Court File and Parties

Court File No.: [Not specified]

Date: March 24, 2016

Location: London, Ontario

Ontario Court of Justice

Between:

Her Majesty the Queen Respondent

-and-

Jose Lima Applicant

Reasons for Decision on Charter Application

Counsel:

• G. Snow for Jose Lima
• B. Eberhard for Federal Crown

Before: George J.

Decision

[1] Introduction

After a trial, I found Jose Lima ("Applicant") guilty of possessing methamphetamine, hydromorphone and cannabis marijuana. At the time of possession, he was an inmate at the Elgin Middlesex Detention Center ("EMDC"). The central issue was the import of what I'll call missing evidence – video recordings of common areas within EMDC.

[2] Initial Events and Cross-Motion

On December 24th, 2014, the Applicant was transported from the London Courthouse to EMDC. Upon arrival he was processed, searched, and led to his range, along with other inmates. At some point he requested blankets and a piece of fruit. After retrieving a blanket bundle from a room that was stocked by inmate laundry workers, a corrections officer handed the bundle to the Applicant.

The drugs were located in this blanket bundle during a second search at the entrance to the Applicant's range.

[3] Video Evidence and Recording Issues

The evidence established that there was a video recording of the Applicant's attendance, admittance, and processing once at the jail. However, the only footage available at trial was of the range entrance. Everything preceding that was recorded over by the time the police sought its production.

The Applicant did not testify, which is his right, asserting after the completion of evidence that the missing video should at least raise a doubt, because the Crown hadn't proved he knew the drugs were in the bundle. He suggested it was equally possible another inmate slipped them into the bundle as they were walking towards their cell, or that the drugs were already there, having been placed there by one of the inmates who worked in the laundry room.

He argued there were competing, equally reasonable inferences that could be drawn from the evidence; and that because at least one of them exculpated him, he must be given the benefit of the doubt.

[4] Crown's Burden and Trial Findings

Essential to this argument is the notion that the defence need not prove or disprove anything, with the Crown bearing the burden of proving every element of each offence beyond a reasonable doubt, including knowledge, consent and control, when prosecuting a possession charge.

I did give the Applicant the benefit of the doubt, where I could, specifically holding out the possibility the drugs were either in the bundle before it was retrieved, or that they were placed there by another inmate after retrieval. But that, in some way, and at some point he became aware of the drugs, thereby gaining knowledge, and assuming control.

I found this to be the case after close inspection of the video footage that was retrievable, which captured the bundle search. I made a finding that, based on his demeanour, comportment, and conduct, at the point the search was initiated and as it unfolded, the Applicant knew the drugs were there as he was actively attempting to conceal them. The defence urged me not to make this finding, but I had little choice.

[5] Charter Application

Notwithstanding my trial findings, the Applicant now argues that a judicial stay should be granted, as his section 7 charter rights were violated.

Section 7 of the Canadian Charter of Rights and Freedoms provides that:

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.

In his materials, which in fairness were filed in advance of the trial and before evidence was taken, the Applicant alleges bad faith on the part of the police. He no longer takes this position.

[6] Factual Timeline

Before continuing, it would be prudent for me to elaborate on the facts and detail the timeline. As of the offence date of December 24, 2014, the Applicant was in custody on other matters (alleged to have occurred on August 21, 2014). The search yielding the drugs occurred after his transport from the court on those other charges.

Corrections personnel notified the London Police Service of their discovery on the 24th.

On January 6, 2015, London Police Constable Steven Linner attended the jail, took statements, conducted NIK tests on the seized substances, and retained them for further analysis. No charges were laid at that time.

The Applicant thereafter remained in custody on his outstanding matters. On June 1, 2015, some five months later, while at court to stand trial on the August charges, he was finally arrested and formally charged with the matters before me.

From December 24, 2014 until June 1, 2015 the Applicant was in custody at EMDC. He was not housed at any other location.

On June 5th, after one day of evidence, the Crown abandoned the August 21st proceedings as against the Applicant. On that same date, after a contested hearing, he was granted bail. While I do not know the reason for his re-incarceration, the Applicant ended up back in custody prior to this trial, where he remains.

[7] Gating Allegation

The initial defence position was that this was a deliberate attempt to delay the charges so as to extend the Applicant's time in custody. It was alleged the Police engaged in the practice of 'gating'.

London Police Constable Steven Linner testified. He confirmed receiving a complaint from EMDC officials, attending there on January 6, 2015. He spoke of his interaction with corrections officers, and described his role in the investigation. He seized the drugs and submitted them to Health Canada for analysis. He was the officer who decided when to lay the Information and charge the Applicant.

He had had no prior dealings with the Applicant and his dispatch to EMDC that day was a random assignment. He confirmed in cross examination that he had grounds to arrest the Applicant on January 6th, but chose not to.

He did promptly submit the warrant application, indicating beyond that there was no urgency in arresting him as he was already in custody. At some point, the officer learns the Applicant has a court appearance on his other matters on June 1, 2015. His position was essentially, the Applicant wasn't going anywhere and I knew where he was. Charging him could wait.

The officer testified to having no familiarity with the term 'gating'. Counsel seemed to agree that 'gating' is the police practice of arresting an inmate upon release on other charges, so as to send them back to, or keep them in jail.

[8] Video Evidence Destruction

While gating, generally speaking, is frowned upon and thought to be inappropriate absent some good reason for a delay, it was particularly ill-advised here. As mentioned, while trial evidence included surveillance video of the second search, at one time there existed surveillance video which captured the entirety of the Applicant's interactions with staff and other inmates, from the point he exited the transport vehicle and entered the institution until this search, with one exception (the first search at admittance).

Constable Linner was actually advised of the existence of the video at his initial attendance at EMDC. He testified that when he, on the 6th, asked to view the footage he was told he would not be able to that day. Apparently some paper work needed to be completed beforehand. In any event, clearly some follow up, by someone, was required in order to view and preserve most of the recording.

As it turned out, while the officer was generally aware that there would have been a destruction policy, he didn't realize EMDC's policy was that after 60 days the footage would be erased, or otherwise deleted.

No inquiry was made in the five month intervening period (January 6 – June 1, 2015), and therefore the evidence was lost.

The officer testified that he did not flag himself to follow up on this. He did not instruct anyone else in his office to do so. The time simply passed, without any further consideration.

[9] Police Negligence and Evidence Preservation

This evidence was relevant. It should have been preserved. A policy should have been in place which would have ensured its preservation, especially in circumstances like this, where charges are laid. Be that as it may, in these circumstances and despite deficiencies within Corrections, the police should have laid the charge at the point they had the grounds to do so, absent some exceptional reason not to. This would likely have avoided the problem. Yet still, even with a pre-charge delay, the police should have been prudent and responsible in following up on the video evidence.

Despite my ultimate trial ruling which, to state the obvious, would have been unknown to the defence (and everyone else) until I rendered it, this was crucial evidence. The police ought to have taken possession of the recording and provided it to the Crown, thereby making it disclosable. This would have had a bearing on trial tactics, for instance whether or not the accused would testify, and would surely have impacted resolution discussions.

Only in hindsight can we look to my trial findings, which when it comes to sentence, necessarily requires that I view the evidence in the best possible light for the Applicant. What I mean by this is, there is a distinction between actively concealing drugs prior to entering a facility, with a view to smuggling them in as part of a pre-planned and deliberate operation, and simply, as a matter of opportunity, coming into possession of them once inside. Indeed, the evidence established that when the Applicant was searched upon his admittance, no contraband was found. There was conflicting evidence as to whether he was subject to a cavity search or just a strip search, but in any case, it was an intrusive one, and nothing was located.

[10] Crown's Position and Defence Arguments

The Crown's position is that the time taken for the investigation, laying of the Information, and arrest of the Applicant was reasonable in the circumstances.

The Applicant contends there was an abuse of process, found in the unreasonable pre-charge delay, which prejudiced the Applicant by having him, at least potentially, remaining in custody beyond what was necessary, but more importantly, in that it led to the destruction of evidence.

He conceded after trial, that it would not be open for me to conclude the investigating officer acted deliberately. Rather that, while he respects my trial ruling on knowledge and control, the court cannot be seen to condone the haphazard and negligent approach the police took towards this investigation.

It struck me that the Crown's focus was not so much on the efficacy of the police decision to wait in excess of five months to lay the charge, but rather on whether a stay, as an extreme remedy, is the appropriate outcome. Put another way, is it the clearest of cases? It also argued that, given my finding that the missing evidence had no bearing on the Applicant's guilt or innocence, that this necessarily meant there was no actual prejudice. The Crown did not concede a breach, but this is where its focus lied.

[11] Legal Framework for Stay of Proceedings

The power to stay can only be exercised in the "clearest of cases". An abuse of process is alleged, which is a residual category within the broader protection of life, liberty and security of the person. In assessing whether this is one of the "clearest of cases" I must determine the prejudice, if any, occasioned the Applicant.

The analysis requires that I address two separate issues. First, have the Applicant's charter rights been violated? And second, if they were, is a stay the appropriate remedy? Should I determine there is a breach, and if this is not one of the "clearest of cases", another remedial option would be a sentence reduction.

[12] Prejudice Analysis

As matters unfolded and over the fullness of time, we have learned, given my trial findings, that the prejudice was actually quite limited; at least on the narrow question of guilt or innocence. However, prejudice is to be considered as a broader concept. For instance, I earlier mentioned how the absence of that evidence had to have impacted defence trial decisions, and tactics. It must have impacted the decision whether or not to call a defence, and it most certainly would have impacted upon resolution discussions.

Unlike some of the cases cited by counsel, where the Crown was able to describe and sufficiently explain pre-charge delays, here there is no such explanation. This case, more than anything, reflects a casual, cavalier approach to the investigation, warrant application, and charging process. Pre-charge delays are not, as a matter of course, inappropriate. But here, while not deliberate, given the circumstances and ultimate impact, the police conduct cannot be tolerated.

[13] Comparison to R. v. Ferris

To illustrate this, I reference the Ferris decision [R. v. Ferris 2013 BCCA 30], where the pre-charge delay was found to be reasonable. In that respect, the court wrote:

After reviewing the evidence, the trial judge discussed the legal principles applicable to abuse of process both at common law and under the Canadian Charter of Rights and Freedoms. In the course of that review he referred to the fact that in British Columbia, unlike in some other Canadian jurisdictions, the Crown must approve charges before they can be laid by the police. He noted that there was no evidence before him to suggest that the charge-approval process followed with respect to Mr. Ferris's file was other than routine, or that anything done by the police or the Crown had been "unnecessary or unwarranted". After stating that he "would have found such evidence helpful", the judge continued:

Where the conduct of certainly the Crown and I expect the RCMP is called into question as in this case, evidence as to whether alternative courses of action can be and are regularly or ordinarily followed in B.C. courts or in the process leading up to trials could give a yardstick of sorts against which to consider the conduct in issue…..

…..All in all, I do not find that there was any unreasonable delay in the preparation of this Report to Crown Counsel including the wait from early August to early October 2009 when White was awaiting two reports and no doubt performing other police duties on other cases.

Our case is distinguishable from Ferris. In Ferris you have a judicial conclusion that a pre-charge delay is sufficiently explained, and reasonable, because an established pre-charge approval process was followed. In the case before me, there is no formal, established process being followed. It was sheer negligence; which in turn led to the destruction of evidence. One might say we are talking about two different things – the stand alone decision to wait and charge someone who is in custody on other matters, and the lack of timely investigative follow-up respecting evidence. And while these are indeed two different issues, there is an intersection here, because it is both the charge-timing decision and lackadaisical investigation, which leads to the loss of evidence.

[14] Guilt Finding and Condemnation of Police Conduct

The fact I made a finding of guilt doesn't detract from this, although it is relevant to the question of prejudice, and to the nature of a remedy.

That said, the court cannot be seen to condone this kind of investigative approach. It would run contrary to the spirit and intent behind due process considerations. It runs the risk of endorsing police conduct which led to evidence loss; which has delayed the commencement of court processing; and which has eliminated early trial prospects. How hard would it have been to, immediately after the officer's attendance in January, lay the charge, complete the witness statements, and provide to the Crown. It is not unreasonable to suggest this matter could have been completed, or at least set down for trial, well in advance of the Applicant's June 1st court date.

[15] The "Clearest of Cases" Threshold

Counsel filed the Supreme Court decision in [O'Connor (R. v. O'Connor, 1995 CarswellBC 1098)], where the court held that, even when Crown actions are high-handed and reprehensible, that doesn't necessarily amount to being one of the "clearest of cases" meriting a stay. The threshold is that high.

To do as the Applicant suggests, requires not just a determination that state conduct impaired his ability to make full answer and defence, I would also have to conclude there is no other way to remedy the damage done.

Was I to find the pre-charge delay to be intentional and deliberate, with a view to lose evidence, or designed to thwart the Applicant's ability to mount a defence, I would have no choice but to grant a stay. This would not just be high-handed and reprehensible, it would cry out for the court's ultimate condemnation. There would be no other way to reflect the seriousness of that conduct.

But this is not the case. We have, at least inadvertence, but more likely negligence. And it is no excuse to say the approach the investigating officer took here is one that other officers would have taken, or that it is an accepted practice within the department. If that were so, it would simply be indicative of a wider spread systemic problem, which wouldn't change my task relative to this application.

[16] Disclosure Obligations and R. v. La, Vu

I appreciate the defence argument, which is the disclosure issue can be viewed separate and distinct from the pre-charge delay. That is to say, as the Supreme Court holds in [R. v. La, Vu, [1997] 2 S.C.R. 680], that:

…..the Crowns 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 happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. The Crown fails to meet its disclosure obligations where it is unable to satisfy the judge and section 7 of the Charter is accordingly breached. Such a failure may also suggest that an abuse of process has occurred. An accused need not establish abuse of process for the Crown to have failed to meet its section 7 obligation to disclose.

As I have already made clear, in considering the circumstances surrounding the loss of the evidence (which is inextricably linked to the decision to not charge in a timely way), and given there were no steps taken to preserve the evidence, the Crown has not satisfied me on the question raised in La, Vu.

Lost evidence, absent a satisfactory explanation, as well as the arbitrary, irrational decision to not charge the offences for five months, both amount to section 7 Charter violations.

[17] Remedy Analysis and R. v. Carosella

As to remedy, the defence relies on the court's comments in [R. v. Carosella, [1997] 1 S.C.R. 80]. This case requires close scrutiny as it is the authority most on point. The court addresses whether or not missing disclosure amounts to a section 7 breach, as well as the question of remedy.

In Carosella, the complainant went to a sexual assault crisis center for advice on how to proceed with historical charges. This centre was government funded, and operated closely with other justice participants (including the police, and crown). A worker at that agency interviewed the complainant taking notes in the process. At the time of the interview the worker disclosed to the complainant that her notes could be subpoenaed to court.

The defence sought production of the center's file, and the court so ordered. The Crown and the agency consented. However, the workers notes were missing. They had been shredded, pursuant to agency policy, before being served with the production request. The worker had no recollection of the contents of the destroyed notes.

At trial, the court ordered a stay, determining it would be unfair to permit the prosecution to proceed. The Court of Appeal set this decision aside. The Supreme Court allowed the appeal, restoring the stay.

As to the existence of a breach, Carosella is determinative, and binding on me. It confirms, on our facts, that there is no option but to find a violation. Carosella makes it clear that the degree of prejudice is to be addressed only at the remedy stage, and is not at all relevant to the existence of a breach. The nature of the lost disclosure, and how it came to be lost, is very similar when you compare Carosella to our fact-set. The conduct of the Applicant's defence was prejudiced.

[18] Distinctions from Carosella

When you get to the next stage however, and when you assess the degree of prejudice, there are significant distinctions with Carosella.

The Stinchcombe decision sets out the test to be applied on a remedy, upon a finding the accused' ability to make full answer and defence has been impaired; [R. v. Stinchcombe (1994), 1994 ABCA 113, 149 A.R. 167 (C.A.)]. The court writes that:

Before the remedy such as a judicial stay of proceedings can be granted, the accused must establish on a balance of probabilities that the failure to produce or disclose what he seeks has impaired his right to make a full answer and defence or was so oppressive as to amount to an abuse of process.

Back to the distinctions. In Carosella, the court said this about the missing disclosure:

….the notes taken by the Centre worker represented the first detailed account of the alleged incidents. The notes constituted the only written record of the alleged incidents which were not created as a result of an investigation. The only other statements by the complainant were to the police and at the preliminary inquiry. The social worker ….. had no recollection whatever of what was said to her. As for the complainant, even if she could recall she would not likely admit that what was said was inconsistent with her present testimony. As a result, any possibility of contradiction of the complainant by reference to her previous account was destroyed.

This properly characterized the nature of the missing evidence in that case. It was gone. There was no substitute, highlighting the absence of viable alternative remedies. That missing disclosure went to the heart of the matter. Guilt or innocence potentially, but for certain credibility determinations, were forever hampered. The court had no choice but to grant a stay.

[19] Application to Present Facts

In our instance, we had two corrections officer give detailed evidence about the process of admittance and discharge at EMDC. They confirmed, which was helpful to the Applicant, that drugs were not found on him, as far as they knew when he was at court; upon his return to the jail; and even after an extensive and invasive search of his person. That's as good as it can possibly get for the defence. The missing disclosure wasn't going to impair or improve that narrative. In fact, I accepted it. He was searched initially and drugs weren't found. This is worlds apart from the Carosella scenario.

To the missing disclosure itself, and the other possible inferences the defence advanced, I accepted their position. The worst possible inference would be the Applicant somehow retrieved the drugs from a cavity that wasn't discovered in the initial search. While I can't definitively find this as a fact, it most certainly could be true. The point is the disclosure wasn't going to assist in answering that question, as if true, he would had to have retrieved them immediately before or after the first search, which was not recorded.

The best possible inference would be that the Applicant is simply the unluckiest, most unfortunate person on this planet, who just happened to receive the one bundle, amongst many, which had drugs inside of it.

Another inference could be that one of the inmates who was being transported with him, slipped drugs into the bundle as they walked, unbeknownst to the Applicant.

I determined, and found as a fact, that despite that, and taking all of this at its highest from a defence perspective, the Applicant still, somehow and someway gained knowledge of the drugs, thereafter maintaining control of them, going so far as to attempt to conceal them as the corrections officer at the range entrance searched him. I saw that part of the video, and made that specific finding of fact.

[20] Conclusion on Remedy

In the result, while Carosella and Stinchcombe make it clear the missing disclosure and non-production, standing on its own, amounts to a Charter violation, the severity of the breach and degree of prejudice falls far below what would be necessary to sustain the most extreme remedy.

I find that, while there was a violation, and while it's true the court should not condone the investigative approach the police took in this case, there is an available remedy other than a stay of proceedings. I will, after hearing submissions from counsel, and upon determining a fit and proper sentence, apply a significant reduction in quantum to reflect the seriousness of this breach.

The application is, in part, granted. I find that the Applicant's section 7 Charter rights were violated. However, the request for a stay is denied.

Date: March 24, 2016

Signed: _________________

Justice Jonathon C. George