun his right turn in front of the Ajimal truck that the defendant had just driven past. Unfortunately, both trucks had been attempting to make the same right turn into the private driveway of a building located at 7347 Kimbel Street, where both drivers had been intending to pick up loads that morning from its loading docks. Moreover, the defendant had not looked at the Ajimal truck again after he had driven passed it and contends that just before the collision had occurred he did not actually realize that the truck driven by Hardeep Ajimal had been slowly moving forward while it had been situated immediately next to the curb, with the same intention as himself of making a right turn into that private driveway.

[3] And, it was by happenstance that the dashboard video camera in a transport truck, which had been parked in a yard across the street from where the collision had occurred, had actually captured and recorded the collision of the defendant's truck and trailer unit with the transport truck driven by Hardeep Ajimal. In addition, Cst. Coupland, the Peel Region police officer who had investigated the accident and laid the charge against the defendant, had been informed by the operator of that parked transport truck that the video of the collision could be downloaded from a particular website on the internet. Subsequently, Cst. Coupland had been able to view the video of the collision, and based on what had been contained in the video, especially that the officer had observed that the Ajimal truck had been in motion before the defendant's truck had actually commenced its right turn into the private driveway, the officer had determined that the defendant had committed the Highway Traffic Act offence of "turn not in safety". In addition, a day after the accident, Cst. Coupland had called the defendant to attend the police station in order to show the video of the collision to the defendant and to explain why the defendant was being charged with the turn not in safety offence, based on what had been revealed on the video. In addition, Cst. Coupland, provided the defendant a copy of that video evidence on January 29, 2015.

[4] Unfortunately, in the trial held on May 1, 2015, of that Highway Traffic Act charge, the video evidence of that collision involving the defendant's truck and trailer with the Ajimal transport truck was not available to be shown to the court. Moreover, Cst. Coupland had also given the only copy of the video evidence of the collision to the defendant and before she could make another copy of the video of the collision, the video had been removed from the website where she had accessed and downloaded the copy of the video that had been given to the defendant. Furthermore, although a copy of that video of the collision had been provided to the defendant by Cst. Coupland, the defendant had indicated that he could not access, retrieve, or view the video in the format or on the medium that had been provided to him. However, there is no evidence that defendant or the defendant's legal representative had informed the prosecution or Cst. Coupland that the defendant's copy of the video had not been accessible or viewable before the trial.

[5] Ergo, the circumstances of the apparently lost, destroyed, or missing video evidence in this trial raises several issues, which includes whether the loss or destruction of the video evidence of the collision, the prosecution not disclosing the video evidence to the defendant, or the failure of the investigating officer to preserve the video evidence, is so prejudicial to the defendant's ability to make full answer and defence that it would impair his right to a fair trial guaranteed respectively under s. 7 and s. 11(d) of the Charter. On the other hand, despite the unavailability of the video evidence for the trial, both the investigating officer and the defendant had been able to view at the police station the contents of the video which captured the defendant's collision with the Ajimal transport truck, and in which they both had testified at the trial what each had observed respectively on the video when it had been viewed by them. As such, what weight, if any, should the court give to the testimony provided by both the investigating police officer and the defendant on what they had personally observed on the video, considering that the trier of fact was not able to view the video of the collision. And, before considering whether there had been a Charter violation and the need for an appropriate remedy, due to the prosecution' failure to disclose, produce, or preserve the video evidence and the impact of the lost or destroyed video evidence of the collision on the ability of the defendant to make full answer and defence that would impair a fair trial, the merits of the charge will have to be considered first after an evidentiary foundation had been established, since a Charter violation is not immediately clear and patent for the circumstances of this case.

[6] Consequently, based on the written reasons that follow, the prosecution had met its burden in proving that the defendant had committed the actus reus of the offence beyond a reasonable doubt. However, the defendant had also met his burden in proving the mistake of fact defence on a balance of probabilities, that he had mistakenly believed the transport truck driven by Hardeep Ajimal had been parked by the curb before he had commenced to make the right turn into the private driveway. Moreover, Cst. Coupland's and the defendant's testimony on what they had respectively observed on the video is admissible evidence, since their testimony does not violate any evidence rule, principle, or policy. As such, the defendant's mistaken belief of fact will make his act of making the right turn an innocent act, and will thereby be acquitted of committing the offence set out in s. 142(1) of the Highway Traffic Act.

[7] In addition, even though it would be unnecessary to consider whether the prosecution's failure to disclose, produce, or preserve the video evidence of the collision had sufficiently prejudiced the defendant's ability to make full answer and defence that would have impacted a fair trial, it would nonetheless be useful to address the issues related to the defendant's right to disclosure and to make full answer and defence as it pertains to the potentially lost or destroyed video evidence. It is also important to do so, in light of the proliferation of motorists who have equipped their motor vehicles with dashcam recording devices to record video of their surroundings while engaged in driving their vehicles, as well as for the potential that there will be ample video evidence of collisions and accidents that have occurred on highways that could be used in trials in the future, which would then trigger the obligation to disclose this video evidence to accused persons.

[8] For the case at bar, the lost or destroyed evidence had been a video of the defendant's collision, and as such, would have been material and relevant evidence, especially for assessing the credibility of both Hardeep Ajimal and the defendant, and to potentially assist the prosecution in proving the charge. It also would have been particular useful to the defendant to support the defendant's testimony in respect to the defendant's mistake of fact defence. The failure of the prosecution in not disclosing, producing, or preserving the video evidence would generally breach the prosecution's disclosure obligation, unless the prosecution can satisfactorily explained why the video evidence had not been disclosed, produced, or properly preserved. For this question, the evidence in this proceeding would have supported a finding that even though the prosecution had not deliberately or intentionally prevented the disclosure of the video evidence to the defendant, the prosecution had not satisfactorily explained why the video evidence of the collision had not been preserved, especially on why Cst. Coupland did not make two copies of the video before giving the one and only copy of the video to the defendant. This unsatisfactory explanation, therefore, would have led to finding that the prosecution had been unacceptably negligent in not preserving the video evidence, which would have been an infringement of the defendant's right to disclosure.

[9] Moreover, although the prosecution had not deliberately or intentionally prevented the video evidence from being disclosed to the defendant, since a copy of the video of the collision had been provided to the defendant by Cst. Coupland on January 29, 2015, at the police station, the defendant indicates that he and his legal representative could not access or view the video of the collision in the format or medium that had been provided to the defendant. However, there is also no evidence or suggestion that the prosecution had been made aware of the non-accessibility or non-viewability of the video until the day of the trial. On the other hand, as for the explanation as to why the video of the collision was not properly preserved by Cst. Coupland as evidence of the charge, Cst. Coupland had explained that she had been unable to download a second copy of the video before it had been removed from the website, but her explanation does not explain why she did not download and make a second copy of the video of the collision before she gave a copy of the video to the defendant on January 29, 2015. Therefore, although the evidence does not indicate that Cst. Coupland deliberately or intentionally failed to disclose or preserve the video evidence, as she did in fact provide a copy of the video to the defendant, she had been in the circumstances unacceptably negligent in not preserving the video evidence of the collision by not making a second copy of the video before she gave the one and only copy of the video of the collision to the defendant.

[10] And, once there is a finding of a disclosure breach by the prosecution, then the defendant has the burden to prove on a balance of probabilities that the prosecution's failure to disclose, produce, or preserve the video evidence had actually prejudiced the defendant's ability right to make full answer and defence that would impact on a fair trial. In this case, the defendant could still make out the mistake of fact defence without the video evidence, so that the failure of the prosecution to disclose, produce, or preserve the video evidence would not have caused irreparable prejudice to the defendant's ability to make full answer and defence. Specifically, the defendant had observed what had been on the video and had been able to use those observations to cross-examine Hardeep Ajimal and to also testify as to what he had observed on the video of the collision to support his mistake of fact defence that the Ajimal truck had not commenced its motion until after the defendant's truck and trailer had gone past the Ajimal truck by 10 to 15 feet. Therefore, there had been other ways that the defendant could make out full answer and defence without the potentially lost or destroyed video evidence. Accordingly, there has been no violation of s. 7 or s. 11(d) of the Charter, and as such, consideration of an appropriate remedy under s. 24(1) had not been required.

[11] On the other hand, to cure any prejudice that could have affected the defendant's ability to make full answer and defence, the measure that would have been ordered to alleviate any prejudice from the prosecution's failure to disclose, produce, or preserve the video evidence would have been for an order that the defendant return the copy of the video to the prosecution, so that the prosecution could determine if the video of the collision could be accessed or viewed on prosecution or police equipment, and if it were accessible and viewable, then another copy with instructions on how to access and view the video of the collision would have to be provided to the defendant, along with an adjournment so that the defendant could properly utilize the video evidence in his defence.

2. THE CHARGE

[12] The defendant has been charged under a Part I Certificate of Offence that was issued on January 29, 2015, for committing the following offence:

Wai Lam, of [residential address removed for privacy], Markham, Ontario,

on the day of January 28 2015, at 9:38 a.m. at 7347 Kimbel St., Mississauga, did commit the offence of "Turn Not In Safety" contrary to Highway Traffic Act, Sect. 142(1).

3. BACKGROUND

[13] On January 28, 2015, Cst. Coupland of the Peel Region Police Service had been called at 9:38 a.m. to attend the accident scene at 7347 Kimbel Street in Mississauga between two transport trucks. After she had arrived at the scene at 9:53 a.m., she had interviewed Wai Lam ("the defendant") and Hardeep Ajimal, the drivers of the two transport trucks involved in the accident.

[14] Kimbel Street, for the purposes of this proceeding, is an east-west road with one lane in each direction. A private driveway leads into a yard located at 7347 Kimbel Street, which contains an L-shaped building with loading docks where commercial trucks pick up loads. However, the private driveway is not wide enough to accommodate two trucks being both able to make a right turn at the same time into the driveway while both trucks are travelling westbound on Kimbel Street beside each other.

[15] Moreover, shortly before the collision between the defendant's truck and trailer and Hardeep Ajimal's straight transport truck, there had been three trucks facing westbound on Kimbel Street that had been situated east of the private driveway to 7347 Kimbel Street and near the north curb of Kimbel Street and the entrance to the private driveway. The first two trucks nearest the private driveway were both straight-shaped transport trucks that had been from the same company. And, just before the collision had occurred, the defendant had been driving a transport truck with a trailer westbound on Kimbel Street toward the private driveway located at 7347 Kimbel Street to pick up a load there, when he had observed three trucks parked near the curb. Then, thinking that the three trucks were parked by the curb, the defendant drove down the middle of Kimbel Street toward the entrance to the private driveway of 7347 Kimbel Street. As the defendant was about to make a right turn into the private driveway, he noticed and realized that the first truck nearest the driveway had moved forward and had also began making a right turn into the private driveway. The defendant then stopped and allowed the first truck to turn right into the private driveway. After that first truck had entered the private driveway, the defendant then proceeded to make his right turn into the private driveway. However, before turning right, the defendant did not look at the second truck being driven by Hardeep Ajimal, which had been immediately behind the first truck that had just completed its right turn into the driveway. As the defendant's truck and trailer was making the right turn into the private driveway, the defendant's trailer collided with the front area of the second truck that was being driven by Hardeep Ajimal, which had been also moving forward to make the same right turn into the private driveway.

[16] During Cst. Coupland's investigation of the collision, the defendant and Hardeep Ajimal had given Cst. Coupland contradictory accounts of what had occurred just before the collision. However, while Cst. Coupland was conducting her investigation of the collision between the defendant's truck and the Ajimal truck that had occurred at 7347 Kimbel Street, Lurie Vaciu-Mailov, the driver of another transport truck that had been parked in a yard across the street from the spot where the collision had occurred, had approached Cst. Coupland and had informed the officer that the dashcam video recorder in his truck had recorded the collision and that the video recording of that collision could be accessed and viewed on a particular internet website.

[17] At that point, because of the conflicting accounts from the defendant and from Hardeep Ajimal of what had occurred, Cst. Coupland had not yet formed an opinion on whether any charges should be laid. However, once Cst. Coupland had returned to her police station and had accessed and viewed the video of the collision, she had formed the opinion that the defendant had committed the Highway Traffic Act offence of "turn not in safety". Cst. Coupland then called the defendant to attend at the station on January 29, 2015, so that she could show the defendant the video of the collision between the defendant's truck and trailer and the straight transport truck driven by Ajimal.

[18] On January 29th, the defendant attended the 21 Division police station, where Cst. Coupland showed the video of the collision to the defendant and explained to him, based on what the video had captured of the collision, why she had decided to charge the defendant with the Highway Traffic Act offence of turn not in safety. Specifically, she had explained and showed the defendant that the video had shown that the other truck involved in the collision had been in motion or moving forward before the defendant had begun his right turn into the private driveway, despite the defendant believing that the other truck had been parked at the curb at a location near the entrance to the private driveway. Cst. Coupland then served the defendant at the police station on January 29, 2015, with an offence notice for the Part I offence of "turn not in safety", contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. In addition, Cst. Coupland had provided the defendant with a copy of the video of the collision that had been downloaded from the website at the police station on January 29th.

[19] Unfortunately, as indicated by the defendant, the defendant's copy of the video could not be accessed or viewed by the defendant on the format or medium provided to the defendant. Also, after Cst. Coupland had shown the video of the collision to defendant at the police station, the video had been taken off the website where the video could be downloaded and Cst. Coupland had not made another copy of the video before it had been removed from the website, nor had she made an additional copy of the video of the collision before she had provided the defendant with a copy of the video. In other words, the copy of the video of the collision that had been given to the defendant at the police station had been the only copy that Cst. Coupland had been able to download from the website before it had been removed from the website. Therefore, there had been no copy of the video of the collision that could be shown to the court during the trial of the defendant's charge, although reference had been made about the existence of the video of the collision, testimony on what had been observed on the video from Cst Coupland and from the defendant, and that Cst. Coupland had formed her opinion to charge the defendant based on what she had observed on the video.

[20] In addition, the defendant during cross-examination had acknowledged viewing the video with Cst. Coupland at the police station and that he did observe that the transport truck that had been driven by Hardeep Ajimal had been in motion when the collision between the defendant's truck and trailer and Hardeep Ajimal's truck had occurred, although the defendant reiterated that he had believed that the truck driven by Ajimal had been parked by the curb when the defendant began his right turn into the private driveway. However, the defendant also testified that the video had shown the transport truck driven by Hardeep Ajimal had only begun moving forward after the defendant's truck and trailer had already passed the Ajimal truck by 10 to 15 feet.

4. SUMMARY OF TESTIMONY

[21] Three witnesses testified in the trial: (1) Hardeep Ajimal, the other driver involved in the collision, (2) Cst. Coupland, the investigating officer, and (3) the defendant. The following is a summary of the relevant testimony provided by the three witnesses who testified in the trial.

(a) Testimony Of Hardeep Ajimal

(The Driver Of The Straight Transport Truck That Had Been In A Collision With The Defendant's Truck and Trailer)

[22] Hardeep Ajimal testified that on January 28, 2015, he had been operating a 24-foot straight transport truck and gone to load his truck at the yard on Kimbel Road, which he believes, is in Mississauga. He said he had been there, as he is every day, to pick up a load of medicines for Shoppers and other businesses. In addition, he said that at approximately 9:00 to 9:30 a.m. of that morning he had been in front of that yard where he had been making a right turn into the yard.

[23] Furthermore, Ajimal described the Kimbel roadway as two lanes with one lane for each side, but cannot recall whether there were markings on the roadway. He also said he had been facing towards Torbram Road. In addition, he said there had been one truck in front of him that had turned right, while he had been second in line. However, he said that there had been no truck behind him, as there had only been two trucks in line. He also said the truck in front of him had been from the same company and that it had also been the same type of truck as he had been driving. He further said that the truck in front of him had been in motion for 30 seconds in making the right turn and that he had been in motion as well.

[24] Ajimal then described the collision between his straight transport truck with the defendant's truck and trailer. He explained that he had just turned right and the defendant's truck and trailer had come from back of him to his left, overtook his truck, and then quickly made a right turn. He then said that the backside of the defendant's trailer had come into contact with his truck He also said that they were both going in the same direction and that the defendant's truck had been beside him in the one lane. However, he said that the defendant's truck, which had passed him, did not work for the same company that he was working for.

[25] Furthermore, Ajimal said he had talked to the defendant after the collision and also identified and pointed to the defendant in the courtroom as the person he had spoken to as the other driver of the truck and trailer involved in the collision with his transport truck. He further said the defendant had been aggressive in their conversation and had kept saying that it had been Ajimal's fault and not the defendant's fault for the collision.

[26] In addition, Ajimal said the private driveway that they were both turning right into had been only one lane.

[27] Ajimal also said that he had given a right signal to make the right turn.

[28] Moreover, Ajimal had also admitted that he used to park there at that location, but had not been parked there that day.

[29] In describing the actions of the truck and trailer that had passed him on his side, Ajimal had said that he had checked his mirrors and had observed that there had been no one there and that the defendant's truck had been back of him and that Ajimal had been in the driveway when the defendant had come. Ajimal also said that when he moved he had watched for traffic around him and had observed a truck in front of him, a truck parked on the other side of the roadway, and a truck behind him. He also said he had watched the curb, and reiterated that the defendant had come from back of him and made the right turn. In addition, Ajimal said the defendant's truck and trailer had gone ahead of him and then hit his truck.

(b) Testimony Of Cst. Becky Coupland

(The Officer Who Had Investigated The Accident And Who Laid The Charge Against The Defendant)

[30] Cst. Coupland testified that on Wednesday, January 28, 2015, she had been on uniform patrol from 6:00 a.m. to 6:00 p.m. She also said she had been dispatched at 9:38 a.m. to attend at 7347 Kimbel Street in Mississauga for a collision involving two transport trucks. She also said she had arrived at that location at 9:53 a.m.

[31] When she had arrived at the location of the collision, Cst. Coupland said she had observed that both of the transport trucks that were involved in the collision had been located off the roadway. She also said she had observed that the straight transport truck which had been driven by Hardeep Ajimal had been facing westbound on Kimbel Street and that there had been damage to the left front bumper and the front nose and headlight area of the Ajimal truck. As for the defendant's transport truck, she said she had observed that it had been pulled off to the side.

[32] In addition, Cst. Coupland said the defendant had been operating a transport truck with a trailer, which she had observed as a purple-coloured 1999 Freightliner, although it had been listed as white in colour. She also said she had observed minor damage on the middle of the trailer, which consisted of a small scratch and dent.

[33] Cst. Coupland also said Kimbel Street is an east and west road with one lane for each direction.

[34] In addition, Cst. Coupland said that both drivers of the two transport trucks involved in the collision had given her conflicting stories. However, during her investigation she said that a witness named Lurie Vaciu-Mailov had approached her and told her that he had a video of the incident taken from the dashcam on his transport truck and that it could be downloaded off the internet. She also said the Vaciu-Mailov transport truck and trailer had been parked in another yard that had been across the street from the collision and that Vaciu-Mailov had heard the crash, but did not actually witness the collision. She later said that both she and the defendant, whom she had identified as Wai Lam, had viewed that video at the 21 Division police station on January 29, 2015.

[35] In addition, Cst. Coupland said that on the date of the accident of January 28, 2015, she had not yet made a decision on whether to lay any charges as both drivers had given her conflicting evidence, so she said she had waited to make her determination until she has been able to view the video of the collision.

[36] Furthermore, Cst. Coupland said she had called the defendant to come to the 21 Division police station to view the video of the collision with her. She also said she had previewed the video before the defendant had arrived at the station and had decided to charge the defendant after viewing the video. She also said she had already written up the charge and the Provincial Offences Notice before the defendant arrived at the station.

[37] However, before she had viewed the video with the defendant on January 29th, Cst. Coupland reiterated that she had the opportunity the day before to view the video of the collision. She then described what she had observed on the video, which included observing trucks parked westbound on Kimbel Street. She also said she had observed on the video the first straight transport truck moving and make a right turn into the private driveway and the second truck that had been behind the first truck moving behind the first truck. Then she said she had observed on the video that the purple-coloured truck and trailer driven by the defendant had been driving westbound in the middle of the roadway and then make a right turn into the same driveway as the first straight truck had turned into.

[38] Moreover, Cst. Coupland said she did not record in her notes whether she had cautioned the defendant or whether she had given the defendant a caution at the police station. However, she said she had shown the defendant the video of the collision the defendant had been involved in and how she had made her determination to charge him from what had been recorded on the video.

(c) Testimony Of The Defendant

[39] The defendant testified that on January 28th at 9:30 a.m. he had been driving a truck and trailer westbound on Kimbel Street. He also said he had observed two straight trucks parked by the curb. He then said he had passed the second truck and that when he had gotten to the first truck, the first truck, which was beside him, had started moving at the same time as his truck. He also said there had been one long truck to his left that had been moving as well.

[40] In addition, the defendant said all of them had been turning into the same driveway. He said he had intended to turn right into the driveway so he could look for a dock in the "L" shaped building in order to pick up a load. He also said the other drivers had been doing the same thing. Furthermore, he said that when he had gotten to the driveway there had been two trucks parked right at the edge of the driveway. Moreover, the defendant said he had been westbound when he had observed the driver of the first truck, who had been outside of the truck, then go inside the truck, start the truck, and then moves forward just as the defendant got right beside the first truck. He then reiterated that he had let the first truck go in before he turned in. At that time, the defendant also said he did not check his mirror.

[41] The defendant also clarified that the first truck had moved at the same time when he had started turning right into the driveway, but that the defendant had let the first truck go in and that he had then went in after the first truck. He said the first truck then got in. Furthermore, he said that when he passed the second truck it had been parked on the side. He also said that he could not see the driver of the second truck when he passed the second truck. And, after the first truck had turned into the driveway, the defendant said that he then began to make the right turn, but at that time, he could not see the second truck. He then said he hit something. At that point, he said he had noticed the second truck. In addition, he said that the middle of his truck had hit the left-side fender of the second truck.

[42] Moreover, the defendant had said that he did not see a driver in the second truck as he had only been paying attention to the first truck, and that he usually does not pay any attention to the trucks parked on the side unless they are moving. He also said that in his mind the second truck had been parked.

[43] Furthermore, under cross-examination the defendant acknowledged that he had viewed the video of the collision at the police station and that he did observe on the video that the second truck had been moving when the collision between the defendant's truck and trailer and Hardeep Ajimal's truck had occurred. However, the defendant explained that at the time the defendant had not actually noticed the second truck moving, although he did view the second truck moving in the video.

[44] In addition, the defendant said he did not know whether the second truck would be going into the driveway since the defendant had been pretty sure that it had been parked. He then said there had been three trucks that had been parked on the side and that there had been another truck that had been behind the second truck. He also said he had passed all three of those parked trucks. Moreover, the defendant said that when he had passed the second truck, in his mind the second truck had been parked. However, the defendant said that on the video he had seen the second truck moving 10 to 15 feet after he had passed the second truck, but that he did not see the second truck after he had passed it. He also confirmed that he had hit that second truck and that there had only been room for one truck and not two trucks to make the right turn into the driveway.

5. RELEVANT LAW

[45] The "turn not in safety" offence that is contained in s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8, specifically provides that before the driver or operator of a motor vehicle makes a right turn into a private road or driveway that they are obligated to first see that the movement can be made in safety:

142(1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement.

6. ANALYSIS

[46] The analysis that is required to decide this particular case will be derived from the jurisprudence that has been established for lost or destroyed evidence cases. In this particular case, there had been a video of the collision that may have been potentially lost or destroyed. This video of the collision between the defendant's transport truck and trailer and Hardeep Ajimal's straight transport truck on Kimbel Road in Mississauga on January 28, 2015, had been captured by a dashboard video camera in a transport truck that had been parked in a yard across the street from the collision. During the investigation into the collision between the two transport trucks, the investigating officer, Cst. Coupland, had been made aware of the existence of that video of the collision and that it could be downloaded from a particular website on the internet. However, although the video of the collision had been viewed by Cst. Coupland and also by the defendant at the police station a day after the collision had occurred, and a copy of that video had been provided to the defendant by Cst. Coupland before the defendant had left the police station, the video of the collision was not available to be shown to the court at trial, even though Cst. Coupland and the defendant had testified to what they had observed on the video. The unavailability of the video evidence for trial was due to Cst. Coupland not being able to make a second copy of the video of the collision before it had been removed from the website where the video could be accessed and viewed. Moreover, the only copy of the video of the collision that had been downloaded from that website had been provided to the defendant on January 29, 2015, when the defendant had been at the police station and after he had been shown the video of the collision. However, the defendant indicated that he could not access or view the video of the collision in the format or on the medium that he had received from Cst. Coupland. On the other hand, there is no evidence or suggestion that the defendant or the defendant's legal representative had informed the prosecution about the problem with the video's accessibility or viewability before the day of the trial.

[47] Furthermore, Cst. Coupland, who had been tasked with investigating the collision between the two transport trucks, had testified that the defendant and the other driver involved in the collision, Hardeep Ajimal, had given conflicting statements of what had occurred to her when she had been conducting her investigation at the accident scene. However, while at the scene of the collision, Cst. Coupland had been approached and informed by Lurie Vaciu-Mailov, the operator of a transport truck that had been parked in a yard across the street from where the collision had occurred, that there had been a video of the collision recorded by his dashboard camera and that it could be downloaded from a particular website on the internet. At that point, Coupland had said that she had not determined whether any charges would be laid against either of the two drivers that had been involved in the collision.

[48] After Cst. Coupland returned to her police station, she accessed the website that contained the video of the collision and had been able to view the video of the collision. At that juncture, Coupland formed the opinion that the defendant had committed the "turn not in safety" offence. Coupland then called the defendant to attend the police station. When the defendant appeared at the police station on the next day after the accident, which had been on January 29, 2015, Cst. Coupland had shown the defendant the video of the collision and explained to the defendant her reasons for charging the defendant from what she could see on the video. At trial, Cst. Coupland had testified that she had formed the opinion that the defendant had committed the turn not in safety offence because the video had shown that the transport truck driven by Hardeep Ajimal had already been in motion before the defendant's truck and trailer had actually began to make the right turn into the private driveway. On the other hand, even though the defendant had acknowledged during his testimony at trial about having observed on the video of the collision that the Ajimal truck had been in motion when the collision had occurred, the defendant had testified that he had believed that the Ajimal transport truck had been parked by the curb when he had commenced his right turn into the private driveway and that the video of the collision had also shown that his truck and trailer had actually gone past the Ajimal truck by 10 to 15 feet before the Ajimal truck had actually commenced being in motion or moving forward.

[49] Consequently, due to the video evidence of the collision being possibly lost or destroyed and its potential effect to the defendant's ability to make full answer and defence that would impact on a fair trial, the following issues needed to be resolved in this trial:

(1) Has the prosecution proven that the defendant had committed the actus reus of the turn not in safety offence beyond a reasonable doubt?

(2) How much weight, if any, should be placed on Cst. Coupland's and on the defendant's testimony on what they had individually observed in the video of the collision when both had been able to view the video before it had been possibly lost or destroyed?

(3) If the prosecution has proven the actus reus of this strict liability offence beyond a reasonable doubt, then has the defendant made out the mistake of fact defence, that the defendant had honestly and reasonably believed that the transport truck driven by Hardeep Ajimal had been parked by the curb before the defendant had commenced to make the right turn, so that the defendant would be not guilty of committing the turn not in safety offence?

(4) Has the prosecution satisfactorily explained why the video evidence was not disclosed, produced, or preserved?

(5) Has the prosecution or the investigating police officer deliberately or been unacceptably negligent in not disclosing, providing, or preserving the video evidence of the collision?

(6) Have the actions of the prosecution or the police in not disclosing, providing, or preserving the video evidence sufficiently prejudiced the ability of the defendant to make full answer and defence, so that the defendant would not receive a fair trial?

(7) Has the defendant met his burden in proving actual prejudice on a balance of probabilities that the actions of the prosecution or the police in not disclosing, providing, or preserving the video evidence have impaired the defendant's ability to make full answer and defence that would impact a fair trial?

(8) Have all remedies or measures less than a stay of proceedings been considered to cure any prejudice to the defendant's ability to make full answer and defence that would impact a fair trial?

(9) If the defendant's ability to make full answer and defence that would impact a fair trial has been sufficiently prejudiced by the loss or destruction of the video of the collision, which would necessitate finding that there had been a Charter violation, then what is the appropriate remedy under s. 24 (1) that should be granted?

[50] However, before deciding whether the prosecution's failure to disclose, provide, or preserve the video of the collision had significantly prejudiced the defendant's ability to make full answer and defence that would impact on a fair trial, the proper order and procedure that should be utilized in deciding the relevant issues in respect to lost or destroyed evidence cases needs to be addressed first.

(A) Procedure for Assessing The Effect That The Loss Or Destruction Of Video Evidence Would Have On the Defendant's Ability To Make Full Answer And Defence That Would Impact A Fair Trial

[51] In R. v. Brennan Paving, [1998] O.J. No. 4855, at paras. 11 and 12, the Court of Appeal for Ontario held that, before deciding whether a stay of proceedings should be granted in respect to an accused's right to a fair trial being irreparably prejudiced, a proper evidential foundation is required. Moreover, it had also been noted by the Court of Appeal that this issue should be raised at the outset of the trial to enable the trial judge to assess any adverse effect as the trial unfolds:

… The stay application was brought at the outset of the trial proceedings, before any evidence was heard. Brennan led no evidence on the stay application to show that as a result of the testimony led at the inquest, including that of its own witness, that its right to a fair trial had been irreparably prejudiced.

… To the extent, if any, that prejudice is revealed as the evidence unfolds at trial, Brennan may renew the stay application if it sees fit.

[52] Also, in R. v. Johnson, [2007] O.J. No. 2228, at paras. 7 and 12, the Court of Appeal for Ontario held that the effect of a disclosure breach on trial fairness is generally ascertainable only after all the evidence has been heard. However, the Court also held that a stay should only be granted prior to the conclusion of the trial where "it is clear that no other course of action will cure the prejudice" to the accused:

In circumstances such as these, the courts have held that it is preferable to proceed with the trial and then determine the abuse motion with the benefit of all the evidence. A stay should be granted prior to the conclusion of the trial only if "it is clear that no other course of action will cure the prejudice" to the accused. This is because the court will be in a better position at the end of the trial to determine whether actual prejudice has occurred: R. v. La (1997), 116 C.C.C. (3d) 97 at 109-110 (S.C.C.).

Moreover, there was no reason for the trial judge to order a stay of proceedings at the outset of the trial, rather than allowing it to proceed and assessing the issue of possible prejudice at its conclusion. Indeed, the cases point out that the remedy of a stay for an abuse of process should be exercised only rarely. It is clearly desirable that cases be decided on their merits, if possible.

[53] Furthermore, in R. v. La, [1997] 2 S.C.R. 680 (S.C.C.), Sopinka J., in his majority judgment, held at para. 27, that the appropriateness of a stay of proceedings for a Charter violation would depend upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. As for the timing of the disposition of the application for a stay of proceedings, Sopinka J. reasoned that at the trial judge's discretion, ruling on the application for a stay could be made immediately if the Charter violation is patent and clear and that no other course of action would cure the prejudice caused by the conduct giving rise to the abuse; otherwise, he held that the determination of whether to grant the application for a stay is often best assessed in the context of the trial as it unfolds, after hearing some or all of the evidence. This, he explained, would allow the trial judge the ability to assess the degree of prejudice and to also determine whether measures to minimize the prejudice have borne fruit:

The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has a discretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence. Unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable to reserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures to minimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidence cases. In R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382:

The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevant evidence, the nature of which would make it clear whether the prejudice was real or minimal.

Similarly, in R. v. Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation "is patent and clear, the preferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as it unfolded at trial". See also: R. v. François (L.) (1993), 65 O.A.C. 306; R. v. Kenny (1991), 92 Nfld. & P.E.I.R. 318 (Nfld. S.C.T.D.).

[54] And, in R. v. Bero (2000), 151 C.C.C. (3d) 545 (O.C.A.), at para. 18, Doherty J.A. emphasized that a trial judge should reserve on motions for a stay of proceedings until after the evidence has been heard, in cases which are based on the destruction of evidence and the prosecution's failure to preserve evidence, and where it is contended that there has been sufficient prejudice to the accused's ability to make full answer and defence, except where the appropriateness of a stay is manifest at the outset of proceedings:

The trial judge should not have ruled on the motion at the outset of the trial. This Court has repeatedly indicated that except where the appropriateness of a stay is manifest at the outset of proceedings, a trial judge should reserve on motions such as the motion brought in this case until after the evidence has been heard. The trial judge can more effectively assess issues such as the degree of prejudice caused to an accused by the destruction of evidence at the end of the trial: R. v. B.(D.J.) (1993), 16 C.R.R. (2d) 381 at 382 (Ont. C.A.); R. v. A.(S.) (1992), 60 O.A.C. 324 at 325 (C.A.). The approach favoured by this Court was approved in R. v. La (1997), 116 C.C.C. (3d) 97 at 107-108 (S.C.C.). …

[55] Moreover, in R. v. Scott, [2002] O.J. No. 1937, at para. 7, the Ontario Court of Appeal for Ontario, in considering an abuse of process application in respect to lost evidence, held that although the trial judge had properly waited until the end of the trial to decide the abuse of process application, the trial judge should have nonetheless first dealt with the merits before proceeding to the question of whether the proceedings should be stayed:

… The trial judge properly waited until the end of the trial to decide the abuse of process application. However, he ruled on that application before addressing the merits of the case. He should have dealt with the merits first and then proceeded to the question of whether the proceedings should be stayed. There are at least two advantages to this approach. If the Crown had not proved the case against the respondents they were entitled to an acquittal, and not just a stay of proceedings. Secondly, by deciding the merits of the case and then the merits of the abuse of process application, the parties could have brought all appeals to this court at the same time and we could have brought an end to this matter. As it stands, there has been no determination on the merits and we must order a new trial.

[56] And, in a recent case involving the Crown's failure to preserve evidence, the Ontario Court of Appeal in R. v. Sheng, 2010 ONCA 296, [2010] O.J. No. 1666, at paras. 65 to 70, clearly set out the steps and procedure to utilize in deciding whether the Crown's failure to preserve relevant evidence had breached its disclosure obligations, as well as reiterating that it is appropriate to wait until the end of the case before determining that issue. The Court also stated that a stay of proceedings is an appropriate remedy if the Crown has breached its disclosure obligations if a lesser remedy is not appropriate. Furthermore, the Court held that after considering the merits of the case, if the accused is to be acquitted, then that would end the question on whether there had been a breach of the Crown's disclosure obligations. However, if the accused is not entitled to an acquittal and the trial judge finds that there had been a breach, then the trial judge should then consider the breach's effect on the fairness of the trial and whether the lost evidence had been so prejudicial to the defence that it would warrant a stay. And, if the trial judge should stay the proceedings, then it should not make any findings of guilt. On the other hand, if the lost evidence only warranted a lesser remedy, then the trial judge should give effect to that lesser remedy before considering whether the accused is guilty. And, if the trial judge ascertained that the lost evidence should be factored into the assessment of the credibility and reliability of the complainants' testimony or the testimony of prosecution witnesses, then the trial judge should perform that assessment in deciding whether the accused is guilty:

The trial judge did not err by waiting until the end of the trial to assess whether the prejudicial impact of the evidence justified a stay: see La at para. 27. The degree of prejudice ordinarily is best assessed after all the evidence is in. Moreover, before deciding on the stay the trial judge properly addressed the merits. That was the proper approach because if, on the evidence led, the Crown had not proved the case against the respondent, then he was entitled to an acquittal and not just a stay: see R. v. Scott.

However, once the trial judge determined that the respondent was not entitled to an acquittal, he should then have considered whether the lost evidence compromised the fairness of the trial. If he concluded that the lost evidence was so prejudicial to the accused's defence that it warranted a stay, he should have stayed the proceedings, and not made any findings of guilt. If he concluded that the lost evidence warranted a lesser remedy, he should have given effect to that remedy before considering whether the accused was guilty. If he considered that the lost evidence should be factored into the assessment of the credibility and reliability of the complainants' testimony, he should have performed that assessment in deciding whether the accused was guilty.

The procedure the trial judge followed parallels the accepted procedure when entrapment is raised by the defence and, in fairness to the trial judge, the procedure suggested in some of the cases dealing with lost evidence. An application for a stay because of lost evidence and an application for a stay because of entrapment bear some similarities. But I see the two differently.

When entrapment is claimed, the trial judge first determines guilt or innocence; if the trial judge finds the accused guilty then the trial judge goes on to consider whether to stay the proceedings because of entrapment. This two-stage process where guilt is determined first is appropriate because a claim of entrapment has nothing to do with the fairness of the trial, or the culpability of the accused. It has to do with whether it was fair to even have a trial: see R. v. Imoro (2010), 2010 ONCA 122, 251 C.C.C. (3d) 131 (Ont. C.A.).

The two-stage process for entrapment is not appropriate when a stay is sought because evidence has been lost or destroyed. Lost evidence potentially compromises the fairness of the trial itself. A stay because of lost evidence is granted where the missing evidence is so prejudicial that the accused cannot receive a fair trial. Thus, if the trial judge decides not to acquit, the trial judge should then rule on the stay application.

If we were to reinstate the guilty verdicts, we would be permitting the Crown to take advantage of the procedure adopted by the trial judge. Doing so offends my sense of fairness. If the trial judge had followed the procedure I have outlined, he would have granted a stay and made no findings of guilt. Having allowed the Crown's appeal and set aside the stay, we would simply have ordered a new trial.

[57] Ergo, since it is not clear or patent that there has been a Charter infringement of the defendant's right to make full answer and defence that would impact on a fair trial, due to the prosecution's failure to disclose, produce, or preserve the video of the collision evidence, or clear that no other course of action would cure the prejudice caused by the prosecution's conduct, which would justify an immediate stay of the proceedings, then it must be first decided whether the prosecution has proven beyond a reasonable doubt that the defendant has committed the "turn not in safety" offence.

(B) Has The Prosecution Proven The Actus Reus Of The Offence Beyond A Reasonable Doubt?

[58] The turn not in safety offence set out in s. 142(1) of the Highway Traffic Act, is a strict liability offence in which the prosecution only has to prove that the defendant had committed the actus reus of the offence beyond a reasonable doubt and is not required to prove any mental element or that the defendant had the intent to commit the offence: R. v. Jackson, [2010] O.J. No. 4521 (O.C.J.); R. v. Hamid, [2008] O.J. No. 2059 (O.C.J.); R. v. Trevisan, [2009] O.J. No. 606 (O.C.J.); and R. v. Dillman, [2008] O.J. No. 1120, 68 M.V.R. (5th) 272 (O.C.J.).

[59] Moreover, once the prosecution fulfills their burden in proving beyond a reasonable doubt that the defendant made the right turn before first seeing that the movement could be made in safety, negligence is presumed, unless the accused can prove on a balance of probabilities he had not been negligent, or that he took all reasonable care for the circumstances to avoid committing the prohibited act, or that he acted under a reasonable mistake of fact, if believed, would make his conduct innocent: R. v. Sault Ste. Marie (1978), 40 C.C.C. (2d) 353 (S.C.C.).

[60] Accordingly, a two-stage inquiry is required for determining whether the defendant has committed the strict liability offence in question beyond a reasonable doubt. For the first stage of the inquiry, the prosecution is required to prove beyond a reasonable doubt that the defendant has committed the prohibited act set out in s. 142(1) of making a right turn before first ensuring that the movement could be made in safety. If the prosecution fulfils its burden of proof, then in the second stage of the inquiry the defendant has the onus to prove on a balance of probabilities the defence of due diligence or that he had been neither negligent nor at fault in committing the prohibited act in order to be acquitted of the offence.

[61] In their closing argument, the prosecution submits that although the defendant had said he had believed the truck driven by Hardeep Ajimal had been parked, it had indeed not been parked, but in motion before the defendant had commenced to make his right turn. In addition, the defendant had testified that he did not look again at the Ajimal truck after the defendant had gone past the Ajimal truck, and as a result of making that right turn into the private driveway a collision had occurred between the defendant's truck and trailer and the Ajimal truck, which had also being moving forward to make the same right turn. Therefore, the prosecution contends that the defendant had commenced his right turn into the private driveway before it had been safe to do so. Moreover, the defendant had acknowledged that he had observed on the video of the collision that the Ajimal truck had indeed been in motion when the collision occurred.

[62] However, in response to the prosecution's closing arguments, the defendant contends that Hardeep Ajimal had started his transport truck from a stopped position at the curb when it had not been safe to do so, and that the defendant had the right of way to make the right turn into the private driveway over that of the Ajimal transport truck. In addition, the defendant had mistakenly believed that the transport truck driven by Hardeep Ajimal had been parked by the curb and had not actually realized that the Ajimal truck had been in motion when the defendant commenced his right turn into the private driveway located at 7347 Kimbel Street. On the other hand, the defendant had testified that he had observed on the video of the collision that the Ajimal truck had not been in motion until after the defendant's truck and trailer had gone past or ahead of the Ajimal truck by 10 to 15 feet.

[63] Therefore, the defendant has raised the mistake of fact defence to obtain an acquittal of his charge, which is based on the defendant's mistaken belief that the transport truck being driven by Hardeep Ajimal had been parked by the curb and that he had not actually realized that the Ajimal truck had been in motion when he had commenced to make his right turn into the private driveway.

[64] First of all, there is no dispute between the parties as to the date, time, and location of the collision in question, or that the defendant had been the driver of the truck and trailer that had been making a right turn into the private driveway at 7347 Kimbel Street in Mississauga when it had collided with the transport truck being driven by Hardeep Ajimal.

[65] In addition, Hardeep Ajimal, the driver of the other transport truck involved in the collision with the defendant's truck and trailer, had testified that that he had been in motion and that a truck, from the same company that he was working for, had been directly in front of his truck, and that particular truck had been in motion for 30 seconds in making the right turn into the private driveway. He also said that he had just turned right and been in the driveway when the defendant's truck and trailer had come from back of him to his left, overtook his truck, and then quickly made a right turn. He then said that the backside of the defendant's trailer had come into contact with his truck. He also said that they were both going in the same direction and that the defendant's truck had been beside him in the one lane. However, he said that the defendant's truck, which had passed him, did not work for the same company that he had worked for.

[66] On the other hand, the defendant had testified that he had driven past two of the three trucks he had observed parked at the curb near the entrance to the private driveway, when he had observed the driver for the first truck that was parked nearest the entrance to the private driveway had been initially standing outside of the first truck, but then had observed that particular driver immediately enter the first truck, start that truck, and then observed that first truck begin to move forward to make a right turn into the same private driveway he had been intending to turn into. As a result, the defendant said that he had to wait for that first truck that had been near the entrance to the private driveway to complete the right turn into the driveway before he could commence to turn into the same driveway. However, at that time, the defendant said he that did not actually realize that the second truck, which was being driven by Hardeep Ajimal, and in which the defendant had believed had been parked by the curb, had also been in motion with the same intention as the defendant of making a right turn in the private driveway, when the defendant had commenced to make his right turn into the driveway. The defendant then said his trailer collided with the front part of that second truck. In addition, the defendant said that he had not looked at that second truck again after he had passed it, as he had believed that it had been parked by the curb.

[67] However, although Hardeep Ajimal had testified that he had signaled that his truck was making a right turn, there is no evidence or suggestion that Ajimal had honked his horn as a warning to the defendant that Ajimal had also been intending to make a right turn into the same private driveway and that Ajimal's truck had been next in the queue to make the right turn. Nor, did Ajimal testify to seeing the defendant's truck and trailer stopped beside the first truck, waiting for the first truck to complete its turn. On the other hand, the defendant had testified that the video of the collision had shown that the defendant's truck and trailer had gone past the Ajimal transport truck by 10 to 15 feet before the Ajimal truck had commenced its motion or movement forward, which would be evidence that supports the defendant's mistaken belief that the second transport truck, which was being driven by Hardeep Ajimal, had been parked by the curb. Moreover, there is also no evidence or suggestion that the defendant had observed a right turn signal being visible on the Ajimal transport truck.

(1) Were there two trucks or three trucks parked by the curb?

[68] There had been conflicting testimony on whether there had been two trucks or three trucks parked by the curb near the entrance to the private driveway at 7347 Kimbel Street. Hardeep Ajimal had testified at the beginning of his testimony that there had been no truck behind him, as there had only been two trucks in line. However, later in his testimony Ajimal said that when he moved he had watched for traffic around him and had observed a truck in front of him, a truck parked on the other side of the roadway, and a truck behind him. On the other hand, the defendant had testified that he had observed two "straight" trucks parked by the curb, but later testified there had been three trucks that had been parked on the side and that there had been another truck that had been behind the second truck, and that he had passed all three of those parked trucks.

[69] In respect to Hardeep Ajimal's testimony on the number of trucks that he had observed in front of him and behind him, it is not logically inconsistent. He had emphasized that there had been no truck behind him and that there had only been two trucks in line, but then said that he had observed a truck behind him when he had been checking in his mirror without specifically identifying that particular truck as the defendant's truck and trailer. As such, Ajimal could have been referring to observing a truck behind him that had been the defendant's truck and trailer or another truck that was not the defendant's truck and trailer.

[70] And, in respect to the defendant's testimony on the number of trucks parked by the curb, it is also not logically inconsistent. The defendant had initially testified about observing two trucks parked by the curb that he had described as two "straight" trucks, but when following the sequence and logic of his testimony, he had been testifying about the two trucks that he had been most directly involved when the defendant was describing his right turn into the private driveway. Specifically, he had first described that he had to yield to the first "straight" truck that was turning into the private driveway and then had collided with the second "straight" truck that he had mistaken believed had been parked. However, he did not describe the type of truck that the third truck in line had been, so that it could be reasonably inferred that he had recognized that the first two trucks in line had both been straight transport trucks when he had made reference to observing two "straight" trucks. The defendant's testimony, therefore, is not inconsistent that he had observed two straight transport trucks parked by the curb of three trucks he had observed parked at the curb.

[71] However, based on the circumstances of where the damage had occurred on the defendant's trailer, the position of that damage in respect to the length of the defendant's tractor and trailer would contradict Hardeep Ajimal's testimony that Ajimal's truck had been in the driveway when the defendant's truck and trailer had come from behind and passed Ajimal's truck, and then quickly turned right and collided with Ajimal's truck. Therefore, if the Ajimal truck would have already been in the driveway and there had not been a third truck that had been behind the Ajimal truck then the damage to the defendant's truck and trailer should have occurred closer to the front of the defendant's truck than to the middle of the defendant's trailer. As such, it is more logical that there had been three trucks parked at the curb, so that the damage to the middle of the defendant trailer is consistent with the defendant's testimony and with the evidence on the circumstances surrounding the collision occurring, and that there were likely three trucks that had been parked by the curb when the defendant had approached the private driveway.

(2) What weight, if any, should be placed on the testimony of Cst. Coupland and on the testimony of the defendant on what they had individually and respectively observed on the video of the collision?

[72] Officer Coupland had testified that the video had revealed that the transport truck being driven by Hardeep Ajimal had already been in motion before the defendant's truck and trailer had actually began its right turn into the private driveway, and that the Ajimal truck had also been in motion when the collision had occurred. However, the defendant had also testified that when he had passed the Ajimal truck he had believed that it had been parked by the curb and that he had not actually realized that the Ajimal truck had been in motion when he had commenced to make his right turn into the private driveway. In addition, under cross-examination the defendant had admitted to observing on the video of the collision that the Ajimal truck was in motion when the collision occurred, but that the video had also shown that the defendant's truck and trailer had already gone past the Ajimal truck by 10 to 15 feet before the Ajimal truck had begun to actually be in motion or had begun to move forward.

[73] Moreover, both Cst. Coupland's and the defendant's testimony about what they had observed on the video do not invoke any hearsay issues. They had only described what they had observed of the physical acts or movements of objects on the video of the collision and not of any person's gestures, which would imply a communicative statement or message. As such, both their testimony can be considered as admissible evidence, and will carry and be considered for their appropriate weight.

(3) Has The Prosecution Made A Prime Facie Case That The Defendant Had Made The Right Turn When It Had Not Been Safe To Do So?

[74] There is no dispute that there had been a collision between the defendant's truck and trailer and the transport truck driven by Hardeep Ajimal, nor that the collision had occurred while the defendant's truck and trailer had been making a right turn into the private driveway located at 7347 Kimbel Street. In addition, the defendant had testified that he had not looked at the Ajimal truck again after the defendant had gone past the Ajimal truck and that he did not realize that the Ajimal truck had actually been in motion before the defendant had started to turn right into the private driveway, since the defendant had mistakenly believed that the Ajimal truck had been parked by the curb. Moreover, the defendant said that he does not look at vehicles that are parked, unless they are moving.

[75] Furthermore, the location of the damage to the middle of the trailer on the passenger side of the defendant's trailer and to the front driver's side of the Ajimal truck is consistent with the Ajimal truck being very close in distance to the defendant's truck and being close to the entrance of the private driveway while the defendant's truck and trailer was turning right into that private driveway. And, since the defendant did not look at the Ajimal truck again using his passenger-side mirrors before commencing his right turn, is prime facie evidence that the defendant had begun to make the right turn before it had been safe to do so, and that the defendant had not checked to see that he could turn his truck to the right safely before he had commenced to make the right turn.

[76] Ergo, based on the evidence, the prosecution has proven that the defendant has committed the actus reus of the offence set out in s. 142(1) beyond a reasonable doubt. However, before finding that the defendant would be guilty of committing the offence, the defendant may still be entitled to an acquittal if the defendant can prove on a balance of probabilities that he had taken all reasonable care in the circumstances to avoid committing the offence, or that he had been acting under a mistaken set of facts, which if true, would make his act innocent.

[77] Accordingly, the prosecution has met their burden in proving that the defendant committed the actus reus of the offence, since there had been a collision between the two transport trucks as a result of the defendant attempting to turn right into the private driveway, as well as the defendant having testified to not looking again at the Ajimal truck once he had passed it to see if the Ajimal truck was moving or to see that he could make the right turn into the private driveway safely, before he had commenced to make the right turn.

(C) Has The Defendant Proven The Defence Of Due Diligence On A Balance of Probabilities?

[78] The first branch of the due diligence defence of taking all reasonable care for the circumstances to prevent or avoid the event from occurring does not apply to the defendant, since the defendant had failed to look at the Ajimal transport truck again after the defendant had passed it to first see that before making the right turn, that it could be made in safety.

[79] However, the second branch of the due diligence defence of acting under a mistaken belief of facts, which if true, would make the defendant's act innocent, may apply to the defendant's circumstances.

(1) Mistake Of Fact Defence

[80] In the seminal case of R. v. Sault Ste. Marie, 40 C.C.C. (2d) at p. 374 (S.C.C.), Dickson, J. explained that the mistake of fact defence would be available if the accused reasonably believed in a mistaken set of facts, which if true, would render the act or omission innocent:

The defence will be available if the accused reasonably believed in a mistaken set of facts, which if true, would render the act or omission innocent, or if he took all reasonable steps to avoid the particular event.

[81] Moreover, in Libman on Regulatory Offences in Canada, (Salt Spring Island, B.C.: Earlscourt Legal Press Inc., 2002) ((looseleaf) update 11 – February 2008), the author, Justice Libman, explained that unlike the application of the mistake of fact defence for a true criminal or mens rea offence, where the mistaken belief need only be genuine or honestly held, the mistaken belief required for strict liability offences in contrast must be both "an honest and reasonable mistake of fact":

In strict liability offences, it is open to the defendant to establish the defence of reasonable mistake of fact, but not in cases of absolute liability, as where the accused is found to be speeding on account of a faulty speedometer, or claims to have misread the speed limit sign.

A reasonable belief in a mistaken set of facts which, if true, would render the act or omission innocent is a defence to most environmental offences that are strict liability offences. Unlike a true criminal or mens rea offence, where the mistaken belief need only be genuine or honestly held, for strict liability offences the mistaken belief must be "an honest and reasonable mistake of fact". The defendant is required to take reasonable steps to make himself or herself aware of the true state of affairs. As Berger notes, the defence is not available to a defendant who knew the true facts but failed to draw the correct conclusion respecting the risk of accident or error.

[82] For this defence, the defendant had testified that after passing two straight transport trucks of three trucks in line that he had observed located by the curb near the entrance to the private driveway, and in which he had believed that they had been parked, then had noticed that the first truck in line and closest to the entrance of the private driveway had also been attempting to turn right into the same private driveway where he had been intending to turn into. He then said he had stopped his truck and trailer to allow that first truck to make the right turn and enter the private driveway before he would commence his turn. However, when he did start his right turn into the private driveway, the middle of the passenger side of his trailer collided with the front of the second truck of the three trucks that he had believed had been parked by the curb.

[83] Moreover, the defendant's mistaken belief that the second truck of the three trucks, which had been driven by Hardeep Ajimal, had been parked by the curb before the defendant had actually commenced his right turn into the private driveway, would be the basis of a mistake of fact defence that is permitted for a strict liability offence. In other words, if the defendant had been acting under an honest and reasonable mistake of fact which, if the facts had been as the defendant believed them to be, would have rendered his act of turning right before it had been safe to do so an innocent act, so that the defendant would be acquitted of the offence that he has been charged with.

(a) Was the defendant's mistaken belief that the Ajimal transport truck had been parked by the curb before he commenced the right turn been both honest and reasonable?

[84] Based on the evidence and the logical and reasonable inferences from that evidence, the defendant's mistaken belief that the Ajimal transport truck had been parked by the curb before the defendant had commenced his right turn is both subjectively and objectively plausible.

[85] Even though Hardeep Ajimal had testifed that there had only been two trucks in line and that he had his right turn signal on as an indication of Ajimal's intention to make a right turn into the private driveway into the yard of 7347 Kimbel Street, the evidence does not show that the defendant could have reasonably seen the right turn signal engaged on the Ajimal truck, especially if the view of the rear of the Ajimal truck had been blocked, as alluded to in the defendant's testimony, by the third truck that would have been situated behind the Ajimal truck.

[86] Moreover, the evidence does not clearly show that the Ajimal truck had been moving forward at a speed which could be easily discernible by other motorists coming towards the Ajimal truck from behind the Ajimal truck, or while they were driving beside the Ajimal truck, or after they have driven past the Ajimal truck, since Ajimal had testifed that the transport truck situated directly in front of the Ajimal truck had taken approximately 30 seconds to complete its right turn into the private driveway. This evidence that the first truck had taken 30 seconds to complete the right turn would logically infer that the Ajimal truck, which had been directly behind that first transport truck, would have also been moving forward at a very slow speed and its motion may not necessily be discernible to the defendant before and after the defendant had passed the Ajimal transport truck.

[87] In addition, there is no evidence or suggestion that Hardeep Ajimal had honked his horn to warn the defendant that Ajimal had also been intending to make a right turn into the same private driveway, and that Ajimal had been next in line to make that right turn. Also, considering that if the defendant's truck and trailer had been stopped near the entrance to the private driveway in order to allow the first transport truck in line to complete the right turn, then Hardeep Ajimal, who had been directly behind the first truck and who had been moving slowly behind that first truck that had just made that right turn into the private driveway, should have or ought to have seen at that point when the first truck had been making the right turn into the private driveway that the defendant's truck had been stopped to the left of the first truck near the entrance to the private driveway, and also attempting to make the same right turn into the private driveway while waiting for the first truck to complete the right turn. As such, Ajimal could or should have honked his truck's horn in order to warn the defendant that Ajimal was also making a right turn into that same private driveway and that Ajimal had been next in line to make that right turn, or to warn the defendant that the defendant's truck and trailer had been too close in proximity to Ajimal's truck.

[88] Moreover, in respect to that sceanrio the defendant had been stopped near the entrance to the private driveway to allow the first truck to make the right turn, then Hardeep Ajimal should have, or ought to have, logically seen the defendant's truck attempting to make the same right turn into the private driveway based on where the defendant's truck and trailer would have been stopped near the entrance to the private driveway. On the other hand, Ajimal's testimony that the defendant's truck and trailer had come from his back of him and to his left and then had quickly made the right turn where it had collided with the front part of Ajimal's truck would infer that the defendant's truck had not been stopped near the entrance to the private driveway while it had been waiting for or allowing the first truck to complete its right turn into the private driveway.

[89] In addition, Ajimal had not testified about seeing the defendant's truck and trailer being stopped beside the first truck and waiting for the first truck to make the right turn into the private driveway. However, as the first truck had taken 30 seconds to complete the right turn, then Ajimal, whose truck would have also been moving at a very slow speed, should have seen the defendant's truck and trailer near the entrance to the private driveway before the defendant had begun to make the right turn. As such, Ajimal's testimony, which infers that the defendant's truck had not been stopped near the entrance of the driveway waiting for the first truck to complete the right turn, but that the defendant's truck and trailer had come from behind his truck and then quickly turned right and collided with Ajimal's truck, is inconsistent with where the damage on the middle of the passenger side of the defendant's trailer had occurred, which is consistent with the defendant's truck and trailer already being past the Ajimal truck before the defendant had commenced its right turn, that the defendant's truck and been stopped near the entrance to the driveway waiting for the first truck to complete the right turn, and consistent with the defendant's testimony that he had believed the Ajimal truck had been parked by the curb.

[90] Furthermore, if the defendant's truck and trailer had come from behind Ajimal and quickly cut off Ajimal, as Ajimal had testified to, then the damage to the defendant's truck and trailer should have been closer to the front of the defendant's truck and trailer, instead of to the middle of the defendant's trailer.

[91] The defendant had also testified that he did not see any signal on the Ajimal truck indicating that there had been an intention from the Ajimal truck that it was planning to make a right turn into the private driveway. Moreover, as testified to by the defendant, that there had been three trucks in line parked beside the curb as the defendant approached the private driveway, so that if the third truck in line that had been directly following the Ajimal truck had been very close to or immediately behind the Ajimal truck, so that the distance between the Ajimal truck and the third transport truck had been close to each other, then the defendant's view of any visible signals on the Ajimal truck indicating an intention to make a right turn into the private driveway, may have possibly been obstructed and not visible to the defendant as the defendant drove past the Ajimal truck.

[92] Also, in describing the actions of the truck and trailer that had passed him on his left, Hardeep Ajimal had said that he had checked his mirrors and had observed that there had been no one there and that the defendant's truck had been back of him and that Ajimal had been in the driveway when the defendant had come and quickly turned right. However, if the Ajimal truck would have been already in the driveway, then the defendant should have or ought to have seen the Ajimal truck positioned in the driveway to avoid turning right, or that the collision in this scenario would have logically then caused damage to the defendant's truck and trailer closer to the front of the defendant's truck and trailer, instead of the damage occurring to the middle of the defendant's trailer. As such, the Ajimal transport truck could not have already been in the driveway before the defendant had commenced his right turn.

[93] And, to reiterate, the defendant's mistaken belief that the transport truck driven by Hardeep Ajimal had been parked by the curb before he commenced to make his right turn into the private driveway is both honest and reasonable. And, even though there is evidence that the transport truck driven by Hardeep Ajimal had already been in motion before the defendant had even commenced his right turn, Ajimal had also testified that the truck immediately in front of his truck had taken 30 seconds to complete the right turn, which would have to logically infer that Ajimal's truck had to have been moving at a very slow speed forward. Furthermore, because transport trucks are fairly long in length, so that when another motorist is driving alongside or while passing a slow-moving transport truck, the slowly moving truck may seem to be stopped or motionless, if the driver of the faster moving vehicle going beside or past the slowly moving truck cannot see the entire truck relative to a fixed stationary object, to be able to recognize or realize that the slowly moving truck is actually moving. In addition, the distance over which the Ajimal truck could have been in motion for would have only been for a relatively short distance, again based on the 30 seconds it took for the first transport truck to complete the right turn, so that it would have been difficult for the defendant to notice or ascertain whether the Ajimal truck, which would have been moving very slowly, had actually been in motion or moving forward before the defendant would have commenced its right turn. Also, the defendant said there had been three transport trucks parked at the curb when he went passed them to make the right turn into the private driveway. Although Ajimal said that he had activated his right turn signal, there is no evidence or suggestion that the defendant had seen or ought to have seen the right turn signal of the Ajimal truck when he drove passed the Ajimal truck. Moreover, there had been evidence from the defendant that there had been a third truck in line that was behind the Ajimal truck, so that the third truck in line (the one behind the Ajimal truck) could have obstructed or blocked the right turn signal of the Ajimal truck being visible to the defendant driving to the left of those three trucks situated beside the curb.

[94] More important, the defendant had testified that the video of the collision had actually shown that the Ajimal transport truck had not commenced to be in motion until after the defendant's truck and trailer had already gone past the Ajimal truck by 10 to 15 feet. This testimony of what he had seen on the video is also evidence that supports the defendant's mistaken belief that the Ajimal truck had been parked by the curb, since the Ajimal truck would have seemed motionless when the defendant had first approached the rear of the Ajimal truck and then while driving past it.

[95] Therefore, the defendant's mistaken belief that the Ajimal transport truck had been parked by the curb when he began his right turn is both honest and reasonable. As such, the defendant has proven the mistake of fact defence on a balance of probabilities, so as to make the defendant's act innocent in making the right turn into the private driveway before it had been safe to do so. As such, an acquittal will be entered for the defendant.

(D) EFFECT OF THE PROSECUTION'S FAILURE TO PRESERVE, PROVIDE, OR DISCLOSE THE VIDEO EVIDENCE ON A FAIR TRIAL

[96] Although the defendant has established the mistake of fact defence on a balance of probabilities that acquitted him of the turn not in safety charge, which would end the matter and the need to determine if there had been an infringement of the Charter, it would still be useful to comment on the consequences of the lost or destroyed video evidence to the fairness of the trial. Especially, considering that the video of the collision would have been important to both the prosecution and the defence in either proving the defendant committed the offence or in proving the defendant's mistake of fact defence, as well as for the court in assessing the credibility of the defendant's and Hardeep Ajimal's testimony given at trial. Moreover, the prosecution had an obligation to disclose, produce, or preserve evidence that is relevant, even when it is a video that is only accessible on a third party website that could be easily removed or destroyed by the third party.

[97] To repeat, the defendant is guaranteed under the Charter the right to make full answer and defence and to have a fair hearing respectively under s. 7 and s. 11(d), which requires the prosecution to provide full disclosure in order that the defendant's rights under those two sections are not infringed:

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.

8. Any person charged with an offence has the right

(d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal;

[98] In addition, if the defendant's right to make full answer and defence and to have a fair hearing has been infringed or denied, due to the failure of the prosecution to disclose, provide, or preserve the video evidence of the collision, then a remedy which is appropriate and just in the circumstances may be granted under s. 24(1) of the Charter:

24(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(1) Lost Or Destroyed Evidence

[99] With respect to lost or destroyed evidence, the majority of the Supreme Court of Canada in R. v. La, [1997] 2 S.C.R. 680, at paras. 23 to 26, in which the audiotape statement of the complainant in that case had been lost, recognized that the right to make full answer and defence can be infringed by lost or destroyed evidence or a failure of the prosecution to preserve evidence. Moreover, in his majority judgment in R. v. La, Sopinka J. held that where the Crown has met its disclosure obligations, then in order for the accused to make out a breach of s. 7 on the basis of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence. Notably, this requirement of the accused to prove actual prejudice to their right to make full answer and defence did not follow Sopinka J.'s judgment in R. v. Carosella, [1997] 1 S.C.R. 80 (S.C.C.), where he had held for the particular circumstances of that case that the accused did not have to prove actual prejudice to the accused's right to make full answer and defence due to lost or destroyed evidence. In particular, Sopinka J. noted that the situation in R. v. La was distinguishable from the circumstances in R. v. Carosella, since the accused in Carosella had not been required to prove actual prejudice to their right to make full answer and defence because there had been a deliberate effort by a third party to destroy evidence, unlike the situation in R. v. La, where the lost or destroyed evidence had not been deliberately or intentionally destroyed. Furthermore, Sopinka J. had re affirmed in R. v. La that the majority's decision in Carosella had been distinguishable from lost evidence cases in general because there had been a deliberate effort to destroy evidence in order to frustrate the court's process and its jurisdiction over the admissibility of evidence:

In either case, whether the Crown's failure to disclose amounts to an abuse of process or is otherwise a breach of the duty to disclose and therefore a breach of s. 7 of the Charter, a stay may be the appropriate remedy if it is one of those rarest of cases in which a stay may be imposed, the criteria for which have most recently been outlined in O'Connor, supra. With all due respect to the opinion expressed by my colleague Justice L'Heureux-Dubé to the effect that the right to disclosure is not a principle of fundamental justice encompassed in s. 7, this matter was settled in Stinchcombe (No. 1), supra, and confirmed by the decision of this Court in R. v. Carosella, [1997] 1 S.C.R. 80. In Stinchcombe (No. 1) the right to make full answer and defence of which the right to disclosure forms an integral part was specifically recognized as a principle of fundamental justice included in s. 7 of the Charter. This was re affirmed in Carosella. In para. 37 I stated on behalf of the majority:

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 in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused's constitutional rights without the requirement of an additional showing of prejudice. To paraphrase Lamer C.J. in Tran [, [1994] 2 S.C.R. 951], the breach of this principle of fundamental justice is in itself prejudicial. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter.

The Crown's obligation to disclose evidence does not, of course, exhaust the content of the right to make full answer and defence under s. 7 of the Charter. Even where the Crown has discharged its duty by disclosing all relevant information in its possession and explaining the circumstances of the loss of any missing evidence, an accused may still rely on his or her s. 7 right to make full answer and defence. Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy, provided the criteria to which I refer above have been met.

It is not necessary to elaborate a test to be used in such cases in order to deal with the case at bar. Suffice it to say that, where the Crown has met its disclosure obligations, in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence. This requirement is seen most clearly in lost evidence cases reviewed by my colleague Justice L'Heureux-Dubé in her reasons in Carosella, supra; see paras. 76-80.

The appellant sought to draw a parallel between this case and Carosella which was released immediately before the hearing of this appeal. The two cases, however, are clearly distinguishable. In Carosella, the documents which were destroyed were relevant and subject to disclosure under the test in O'Connor, supra. The conduct of the Sexual Assault Crisis Centre destroyed the accused's right under the Charter to have those documents produced. That amounted to a serious breach of the accused's constitutional rights and a stay was, in the particular circumstances, the only appropriate remedy. Where, however, the evidence has been inadvertently lost, the same concerns about the deliberate frustration of the court's jurisdiction over the admission of evidence do not arise. As the following passage from the majority judgment (at para. 56) attests, we expressly distinguished the case from the lost evidence cases generally:

The justice system functions best and instils public confidence in its decisions when its processes are able to make available all relevant evidence which is not excluded by some overriding public policy. Confidence in the system would be undermined if the administration of justice condoned conduct designed to defeat the processes of the court. The agency made a decision to obstruct the course of justice by systematically destroying evidence which the practices of the court might require to be produced. This decision is not one for the agency to make. Under our system, which is governed by the rule of law, decisions as to which evidence is to be produced or admitted is for the courts. It is this feature of the appeal in particular that distinguishes this case from lost evidence cases generally. [Emphasis added.]

[100] In addition, Sopinka J., in his majority judgment in R. v. La, [1997] 2 S.C.R. 680, held at para. 1, that when the Crown has lost evidence that should have been disclosed then the Crown has a duty to explain to the trial judge what had happened to it and if the trial judge is satisfied with the explanation, then the Crown will have discharged their constitutional obligation to disclose. However, if the explanation is not satisfactory to the trial judge, then there will be a breach of the Charter that would result from the loss or destruction of the relevant evidence. Moreover, Sopinka J. reasoned that, even when there is a satisfactory explanation given and no abuse of process found, then a remedy in an extraordinary case may still be available if the lost evidence is so important that its loss would render a fair trial problematic:

This case raises the issue of whether the Crown has breached its disclosure obligations when through innocent inadvertence it loses evidence that would otherwise be disclosed. … I find that when the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. So long as the explanation is satisfactory, it discharges the Crown's constitutional obligation to disclose. There will, however, be a breach of the Canadian Charter of Rights and Freedoms if the explanation does not satisfy the trial judge. Moreover, I would not rule out a remedy in the extraordinary case in which a satisfactory explanation is given for the loss of evidence and no abuse of process is found, but the evidence is so important that its loss renders a fair trial problematic.

[101] Sopinka J. also held at para. 20 in R. v. La, that the Crown's duty to disclose under Stinchcombe (No.1) also gives rise to an obligation to preserve relevant evidence, and where the evidence had not been preserved, then the obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of their investigation, and that where the Crown is unable to satisfy the trial judge in this regard, it will have failed to meet its disclosure obligations, which would then be a breach of s. 7 of the Charter:

This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's 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. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

[102] Furthermore, for a succinct guide in respect to the impact of lost evidence on a fair trial and when a stay of proceedings would be appropriate, the Court of Appeal for Ontario in R. v. Bradford (2001), 151 C.C.C. (3d) 363, at paras. 4 and 5 of their reasons, had adopted the summary for this area of the law that had been prepared by the Nova Scotia Court of Appeal in R. v. B. (F.C.) (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540:

The current state of the law respecting the impact of lost evidence and when a stay should be granted is succinctly summarized in R. v. B. (F.C.) (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-8, leave to appeal to the Supreme Court of Canada denied, [2000] S.C.C.A. No. 194:

The basic principles … were summarized by Sopinka J. in R. v. La, supra, commencing at para. 16. Those principles derived from R. v. Stinchcombe (No. 1), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1; R. v. Egger, [1993] 2 S.C.R. 451, 82 C.C.C. (3d) 193; R. v. Stinchcombe (No. 2), supra; R. v. Chaplin, [1995] 1 S.C.R. 727, 96 C.C.C. (3d) 225; R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.); and, R. v. Carosella, supra, and further developed in La, are:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown's duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused's s. 7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O'Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

The O'Connor criteria referred to in the eighth point are as stated by Justice L'Heureux-Dubé at para. 82 of O'Connor:

It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

Earlier, in O'Connor, supra, the two criteria for a stay referred to in the eighth point are expressed by Professor Paciocco and adopted by L'Heureux-Dubé J., at p. 41, as comprising:

(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

(2) no other remedy is capable of removing the prejudice.

[103] In addition, at paras. 6 to 8 in R. v. Bradford, the Court of Appeal for Ontario reiterated that in assessing prejudice to the accused's right to make full answer and defence, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. In addition, the Court of Appeal noted that even where an accused is deprived of relevant information it does not mean that the accused's right to make full answer and defence is automatically breached. Moreover, the Court reiterated that actual prejudice must be established and further reasoned that where a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence, and that actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult:

In assessing the prejudice to the accused's right to make full answer and defence as secured by s.7 of the Charter, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. As stated by McLachlin J. in R. v. O'Connor, supra, at pp. 78-79:

… the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial that is fundamentally fair: R. v. Harrer, [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice but fundamentally fair justice.

In a similar vein, Justices McLachlin and Iacobucci commented in R. v. Mills, [1999] 3 S.C.R. 668 at 718 that fundamental justice embraces more than the rights of the accused and that the assessment concerning a fair trial must not only be made from the point of view of the accused but the community and the complainant. The fact that an accused is deprived of relevant information does not mean that the accused's right to make full answer and defence is automatically breached. Actual prejudice must be established: Mills, supra, 719-720, citing R. v. La, [1997] 2 S.C.R. 680 at 693.

The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration. For example, in B.(F.C.), supra, the court held that where the complainant's signed statement was lost, but a typed transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v. J.D., a judgment of the Ontario Court of Appeal, delivered May 30, 1996, [1996] O.J. No. 1907, although the complainant's statement was lost, the officer's notes were available and the court held that it was speculative whether there were any inconsistencies between the complainant's statement and the officer's notes.

[104] Once again, the video evidence of the collision between the defendant's truck and trailer and the transport truck driven by Hardeep Ajimal, if it had been available and shown to the court, could have aided the prosecution in proving the turn not in safety charge or it could have aided the defendant's mistake of fact defence. Both Cst. Coupland and the defendant had testified to observing the straight transport truck driven by Hardeep Ajimal to be in motion before the collision had occurred. Moreover, Coupland had also testified to observing on the video of the collision that Ajimal's truck had already been in motion before the defendant's truck and trailer had actually commenced to turn right into the private driveway at 7347 Kimbel Street, in Mississauga. Cst. Coupland also said that after observing the contents of the video, which had captured the collision, it had caused her to form the opinion that the defendant had committed the turn not in safety offence. On the other hand, the defendant testified that although the video showed that the Ajimal transport truck had been in motion before the collision had occurred, the defendant said he had believed that the Ajimal transport truck had been parked by the curb and that the video had showed that the defendant's truck and trailer had already gone past the Ajimal transport truck by a distance of 10 to 15 feet before the Ajimal truck had actually begun moving forward, which would be evidence that would have supported the defendant's belief that the Ajimal truck had been parked when he began his right turn.

[105] However, without being able to view the video of the collision as the trier of fact, questions which would arise, include, whether the defendant's subjective belief that the transport truck driven by Ajimal had been parked would be objectively reasonable; on how close the Ajimal transport truck had been to the entrance of the private driveway; on whether the defendant's truck had actually gone passed the Ajimal truck by 10 to 15 feet before the Ajimal truck had begun to move forward; on whether any right turn signals were visible on either truck, so that objectively, the defendant ought to have known that the Ajimal truck had not been parked but had been intending to turn right into the same private driveway, as well as whether Hardeep Ajimal ought to have been aware that the defendant had been intending to make a right turn into the private driveway, so as to cause Ajimal to sound his truck's horn to warn the defendant that they were both trying to turn right at the same time.

[106] Moreover, in R. v. La at para. 22, Sopinka J. indicated that the deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown's obligation to disclose the material will, typically, be an abuse of process. In addition, he held that an abuse of process is not limited to the conduct of officers of the Crown, which proceeds from an improper motive. Moreover, he noted that other serious departures from the Crown's duty to preserve material, such as an unacceptable degree of negligent conduct, may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure has not been established:

What is the conduct arising from failure to disclose that will amount to an abuse of process? By definition it must include conduct on the part of governmental authorities that violates those fundamental principles that underlie the community's sense of decency and fair play. The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown's obligation to disclose the material will, typically, fall into this category. An abuse of process, however, is not limited to conduct of officers of the Crown which proceeds from an improper motive. See R. v. O'Connor, [1995] 4 S.C.R. 411, at paras. 78-81, per Justice L'Heureux-Dubé for the majority on this point. Accordingly, other serious departures from the Crown's duty to preserve material that is subject to production may also amount to an abuse of process notwithstanding that a deliberate destruction for the purpose of evading disclosure is not established. In some cases an unacceptable degree of negligent conduct may suffice.

[107] Furthermore, in R. v. Dulude, [2004] O.J. No. 3576, at para. 30, the Court of Appeal for Ontario reiterated that a Charter breach will be established only where relevant evidence is lost because of the Crown's unacceptable negligence. On the other hand, the Court also noted that even when relevant evidence has not been disclosed, but then becomes irretrievably lost or destroyed, then the accused cannot claim an automatic breach of her constitutional right to disclosure, nor claim that their right to make full answer and defence under s. 7 of the Charter or that their constitutional right to a fair trial under s. 11(d) had also been automatically violated:

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] 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.

[108] Similarly, the Court of Appeal for Ontario in R. v. Sheng, 2010 ONCA 296, [2010] O.J. No. 1666, at paras. 30 to 35, confirmed that the loss or destruction of relevant evidence that had been once in the Crown's possession or control does not also automatically equate to a breach of the Crown's disclosure obligation. But, where the Crown has failed to meet its disclosure obligation, then whether that s. 7 breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence:

The Crown acknowledges that the lost audiotapes and notes would have been relevant to the accused's defence. In a case that turned on credibility, they likely would have been useful for cross-examining the complainants. Therefore, if they were in the Crown's possession or control at the time of trial, the Crown would have had a duty to produce them under the disclosure standards in R. v. Stinchcombe, [1991] 3 S.C.R. 326.

An accused's right to disclosure of material that meets the Stinchcombe standard is a component of an accused's right to make full answer and defence. In turn, an accused's right to make full answer and defence is a principle of fundamental justice in s. 7 of the Charter. Therefore, a breach of the Crown's duty of disclosure is a breach of an accused's constitutional rights under s. 7.

The Crown's duty to disclose relevant evidence includes the obligation to preserve relevant evidence. However, as Sopinka J. noted in his majority judgment in R. v. La, [1997] 2 S.C.R. 680, "despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost." The loss or destruction of relevant evidence that was once in the Crown's possession or control thus does not automatically equate to a breach of the Crown's disclosure obligation. In La, Sopinka J. sets out the legal framework for analyzing when lost or destroyed evidence gives rise to a breach of s. 7 of the Charter and when it justifies a stay of proceedings.

The starting point is the Crown's obligation to explain why the evidence was lost. That obligation flows from the Crown's duty to preserve relevant evidence. Sopinka J. discusses two classes of cases: cases where the Crown's explanation is unsatisfactory or the Crown gives no explanation at all, and cases where the Crown's explanation is satisfactory.

Where the Crown gives no explanation or where the Crown's explanation shows that the evidence has been lost or destroyed because of the Crown's "unacceptable negligence", then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of the Charter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence.

Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation. Section 7 of the Charter has not been breached. Still, "in extraordinary circumstances" the accused may be entitled to a stay if the accused can show that the lost or destroyed evidence is "so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial."

[109] Also, in R. v. Sheng, 2010 ONCA 296, [2010] O.J. No. 1666, at paras. 42 to 45, the Court of Appeal for Ontario confirmed that to find that the effect of the lost or destroyed evidence on the accused would be so prejudicial that it could only be remedied by a stay would turn on the extent of the prejudice to the accused from the loss of the evidence and the availability of other remedies short of a stay that would repair or address any prejudice:

For these reasons I conclude that the Crown has satisfactorily explained the loss of the audiotapes. Their loss or erasure was not caused by "unacceptable negligence". Accordingly, the Crown did not breach its duty of disclosure under s. 7 of the Charter.

(c) Was the loss of the notes and audiotapes so prejudicial to the respondent that he was entitled to a stay?

… the Crown contends that the trial judge erred in finding that the loss of the notes and the audiotapes materially prejudiced the respondent, and thus justified a stay of proceedings.

A stay is granted rarely. It is a remedy of last resort that must meet the "clearest of cases" standard. It is an exceptional remedy because its effect is to deprive society of an adjudication on the merits.

Was the trial judge's finding that the lost evidence was so prejudicial that it could only be remedied by a stay a reasonable finding? The answer to that question turns on the extent of the prejudice to the respondent from the loss of the evidence, and the availability of other remedies short of a stay to address any prejudice.

[110] Moreover, in R. v. Sheng, 2010 ONCA 296, [2010] O.J. No. 1666 (O.C.A.), at paras. 46 to 47 and 52 to 53, the Court of Appeal noted that a stay of proceedings would be justified if the accused is able to show that the lost evidence has prejudiced the accused in a substantial or material way. In addition, the Court noted in that case that the lost evidence could have assisted the accused in attacking the credibility of the complainants, but that before the trial judge decides a stay is justified the trial judge should also consider the impact of the lost evidence in respect to other evidence that would be available to the defence that could be used to challenge the credibility of the complainants, in assessing the degree of prejudice from the lost evidence:

When evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative. However, the respondent was not entitled to a stay merely because he was deprived of relevant evidence. To justify a stay the respondent had to show that the lost evidence prejudiced him in a substantial or material way. The trial judge concluded that the lost evidence would assist the respondent in a material way:

There is an air of reality to the claim that the lost evidence would assist the accused in a material way. The accused was prejudiced by the loss of the evidence and was prevented from making full answer and defence.

I agree that the lost evidence could have assisted the respondent in attacking the credibility of the complainants. However, I do not agree that the trial judge's conclusion justifies a stay because, in reaching that conclusion, he does not address the impact of the lost evidence in the light of other evidence available to the defence to challenge the credibility of J.H. and T.H. In La, Sopinka J. wrote that the availability of other evidence to attack a complainant's credibility is a critical consideration in assessing the degree of prejudice from lost evidence.

Finally, the complainants themselves were subjected to an extensive and probing cross-examination in which they admitted to numerous inconsistencies and lies to the CAS, to the police and in their disclosure generally. And, as neither J.H. nor T.H. remembered very much about what they said to the CAS and the police during the 1994 investigations, at best the lost evidence from those investigations would have permitted the defence to bring out a few more lies and a few more inconsistencies in the complainants' evidence. Given what the defence had available to it, the lost evidence was not so prejudicial to the respondent's defence that it warranted a stay.

I end this section of my reasons by noting that the lost evidence may have merited a remedy short of a stay. However, the trial judge did not consider at all whether another remedy – for example, the exclusion of evidence – would have redressed any prejudice from the lost evidence. For nor did the trial judge take into account the lost evidence in his assessment of the complainants' credibility and reliability. Instead, in finding their evidence both credible and reliable in his reasons for conviction, the trial judge does not even mention the lost evidence.

[111] Furthermore, in R. v. Betts, [1998] O.J. No. 2227 (Ont. Ct. (Prov. Div.)), at paras. 15 to 19 and 22, Bassel J. held that the loss of the evidence through the gross negligence of a third party, who had been in possession of the video evidence, would be a violation of the duty to disclose, since the police had been responsible for the third party's actions in failing to preserve it, which had resulted from a decision by the police to leave highly relevant evidence in the hands of that third party:

The law is clear that the Crown has an obligation to disclose all relevant information to the defence, and this does not just mean disclosure of that material which the Crown proposes to utilize in the prosecution. At the pre-trial stage, the issue of relevance is whether there is a reasonable possibility that withholding the material would impair the ability of the accused to make full answer and defence. R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 S.C.C.

The Crown would be entitled to withhold information in a situation to protect the identity of an informer or in a situation of privilege, neither of which are relevant considerations in this case.

The Crown's duty to disclose all relevant information in its possession gives rise to an obligation to preserve relevant evidence. When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what has happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence (my italics), the duty to disclose has not been breached. The Crown fails to meet its disclosure obligations where it is unable to satisfy the judge and Section 7 is accordingly breached.

The court, in determining whether the Crown's explanation, if any is offered (my italics), is satisfactory, should analyze the circumstance surrounding the loss of evidence. The main consideration is whether the police or Crown took reasonable steps to preserve the evidence for disclosure. The relevance that the evidence was perceived to have at the time must be considered.

As the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. However, while broad and complete disclosure is the rule, not every failure to disclose will necessarily amount to a constitutional violation. R. v. La (sub nom Vu) (1997), 116 C.C.C (3d) 97 S.C.C.

In this case, the tape has been lost or indeed, erased by re-insertion into the system. There is no suggestion that it was done wilfully or with a view to its intentional erasure, however it is gone. The loss of that tape and resultant failure to produce to the accused either from the Crown or a third party, is a breach of the constitutional right encompassed by Section 7 of the Charter. … On the facts here, I believe that there has been a breach of the accused's rights, and that the loss of this tape is as a result of gross negligence by the York university security, and there has been no plausible or even minimally reasonable explanation by York as to why, after all of these police requests to preserve the tape, that they apparently allow it to go back into the taping cycle. The police should have taken the tape at the outset, but surely, the York security, who, by their very terms of reference of security, and duties as crime prevention support services, and presumably their training, and being told by 2 police officers to hold on to the tape, and knowing that a charge is going to be laid, and being contacted by Dt. Bradshaw, surely it would be patently obvious to York that the tape is important and should be preserved by them for the police. There is no reasonable explanation, in all of the circumstances here as to the erasure and loss of this evidence. The police chose to follow a procedure to leave the tape with York security, and therefore I believe that the gross negligence of York attaches to the police and the Crown, for the purposes of this Application.

[112] Ergo, the Crown's obligation to disclose also creates the obligation to preserve evidence in its possession. If the Crown fails to diligently preserve evidence in its possession, or even in the hands of a third party, then such failure to preserve may lead to finding that an accused's Charter rights have been infringed.

[113] In sum, not every instance of negligence that results in the loss or destruction of relevant evidence, such as the loss or destruction of a video of a motor vehicle collision, would result in a Charter breach. Moreover, the loss of evidence will not result in the breach of duty to disclose, so long as the conduct of the police or the Crown had been reasonable in the circumstances. However, if the evidence is so important that its loss would render a fair trial problematic, then a breach of the Charter may be found.

[114] Accordingly, in assessing the lost or destroyed video evidence in the case at bar in respect to whether the defendant's Charter rights have been infringed, three questions need to be considered. They are:

(1) Is the lost or missing video evidence material and relevant?

(2) Was the prosecution unacceptably negligent in failing to disclose relevant evidence or in failing to produce or preserve the video evidence?

(3) Has the defendant's right to make full answer and defence or to have a fair hearing without the video evidence been irreparably prejudiced by the prosecution's failure to disclose, produce, or preserve all relevant evidence, or has the integrity of the administration of justice been severely undermined by Cst. Coupland's failure to preserve the video evidence?

(2) The Court Has An Obligation To Ensure That Accused Persons Have A Fair Trial

[115] In R. v. Taillefer; R. v. Duguay, 2003 SCC 70, [2003] 3 S.C.R. 307 (S.C.C.), at paras. 64 and 65, Lebel J. confirmed that a trial court has a duty to be vigilant in assuring that accused persons have had a fair trial, and if the regrettable conduct of the prosecution, which covers both the police and Crown counsel, ever results in unfairness then the court should act with decisiveness to reverse such unfairness:

In my view, the respondent is wrong. Notwithstanding the fact that there may have been disagreements during the development of the law relating to the Crown's duty to disclose before the decision in Stinchcombe, a number of appeal courts had acknowledged that the Crown did have a duty to disclose all relevant evidence to the defence, whether favourable to the accused or not. That duty, which was indeed reinvigorated by the adoption of the Charter, had already been recognized at common law as a component of the accused's right to a fair trial and to make full answer and defence.

In particular, in R. v. C. (M.H.), [1991] 1 S.C.R. 763, which was decided a few months before Stinchcombe, this Court had defined the parameters of the duty to disclose evidence that the Crown was under at common law. McLachlin J. (as she then was), writing for the Court, had observed that the Crown's common law duty to disclose to the defence "all material evidence whether favourable to the accused or not" had repeatedly been recognized by this Court (p. 774). In support of her opinion, she cited Lemay v. The King, [1952] 1 S.C.R. 232, Duke v. The Queen, [1972] S.C.R. 917, and Caccamo v. The Queen, [1976] 1 S.C.R. 786. She had stressed the potential importance of a breach of that duty to the overall fairness of a criminal trial (at pp. 774-75):

It is not necessary on the facts of this case to establish the exact ambit of the Crown's duty of disclosure. It is sufficient to note that failure to disclose may constitute grounds for appeal where it results in an unfair trial. As Spence J. observed in his reasons in Caccamo (dissenting on another ground, Laskin C.J. concurring), courts must not hesitate to interfere where conduct of the Crown suggests there was unfairness at trial, at p. 796:

In my view, it is the duty of the court to be vigilant to assure itself that the appellant has had a fair trial and if the regrettable conduct of the prosecution, using that term to cover both the police and Crown counsel, ever results in unfairness then the court should act with decisiveness to reverse such unfairness.

(a) Is the lost videotape evidence material and relevant?

[116] In R. v. Lipovetsky, 2007 ONCJ 484, [2007] O.J. No. 4135 (O.C.J.), at para. 19, Kenkel J. echoed the view that not every instance of negligence that results in the loss of evidence would automatically result in a Charter breach, since a Charter breach would only be established where the lost evidence is shown by the accused to be relevant to the issues at trial:

Even where there is negligence on the part of the Crown, the loss of a videotape does not automatically violate the Charter. A Charter breach is established only where the lost evidence is shown by the applicant to be relevant to the issues at trial. See: R. v. Dulude, [2004] O.J. No. 3576 (C.A.) at para. 30.

[117] Furthermore, in R. v. Betts, [1998] O.J. No. 2227 (Ont. Ct. (Prov. Div.)), at para. 24, Bassel J. recognized in that particular lost or destroyed video evidence case, that the ability to view the events recorded on a videotape would have been of great value and assistance to the Court, since video-recorders record all that come before it accurately and dispassionately:

Having found that there has been a breach of the accused's Section 7 rights, the next question to be addressed is as to what is the appropriate remedy. I agree that the Crown has brought forward a number of witnesses in order to try and heal or remedy the loss of this evidence, and has afforded the accused the right of full cross-examination of these witnesses. Nonetheless, I believe that the ability to have viewed the events in this tape would have been of great value and assistance to the Court. I refer to the words of Cory J., in R. v. Nikolovski, [1996] 3 S.C.R. 1197 at Page 1210, where he outlines the value of videotaped evidence as follows:

"The video camera on the other hand is never subject to stress. Through tumultuous events it continues to record accurately and dispassionately all that comes before it. Although silent, it remains a constant, unbiased witness with instant and total recall of all that it observed. The trier of fact may review the evidence of this silent witness as often as desired. The tape may be stopped and studied at a critical juncture."

[118] In the case at bar, the apparently lost or destroyed evidence had been a video of the collision between the defendant's truck and trailer and the transport truck being driven by Hardeep Ajimal. The video evidence would clearly be material and relevant. First, because Cst. Coupland had decided to charge the defendant with the turn not in safety offence after viewing the video of the collision and observing that the Ajimal truck had been in motion before the defendant's truck and trailer had even commenced to make the right turn into the private driveway. Second, because the video could contain evidence that could support the defendant's mistake of fact defence, which is based on the defendant's testimony that the Ajimal truck had not commenced moving forward until after the defendant's truck and trailer had already gone past the Ajimal truck by 10 to 15 feet, and that the defendant had mistakenly believed that the Ajimal truck had been parked by the curb. And finally, the video evidence could have been used in support of, or to attack, the credibility of the testimony given by either Hardeep Ajimal or the defendant.

(b) Has the prosecution breached their disclosure obligations?

[119] As outlined in R. v. La, the steps for determining whether there has been a Charter breach in respect to the defendant's right to disclosure or to his right to make full answer and defence, requires first deciding whether the lost or destroyed evidence is material and relevant. And, if it is material and relevant, then it has to be determined whether the prosecution has satisfactorily explained why the lost or destroyed evidence was not disclosed, produced, or preserved. At that stage, if the prosecution's explanation is satisfactory, then the prosecution will have fulfilled its disclosure obligation. However, if the prosecution has not provided a satisfactory explanation, then it will not have fulfilled its obligation to disclose, produce, or preserve the video evidence of the collision. And, if the evidence had not been deliberately or intentionally destroyed or lost to frustrate the administration of justice, then the defendant will have the burden to prove on a balance of probabilities that his ability to make full answer and defence or that the integrity of the justice system has been actually prejudiced by the lost or destroyed video evidence. Finally, if the defendant has shown on a balance of probabilities that his ability to make full answer or defence or that the integrity of justice system has been actually prejudiced, then it has to be determined what remedy under s. 24(1) would be appropriate for the Charter violation.

[120] In short, the right to disclosure ensures that the defendant's right to fundamental justice has been through a fair process, so that the ultimate result of this regulatory proceeding would be reliable. Moreover, there are three main stages in applications for a stay of proceedings related to an infringement of the defendant's right to disclosure. They are: (1) whether there has been a breach of disclosure; (2) if so, whether there has been a breach of the defendant's right to make full answer and defence that would impair a fair; and (3) what is the appropriate remedy, if there has been a breach of either.

(c) Has the prosecution explained satisfactorily why the video evidence was not disclosed, produced, or preserved?

[121] As held in R. v. La, at paras. 18 to 21, that when evidence has been lost or destroyed then the prosecution has an obligation to explain that there had not been unacceptable negligence on their part in the evidence being destroyed or lost, which arises out of the duty of the prosecution and the police to preserve the fruits of the investigation. Consequently, if the explanation is satisfactory that the prosecution and the police had not been unacceptably negligent in the destruction or loss of the video evidence, then the prosecution's duty to disclose has not been breached. In addition, in determining whether the explanation for not properly preserving the video evidence of the collision, the circumstances surrounding the loss or destruction of the video evidence has to be analyzed, especially on whether the prosecution or the police had taken reasonable steps in the circumstances to preserve the video evidence for disclosure. In addition, as the relevance of the evidence increases, so does the degree of care that is expected of the police in preserving the evidence in question:

The issue of the Crown's disclosure obligations where evidence has been lost arose during the new trial ordered by this Court in Stinchcombe (No. 1). The police had misplaced a tape recording of an interview with a witness. During the interview, the witness had expressed doubts about the accuracy of her earlier testimony. The officer who interviewed her had died of a brain tumour. However, the Crown disclosed a transcript of the interview. In setting aside the stay of proceedings entered by the trial judge, the Alberta Court of Appeal noted that it is information contained in witness statements that must be disclosed, not the original statement: Stinchcombe (No. 2), supra. This Court agreed, [1995] 1 S.C.R. 754, at para. 2:

The Crown can only produce what is in its possession or control. There is no absolute right to have originals produced. If the Crown has the originals of documents which ought to be produced, it should either produce them or allow them to be inspected. If, however, the originals are not available and if they had been in the Crown's possession, then it should explain their absence. If the explanation is satisfactory, the Crown has discharged its obligation unless the conduct which resulted in the absence or loss of the original is in itself such that it may warrant a remedy under the Canadian Charter of Rights and Freedoms.

A similar principle was expressed in R. v. Chaplin, [1995] 1 S.C.R. 727, at para. 25:

In situations in which the existence of certain information has been identified, then the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged.

This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown's 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. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. 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. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

[122] First of all, there is no evidence that the prosecution or the police had deliberately or intentionally failed to disclose the video evidence of the collision, since Cst. Coupland did provide the defendant with a copy of the video of the collision after they had viewed the video together at the police station on January 29, 2015.

[123] However, even though Cst. Coupland had allowed the defendant to view the video of the collision and had given the defendant a copy of the video of the collision on January 29, 2015, which normally would have fulfilled the prosecution's obligation to disclose the video, the defendant indicates that the video was not accessible or viewable on the format or medium provided to him. As a consequence of not providing an accessible or viewable copy of the video to the defendant, then the prosecution could be found to have not fulfilled its disclosure obligation.

[124] Furthermore, the explanation of why a copy of the video of the collision was not available to the court at trial, was that the video had been removed from the website before Cst. Coupland could download another copy of the video and that Cst. Coupland had given the only copy of the video of the collision to the defendant at the police station after they had viewed it together on January 29, 2015. However, there is no evidence at what point Cst. Coupland had come to know or had realized that the video of the collision had been removed from the internet website where the video had been originally available, which would be a factor in determining if there had been an unacceptable negligence in not preserving the video evidence.

[125] On the other hand, there is no evidence or suggestion that the defendant or the defendant's legal representative had informed or notified the prosecution or Cst. Coupland that the copy of the video that had been given to the defendant by Cst. Coupland was not accessible or viewable in the format or medium provided to the defendant until the day of the trial, so that the prosecution or Cst. Coupland could remediate the problem by producing an accessible and viewable copy or to determine if the video of the collision had been properly downloaded or copied. As such, the copy of the video given to the defendant may, in fact, be still accessible or viewable on police or prosecution equipment. Moreover, this delay or failure to promptly inform the prosecution or Cst. Coupland about the problem with the copy of the video given to the defendant, or return the copy of the video to them so it could be determined if the copy could be accessed or viewed on prosecution or police equipment, would be a factor in determining the appropriate remedy if a Charter violation is found.

[126] However, before Cst. Coupland had given a copy of the video of the collision to the defendant on January 29, 2015, as part of the prosecution's obligation to disclose relevant evidence, why did Cst. Coupland not make two copies of the video of the collision before giving one to the defendant? If she had done so, it would have been a reasonable step to take in preserving the video evidence of the collision.

[127] Therefore, since Cst. Coupland did not take the reasonable step in making two copies of the video of the collision before giving one copy to the defendant, and if the video evidence of the collision is indeed lost or destroyed, then the prosecution would be unacceptably negligent in not preserving the video evidence of the collision from a third-party internet website before the video had been removed from that website. And, because the copy of the video provided to the defendant by Cst. Coupland was not accessible or viewable by the defendant, then the failure by the prosecution to disclose, produce, or preserve the video evidence would have breached the defendant's right to disclosure of relevant evidence.

(d) Has the defendant's ability to make full answer and defence that could impact on having a fair trial been irreparably prejudiced?

[128] Once again, the prosecution's failure to disclose or produce the video evidence of the collision to the defendant or Cst. Coupland's failure to preserve the video evidence, which is a breach of the defendant's right to disclosure, does not necessarily mean that the defendant's right to make full answer and defence or that his right to a fair trial have been irreparably prejudiced. As held in R. v. La, [1997] 2 S.C.R. 680, actual prejudice to the defendant's ability to make full answer and defence that could impair a fair trial must be shown before deciding whether the proceeding should be stayed.

[129] Furthermore, in R. v. Carosella, [1997] 1 S.C.R. 80 (S.C.C.), at para. 27, Sopinka J., in his majority judgment, held that the degree of prejudice suffered by the accused is a concern for the remedy stage, but not for determining whether there had been a Charter breach:

This Court has consistently taken the position that the question of the degree of prejudice suffered by an accused is not a consideration to be addressed in the context of determining whether a substantive Charter right has been breached. The extent to which the Charter violation caused prejudice to the accused falls to be considered only at the remedy stage of a Charter analysis.

[130] Moreover, in R. v. Bradford (2001), 151 C.C.C. (3d) 363, at para. 8, the Court of Appeal for Ontario explained that actual prejudice must be shown and that some prejudice is not enough. Moreover, the Court noted that the issue is whether the missing or lost evidence had so prejudiced the defence that it would deny a fair trial, since the accused would be unable to put forward a defence due to the loss of the evidence, but not where the loss simply makes raising a particular position more difficult:

The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration. For example, in B.(F.C.), supra, the court held that where the complainant's signed statement was lost, but a typed transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v. J.D., a judgment of the Ontario Court of Appeal, delivered May 30, 1996, [1996] O.J. No. 1907, although the complainant's statement was lost, the officer's notes were available and the court held that it was speculative whether there were any inconsistencies between the complainant's statement and the officer's notes.

[131] If the consequences of the lost or destroyed evidence would have so prejudiced the defendant's ability to make full answer and defence that it would impair the defendant's right to a fair trial, then the remedy would have been a stay of proceedings. As such, all the circumstances of the defendant's ability to make full answer and defence will have to be considered in determining whether the defendant's right to a fair trial has been irreparably impaired.

[132] Furthermore, the Charter does not protect the right to make perfect full answer and defence, but the ability to make reasonable full answer and defence. In other words, if there is other evidence that would aid the defendant in attacking the credibility of prosecution witnesses or to support a defence, then the defendant's ability to make full answer and defence that would impair a fair trial may not be infringed by the prosecution's failure to disclose, provide, or preserve certain evidence.

[133] In considering whether there is evidence that could still enable the defendant to make full answer and defence, it is not clear if the video evidence of the collision had been undeniably destroyed or lost. Moreover, there is no evidence or indication that the defendant has destroyed or lost the copy of the video given to him by Cst. Coupland. As such, there is still the possibility that the video evidence of the collision has not been lost or destroyed, since the video of the collision on the copy given to the defendant may still be accessed or viewed on prosecution or police equipment.

[134] On the other hand, the defendant could still make full answer and defence without the video evidence of the collision, as the defendant had the opportunity to view the video of the collision when Cst. Coupland has shown the video to the defendant at the police station. Specifically, the defendant could use what he had observed on the video to cross-examine Hardeep Ajimal. The defendant could also testify about what he had observed on the video in his defence or to use those observations to support his mistake of fact defence that he had honestly and reasonably believed that the truck driven by Hardeep Ajimal had been parked by the curb. In fact, the defendant had testified that the video of the collision had shown that the Ajimal truck had not actually moved until the defendant's truck and trailer had already gone pass the Ajimal truck by 10 to 15 feet, which is evidence that supports his mistake of fact defence about mistakenly believing that the Ajimal truck had been parked before he had actually commenced his right turn into the private driveway.

[135] As such, the unavailablity of the video evidence of the collision did not irreparably impair the defendant's ability to make full answer and defence that would have impacted a fair trial. Therefore, as the loss or destruction of the video evidence of the collision did not impair the defendant's ability to make full answer and defence or his right to a fair trial, then there is no Charter violation.

(e) Was there a measure or remedy that could have cured the potential prejudice from the failure of the prosecution to disclose, produce, or preserve the video evidence on the defendant's ability to make full answer and defence that could impair a fair trial?

[136] In R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1 (S.C.C.), at para. 69, L'Heureux-Dubé J. held that remedies which are less drastic than a stay of proceedings are available under s. 24(1) in situations where the "clearest of cases" threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated:

Remedies less drastic than a stay of proceedings are of course available under s. 24(1) in situations where the "clearest of cases" threshold is not met but where it is proved, on a balance of probabilities, that s. 7 has been violated. In this respect the Charter regime is more flexible than the common law doctrine of abuse of process. However, this is not a reason to retain a separate common law regime. It is important to recognize that the Charter has now put into judges' hands a scalpel instead of an axe -- a tool that may fashion, more carefully than ever, solutions taking into account the sometimes complementary and sometimes opposing concerns of fairness to the individual, societal interests, and the integrity of the judicial system

[137] Furthermore, in R. v. Wickstead (1996), 106 C.C.C. (3d) 385, at paras. 25 to 27, the Court of Appeal for Ontario took the opportunity to summarize the law in respect to the remedy of a judicial stay of proceedings for the non-disclosure of evidence and the appropriate principles to be applied, as it had been pronounced in R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1 (S.C.C.). L'Heureux-Dubé J. had held in R. v. O'Connor that where the accused seeks to establish that the non-disclosure of evidence by the Crown violates s. 7 of the Charter, the accused must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on the accused's ability to make full answer and defence. In addition, L'Heureux-Dubé J. emphasized in R. v. O'Connor that the determination requires a reasonable inquiry into the materiality of the non-disclosed information and where the information is found to be immaterial to the accused's ability to make full answer and defence, then there cannot be possibly a violation of the Charter. Furthermore, L'Heureux-Dubé J. held that the Crown's conduct or impugned actions in respect to the non-disclosure must affect the fairness of the trial in order to find there has been an abuse of process or a violation under s. 7. And once an abuse of process or a violation under s. 7 is made out then a just and appropriate remedy must be found pursuant to s. 24(1). Additionally, L'Heureux-Dubé J. reiterated that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued. Moreover, she noted that a stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted:

The law with respect to the remedy of a judicial stay of proceedings has been dealt with recently by the Supreme Court of Canada in R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1. The appropriate principles to be applied are set forth in the reasons of L'Heureux-Dubé J. At p. 83 S.C.R., p. 43 C.C.C. she said by way of summary:

Where life, liberty or security of the person is engaged in a judicial proceeding, and it is proved on a balance of probabilities that the Crown's failure to make proper disclosure to the defence has impaired the accused's ability to make full answer and defence, a violation of s. 7 will have been made out. In such circumstances, the court must fashion a just and appropriate remedy, pursuant to s. 24(1). Although the remedy for such a violation will typically be a disclosure order and adjournment, there may be some extreme cases where the prejudice to the accused's ability to make full answer and defence or to the integrity of the justice system is irremediable. In those "clearest of cases", a stay of proceedings will be appropriate.

In dealing with the matter of establishing that the non-disclosure by the Crown violates s. 7 of the Canadian Charter of Rights and Freedoms, she said at pp. 464-65 S.C.R., p. 40 C.C.C.:

Where the accused seeks to establish that the non-disclosure by the Crown violates s. 7 of the Charter, he or she must establish that the impugned non-disclosure has, on the balance of probabilities, prejudiced or had an adverse effect on his or her ability to make full answer and defence. It goes without saying that such a determination requires reasonable inquiry into the materiality of the non-disclosed information. Where the information is found to be immaterial to the accused's ability to make full answer and defence, there cannot possibly be a violation of the Charter in this respect. I would note, moreover, that inferences or conclusions about the propriety of the Crown's conduct or intention are not necessarily relevant to whether or not the accused's right to a fair trial is infringed. The focus must be primarily on the effect of the impugned actions on the fairness of the accused's trial. Once a violation is made out, a just and appropriate remedy must be found.

(Emphasis in original)

She said further at pp. 465-66 S.C.R., pp. 41-42 C.C.C.:

There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy through reasonable means the prejudice to the accused's right to make full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary. Although I will return to this matter in my discussion on the disclosure of records held by third parties, we must recall that, under certain circumstances, the defence will be unable to lay the foundation for disclosure of a certain item until the trial has actually begun and witnesses have already been called. In those instances, it may be necessary to take measures such as permitting the defence to recall certain witnesses for examination or cross-examination, adjournments to permit the defence to subpoena additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted.

When choosing a remedy for a non-disclosure that has violated s. 7, the court should also consider whether the Crown's breach of its disclosure obligations has also violated fundamental principles underlying the community's sense of decency and fair play and thereby caused prejudice to the integrity of the judicial system. If so, it should be asked whether this prejudice is remediable. Consideration must be given to the seriousness of the violation and to the societal and individual interests in obtaining a determination of guilt or innocence. ...

(Emphasis in original)

At p. 468 S.C.R., p. 43 C.C.C. she stated the following reminder:

It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.

[138] Moreover, in R. v. Dulude, [2004] O.J. No. 3576, at paras. 36 to 39, the Court Of Appeal For Ontario reiterated that a judicial stay of proceedings for a breach of s. 7 of the Charter is an extraordinary remedy for the clearest of cases and that a remedy short of a stay of proceedings should be considered before granting a stay, if a lesser remedy would alleviate any prejudice that may arise:

… 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), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99; R. v. O'Connor, [1995] 4 S.C.R. 411 at para. 68; and R. v. La, supra, at para. 23.

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.

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.

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.

[139] Furthermore, in R. v. Bero, (2000), 151 C.C.C. (3d) 545, at para. 48, Doherty J.A. noted that the degree of prejudice caused to an accused by a failure to preserve relevant evidence and the availability of other means short of a stay to alleviate that prejudice are the primary considerations in deciding whether a stay is warranted by virtue of the prejudice caused to an accused's ability to make full answer and defence:

The degree of prejudice caused to an accused by a failure to preserve relevant evidence and the availability of other means short of a stay to alleviate that prejudice are the primary considerations in deciding whether a stay is warranted by virtue of the prejudice caused to an accused's ability to make full answer and defence: R. v. La, supra, at pp. 109-110.

[140] In addition, examples of remedies that are short of a stay which have been provided in circumstances where there has been late disclosure or lost disclosure, include ordering the Crown or the prosecution to provide full disclosure with an adjournment for preparation and the right to re-examine, or re-cross-examine any witnesses that had already heard; the exclusion of evidence when there has been late disclosure; or declaring a mistrial. See R. v. O'Connor, [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1 (S.C.C.), at para. 77:

There may, however, be exceptional situations where, given the advanced state of the proceedings, it is simply not possible to remedy through reasonable means the prejudice to the accused's right to make full answer and defence. In such cases, the drastic remedy of a stay of proceedings may be necessary. Although I will return to this matter in my discussion on the disclosure of records held by third parties, we must recall that, under certain circumstances, the defence will be unable to lay the foundation for disclosure of a certain item until the trial has actually begun and witnesses have already been called. In those instances, it may be necessary to take measures such as permitting the defence to recall certain witnesses for examination or cross-examination, adjournments to permit the defence to subpoena additional witnesses or even, in extreme circumstances, declaring a mistrial. A stay of proceedings is a last resort, to be taken when all other acceptable avenues of protecting the accused's right to full answer and defence are exhausted.

[141] Also, in R. v. Carosella (1997), 112 C.C.C. (3d) 289 (S.C.C.), at paras. 55 and 56, Sopinka J., writing for the majority, held that either of the following two factors which would justify a stay of proceedings being granted are: (1) that there is no alternative remedy that would cure the prejudice to the ability to make full answer and defence or (2) that irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued:

An additional important factor is the absence of any alternative remedy that would cure the prejudice to the ability of the accused to make full answer and defence. No alternative remedy was suggested by the Court of Appeal. This is one of the two factors mentioned by L'Heureux-Dubé J. in the portion of her reasons to which I have referred. The other factor is irreparable prejudice to the integrity of the judicial system if the prosecution were continued.

These two factors are alternatives. The presence of either one justifies the exercise of discretion in favour of a stay. The presence of the first factor cannot be denied. With respect to the second, in my opinion, the complete absence of any remedy to redress or mitigate the consequences of a deliberate destruction of material in order to deprive the court and the accused of relevant evidence would damage the image of the administration of justice…

[142] In considering all of the circumstances, including that the defendant did not apprise the prosecution immediately after being given a copy of the video of the collision that the video was not accessible or viewable, so that the prosecution could remedy the problem; and that the defendant had been able to view what had been on the video and had been able to use what had been observed on the video to cross-examine Hardeep Ajimal and to also testify as to what had been observed on the video, especially that the Ajimal transport truck had not commenced moving until after the defendant's truck had gone passed the Ajimal truck by 10 to 15 feet, then the defendant's right to make full defence and answer that would have impact a fair trial had not been impaired by the loss or destruction of the video evidence of the collision.

[143] Furthermore, even if there had been some prejudice to the defendant's ability to make full answer and defence that could have impacted a fair trial due to the lost or destroyed video evidence, there was still a measure that could have been utilized to cure or remedy that prejudice. That measure would have involved ordering the defendant to return the copy of the video of the collsion to the prosecution, so that the prosecution could determine if the video of the collision could be accessed or viewed on prosecution and police equipment. And, if the video of the collision is subsequently determined by the prosecution to be accessible or viewable on prosecution or police equipment, then the prosecution would also be required to provide another copy of the video of the collision to the defendant in an accessible or viewable format or medium. In addition, an adjournment would be also granted to allow sufficient time for the prosecution to determine if the copy of the video of the collision in the possession of the defendant is accessible or viewable on prosecution or police equipment and to also provide the defendant with another copy of the video and sufficient time for the defendant prepare a defence with the video of the collision.

7. DISPOSITION

[144] Consequently, based on the evidence and the defendant being able to prove the mistake of fact defence on a balance of probalities, the defendant, Wai Lam, is not guilty of committing the offence of "turn not in safety", contrary to s. 142(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. As such, an acquittal will be entered for Wai Lam.

Dated at the City of Brampton on July 27, 2015.

QUON J.P.

Ontario Court of Justice