DATE: February 21, 2023 COURT FILE No: 22-37200243-01/02
O N T A R I O C O U R T OF J U S T I C E
B E T W E E N :
HIS MAJESTY THE KING
-AND-
TYLER MOORE and RHONDA MOORE
Before Justice M. G. March
Charter Application heard on November 17, 21 and 25, 2022 Reasons for Judgment released on February 21, 2023
Counsel: Ms. Mariah Calamai and Mr. Timothy McCann...………….Counsel for the Federal Crown Mr. Gavin Johnston………………………………...Counsel for the Accused, Tyler Moore Mr. James Foord……………………………………Counsel for the Accused, Rhonda Moore
March, M.G., J. :
Introduction
[1] The accused, Tyler Moore (“Mr. Moore) and Rhonda Moore (“Ms. Moore”), stand charged that on February 8, 2022, they possessed:
a) cocaine for the purpose of trafficking contrary to section 5(2) of the Controlled Drugs and Substances Act (the “CDSA”),
b) fentanyl and methamphetamine contrary to section 4(1) of the CDSA, and
c) proceeds, namely Canadian currency, knowing they were obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Criminal Code of Canada (“the Code”).
[2] Mr. and Ms. Moore further stand charged that on March 9, 2022, they possessed:
a) cocaine for the purpose of trafficking contrary to section 5(2) of the CDSA,
b) methamphetamine for the purpose of trafficking contrary to section 5(2) of the CDSA,
c) fentanyl for the purpose of trafficking contrary to section 5(2) of the CDSA,
d) proceeds, namely Canadian currency, knowing they were obtained by the commission in Canada of an offence punishable by indictment contrary to section 354(1)(a) of the Code, and
e) cannabis for the purpose of selling it contrary to section 10(2) of the Cannabis Act (“CA”).
[3] Crown counsel and both defence counsel agreed at the outset of the trial of Mr. and Ms. Moore that an Application alleging infringements of the Moores’ sections 7 and 11(d) rights under the Canadian Charter of Rights and Freedoms (the “Charter”) could be heard in a discrete voir dire at the outset of their trial.
[4] In substance, both defence counsel argued that the Moores’ rights protected under sections 7 and 11(d) of the Charter were violated due to an unacceptable loss of crucial evidence, namely the surveillance footage from a pole camera installed for surveillances purposes near their residence located at 159 Ross St., Renfrew, ON.
[5] As for remedy, Mr. and Ms. Moore seek through their counsel:
a) a stay of proceedings against them, or alternatively,
b) an excision of all paragraphs making reference to covert surveillance video contained in Informations to Obtain (“ITOs”) sworn on February 7 and March 9, 2022 by Det. Cst Yarmel (“Yarmel”) of the Renfrew detachment of the Ontario Provincial Police (“Renfrew OPP”) seeking warrants to search the Moores’ residence.
The Relevant Evidence
Det. Cst. St. Cyr
[6] When he testified on November 17, 2022, Det. Cst. St. Cyr (“St. Cyr”) of the Renfrew OPP recounted that in December 2021, he was working with Yarmel on an investigation involving the trafficking of street drugs in Renfrew.
[7] To conduct surveillance upon a residence shared by Ms. and Mr. Moore, mother and son, at 159 Ross St., Renfrew, police utilized a pole camera.
[8] St. Cyr obtained the camera upon request from the OPP Technical Service Branch (“OPP TSB”). St. Cyr pointed out that on two prior occasions he had made such a request, but it was denied. On this third occasion, it was granted.
[9] The camera was mounted on a hydro pole on December 9, 2021. It was pointed at the Moores’ house. In St. Cyr’s opinion, it captures what was observable by the general public. Its range of view covered approximately half the driveway adjacent to the house at the extreme left, and to the extreme right, it recorded what was occurring in front of the residence.
[10] The camera had no zoom capabilities. However, fixed images (i.e. snapshots) could be generated by the real-time recording.
[11] Using a software program installed on a laptop at the Renfrew OPP detachment, St. Cyr was able to access what the pole camera recorded at the front and side of the Moores’ home at any given time or date from the point of its activation.
[12] St. Cyr emphasized that he did not have any formal training on the use of the program. Nor did he play any role in the installation of the camera on the hydro pole.
[13] St. Cyr’s role was to review what the camera recorded, and to make notes of any “footage of significance”. St. Cyr recalled that the camera had a motion sensor function. In essence, he considered it his task to watch and chronicle what was relevant. He categorized his observations by date and time.
[14] St. Cyr submitted his work to his senior officer, Yarmel, in Will Says, or in other words, written accounts of what he (St. Cyr) was able to observe from his review of the video footage. At one point, Yarmel took over from St. Cyr the task of monitoring the camera’s recordings.
[15] St. Cyr confirmed that he read the ITOs used to obtained search warrants for the Moores’ residence. He was aware that a snapshot was put into one of them. A photo was cropped from the recording made by the pole camera at a particular instant. He had a specific recollection of which photo was used. He reiterated that it captured what a person on the street could see.
[16] St. Cyr did not remember when the pole camera was taken down.
[17] Prior to testifying, St. Cyr did review his Will Says. He did not notice any inconsistencies between what he observed from the pole camera recordings and what he chronicled in his Will Says.
[18] Under cross-examination, St. Cyr acknowledged his duty as a sworn police officer to preserve evidence. He appreciated that one of the reasons for doing so was to allow others to see the fruits of his investigation. He understood that an accused’s ability to do so was an important aspect of his or her ability to make full answer and defence.
[19] St. Cyr was aware that the recordings made by the pole camera of the Moores’ home had been deleted. The officer did not know when this occurred.
[20] St. Cyr conceded as well that he had no knowledge of the pole camera’s data collection process. Specifically, he did not know if the camera’s pre-existing memory storage had to be deleted before filming of the Moores’ residence ever began.
[21] The officer acknowledged that the pole camera began recording on December 9, 2021 on a “24/7” basis, but he did not know when it stopped filming. He was aware, of course, that a search warrant was executed at the Moores’ residence on February 8, 2022. However, the camera continued to film the comings and goings at the front and side of their house up until the second search warrant was executed on March 9, 2022.
[22] St. Cyr estimated that he looked at about 10 days of video footage from the pole camera in his office at the police detachment. December 23, 2021 was the last day for which he chronicled any of his observations. He added, of course, he did not review the entire contents of what was captured for each day. There was quite a gap between when St. Cyr ended his role for monitoring video surveillance of the residence and handed that task over to Yarmel on January 19, 2022.
[23] St. Cyr agreed that he was being selective in what days he chose to look at.
[24] On December 17, 2021, St. Cyr became aware of a malfunction with the pole camera. No data had been recorded for a period of time. He did not know the cause, nor did he follow up on what had occurred.
[25] St. Cyr did not direct anyone to stop the pole camera’s recordings at the conclusion of the police investigation of the Moores. Nor did he have any knowledge of how the entire period of surveillance of their residence came to be deleted.
[26] The officer did not receive any training from anyone on the functioning of the pole camera. He did not know if there was a manual to assist in understanding its operation. He did not ask for one.
[27] St. Cyr did not know if the memory storage of the pole camera was blank when it was made available to his police team for its use. He was aware that he could not access any dates for footage prior to December 9, 2021.
[28] The officer recorded his observations by typing up what he witnessed while reviewing the pole camera surveillance. If he did not believe what he saw was relevant, he would not make note of it.
[29] St. Cyr did not attempt to save the video footage the pole camera was recording on a hard drive or a CD, notwithstanding his awareness of its malfunction on December 17, 2021.
[30] According to the officer, the pole camera had no pan or zoom functions, nor night vision. He did not know at what height the camera was mounted on the hydro pole. He conceded it was likely higher than the vantage point of a person walking down Ross St. in Renfrew, where the Moores’ residence was located.
[31] Under re-examination, St. Cyr acknowledged that he was told, after having consulted with the OPP TSB, that there was a mechanism for saving the data recorded by the pole camera.
[32] However, he did not know if his colleague, Yarmel, was made aware of that fact.
Det. Cst. Yarmel:
[33] At the time of giving his evidence on November 21, 2022, Yarmel had 16 years of policing experience with the OPP, and roughly the same number of years in with the Hamilton Police Service prior thereto.
[34] In February and March, 2022, Yarmel had been assigned to the Street Crime Unit of the Renfrew OPP. Part of his duties included investigating suspected drug trafficking by the Moores.
[35] Ultimately, he was the affiant for both ITOs relating to the search warrants executed on February 8 and March 9, 2022 at their residence. Yarmel relied upon pole camera footage in preparing the ITOs.
[36] Yarmel recounted that in December 2021, his colleague, St. Cyr, informed him that the police team had been offered a pole surveillance camera from the OPP TSB for the Moores’ home. St. Cyr showed Yarmel how to use the software to review what was being captured. To Yarmel’s knowledge, only St. Cyr and he had access to the passcode which allowed for watching the relevant footage. Both officers performed this task in their respective offices at the Renfrew OPP detachment.
[37] Yarmel, like St. Cyr, knew that the pole camera was motion sensitive. Yarmel was also aware that he could fast forward or rewind to points of interest of what was recorded. However, it was not something that he had the time to do every day.
[38] Yarmel could not recall the date upon which he took over sole responsibility for reviewing the data on the camera. He ventured that it could possibly have been the last date upon which St. Cyr prepared a Will Say.
[39] Generally, Yarmel testified, he took note of the traffic going in and out of the Moores’ residence by attempting to identify the people in the video, visiting vehicles and their licence plates. The officer was essentially looking for any evidence of drug activity.
[40] Yarmel added that he is trained in physical surveillance. He did that type of work for some seven years as both a member of the OPP and the Hamilton Police Service.
[41] He likened the use of the pole camera to looking out the window of a police vehicle while doing surveillance.
[42] After the date of the Moores’ “takedown”, Yarmel confirmed that he never utilized the pole camera again.
[43] Yarmel explained that it was his understanding the data collected by the pole camera was being stored on a cycle. Yet no one ever explained to him how long the cycle lasted.
[44] The officer never took steps to preserve the data himself. He did not believe that such a step was necessary.
[45] He added that he assumed incorrectly that the data was being stored. For investigative technique purposes, he knew that police would not be disclosing the data itself.
[46] Regarding the details of what was captured by the pole camera of the Moores’ residence, Yarmel remembered that no one utilized the front door. The side door of the house fronting onto the driveway was the common point of ingress and egress.
[47] Under cross-examination, Yarmel acknowledged his role as the lead investigator of the Moores. One of his duties was to maintain and preserve the evidence he collected while looking into their suspected criminal activity.
[48] He appreciated the importance of safeguarding the evidence to allow the accused to see what he obtained for purposes of making full answer and defence.
[49] Yarmel recalled that it was St. Cyr who made the request from the OPP TSB for the pole camera. It was St. Cyr who instructed him on how to use the surveillance the pole camera offered. No explanation on how to save the video footage was provided to him by either St. Cyr or members of the OPP TSB.
[50] Yarmel indicated that the targets of his investigation were Colin Campbell, Mr. Moore and Ms. Moore. It was the officer’s understanding that Colin Campbell and Mr. Moore primarily were selling cocaine. This was based on information received from confidential informants. However, Ms. Moore, as an occupant of the Ross Street residence in Renfrew, was not oblivious in the officer’s opinion to what was occurring.
[51] Yarmel agreed that the pole camera was up and running for a period of three months. He was not certain if whether December 9, 2021 was the date upon which became available for use by the Street Crime Unit. However, he accepted that that was the correct date if St. Cyr said it was.
[52] Yarmel knew that the pole camera was operating until March 8, 2022, the date when the second search warrant at the Moores’ residence was executed.
[53] Yarmel reviewed the video surveillance from the pole camera for six consecutive days between January 13 and 18, 2022, and later six further consecutive days between March 2 and 8, 2022. The officer allowed for the possibility that he set one day aside to review the March 2 - 8 segment of video surveillance.
[54] The officer agreed that there were extended periods of time over which police did not look at footage from the pole camera, even though it was running “24/7” for three months.
[55] He was quick to point out nevertheless that, like other forms of surveillance, police can only engage in that form of investigation over the course of select periods of time.
[56] What the pole camera offered was a more efficient use of police officers’ time. For example, a “longer bar” generated by the software for viewing the pole camera data signified a longer tract of time where motion was detected. There was no need to watch countless hours of just any motion captured such as blowing snow.
[57] After the execution of the search warrant on March 9, 2022, Yarmel became aware that the surveillance data of the Moores’ residence had not been saved. The officer himself did not make the decision to have the pole camera removed. When the Renfrew OPP no longer needed it, he advised his colleagues with the Pembroke Street Crime Unit to contact Rick Scott of the OPP TSB to ask for assistance installing it for their purposes.
[58] The officer had no knowledge of a malfunction with the pole camera on December 17, 2021.
[59] Yarmel clarified that he did not provide any actual data from the pole camera to the Justice of the Peace who issued the Warrants to Search the Moores’ residence.
[60] The officer indicated that he could have downloaded the data from the pole camera on to a hard drive while he was reviewing the footage from it. However, he assumed the data was being stored automatically.
[61] Yarmel did not know if the camera was on any form of rewrite cycle, for example, if it had a capacity to record for one week, then at the conclusion, it would start to overwrite the data it had stored at the beginning of its cycle.
[62] The officer confirmed that he did not seek a ‘general search warrant’ for the use of the pole camera, nor did St. Cyr. He did not believe such authorization under the Code would be required.
[63] Yarmel agreed that he did not appear to have any notes for his review of video surveillance provided by the pole camera during the entire month of February 2022.
[64] The extent of any guidance he received on the proper operation of the pole camera came from St. Cyr. Yarmel did not request any training from anyone else.
[65] Yarmel was clear in his evidence. He did not save the data stored by the pole camera because it was his understanding it would not have to be disclosed in any event. It was not required of police. It would compromise the future use of police investigative techniques. Consequently, he took no steps to preserve the data.
[66] He conceded that at no point in his ITOs did he make a claim for “investigative privilege”.
[67] To Yarmel’s knowledge, only St. Cyr and he had access to the video surveillance conducted by the camera. No third party company was able to access it.
[68] The camera itself provided only a fixed view of the Moores’ residence. The events it captured, even at night, were vivid. Street lighting may have assisted. However, the perspective was higher than what it would have been at eye level for most people.
[69] He believed that the pole camera data was being saved to a “cloud”, or something of that nature.
The Position of the Defence
[70] Counsel for the defence contended that relevance drives the degree of care to be taken by police in preserving evidence. Accordingly, there could be nothing more important than the data compiled by the pole camera in this case. It was relied upon heavily by police to justify the issuance of two search warrants granted to Yarmel to authorize the search and seizure of property within the Moores’ residence.
[71] Yet St. Cyr and Yarmel took no purposeful action to ensure the preservation of the pole camera video footage of the Moores’ home. They may have acted in good faith in assuming the data was being stored, but it was unsafe to do so.
[72] Neither officer took steps to ensure the evidence would be retained. Neither received any training from the OPP TSB on how to properly operate the pole camera. Nor did St. Cyr and Yarmel take it upon themselves to learn how to do it. Yarmel’s reliance upon St. Cyr for instruction on how to use the pole camera was a case of “the blind leading the blind”.
[73] The defence contends thus that the Moores have demonstrated on a balance of probabilities that disclosable evidence, the pole camera footage, was lost due to unacceptable negligence on the part of the Renfrew OPP.
[74] The nature of the evidence was critically important. The OPP relied upon it to obtain both search warrants for the Moores’ residence. The failure by police to preserve it has impaired their ability to make full answer and defence.
[75] Clearly, the OPP makes use of pole cameras in numerous investigations in differing situations but has failed to address the manner in which to store crucial evidence automatically in every instance where these devices are used. No one was called from the OPP TSB to explain what, if any, permanent data saving options exist for the pole camera. There may well have been a way to record and safeguard the video footage; however, the Court did not hear about it.
[76] As a result, the ability of the defence to mount a section 8 Charter challenge upon a review of the ITOs used to support the issuance of the search warrants in question for the Moores’ residence has been irredeemably prejudiced. Equally, the impending Garofoli application to seek leave to cross-examine Yarmel as the affiant, and possibly sub-affiants as well, has been weakened or completely undermined with the loss of the pole camera data.
[77] In terms of remedy, the defence submits that even prior to the hearing of any evidence at trial, a stay of the charges against the Moores is appropriate because no other available course of action can address the prejudice to the accused’s ability to make full answer and defence flowing from the lost evidence. In other words, a fair trial is no longer possible.
[78] The prejudice, the defence contends, caused by the abuse in question (i.e. the loss of the pole camera data) will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome.
[79] Alternatively, the defence seeks the excision of all offending paragraphs in the ITOs where pole camera evidence was used to support the issuance of the Warrants to Search granted for the Moores’ residence.
[80] Important factors for consideration of the type of evidence obtained through the video surveillance conducted by the pole camera are the times of day during which the camera recorded the comings and goings of the Moores and their guests, as well as the personal or private information gathered as a result.
[81] Police decided to zero in on approximately one third of the total time that the pole camera was recording the suspected drug activity. St. Cyr and Yarmel only looked at roughly 4 weeks of the 12 that the pole camera was in operation. The objectivity of the raw data has been lost. The Will Says produced by the officers are an inadequate substitute for the actual video footage in its entirety, which should have been turned over to the defence in compliance with the disclosure request made.
[82] In essence, the defence argues that without the raw data, there is no basis to test in cross-examination what Yarmel set out in his ITOs as observable and indicative of drug trafficking based on what St. Cyr and he reviewed from the recorded video footage taken by the pole camera. The officer’s review was very much incomplete and selective. The officer could have misinterpreted, embellished, or outright lied in his ITOs about what he was seeing.
[83] Further, the OPP ought to have obtained a general warrant under section 487.01 of the Code to authorize use of the “device” (i.e. the pole camera). The surreptitious utilization of the camera by the OPP to conduct surveillance of the Moores’ residence, where they clearly had a reasonable expectation of privacy, constituted a warrantless search over the course of three months.
[84] The loss of the video footage taken over this critical period removed any objective basis for:
a) attacking the reasonable and probable grounds for the issuance of the search warrants granted for the Moores’ residence,
b) demonstrating the extent to which police intruded upon the personal dignity and privacy the Moores deserved to have in their home, and
c) pointing to the best evidence available for demonstrating knowledge and control over what was occurring at the threshold of the residence.
[85] Lastly, the defence contended that it would be manifestly unfair to allow police to rely subjectively on what was relevant for their purposes only.
[86] At a minimum and as a measured remedy, the Court must therefore exclude any evidence obtained through use of the pole camera at the Moores’ trial, and excise any reference to such evidence in the ITOs used by Yarmel in seeking issuance of the search warrants executed at the Moores’ residence on February 8 and March 9, 2022.
The Position of the Federal Crown
[87] The Crown pointed out that in order to make out a breach of an accused’s section 7 Charter right to full answer and defence, the Moores must show on a balance of probabilities that:
a) the Renfrew OPP was unacceptably negligent by failing to preserve the raw data created by the pole camera through its recording of the Moores’ residence over the three month period in question, or
b) as a result of the loss of the evidence, the Moores’ right to a fair trial has been irreparably prejudiced.
[88] Unacceptable negligence goes beyond mere negligence. It is a higher threshold for the defence to meet.
[89] The conduct of St. Cyr and Yarmel did not rise to the level of unacceptable negligence. Both officers accessed the pole camera data through a password-protected software program loaded onto a laptop which they used in their offices at the Renfrew OPP detachment. The officers could readily access for their viewing each and every day surveillance was conducted by the camera. They had no reason to believe it would not remain accessible for the indefinite future. Yarmel himself believed genuinely that the raw data was being stored as such.
[90] Further, Yarmel likened the recordings made by the pole camera to physical surveillance he would do from a police cruiser in the past. By extension, if such surveillance had been conducted by the OPP in its investigation of the Moores, all that would have been disclosed to their defence counsel would be the notes kept by the officer(s) conducting the stake out. The defence, of course, has all of those notes taken by St. Cyr and Yarmel.
[91] Once the pole camera was taken down, St. Cyr and Yarmel did not know that the video footage of the Moores’ residence would be deleted. There was nothing in their use of the software program for viewing the video evidence captured by the pole camera to suggest the data would be lost once the camera was taken down and handed over to another police team.
[92] Indeed, it was not until defence counsel requested as additional disclosure the raw data from the pole camera that the Crown learned of the loss of the data after the camera had been handed over to the Pembroke Street Crime Unit for its use.
[93] The Crown sought to rely upon the “human nature” exception referred to in the benchmark case of R v. La, [1997] 2 S.C.R. 680, decided a quarter century ago by the Supreme Court of Canada. In essence, the Crown argued that despite efforts made by police to preserve the fruits of their investigation, owing to frailties of human nature, evidence will occasionally be lost.
[94] The remedy of a stay can only be granted in “the clearest of cases”. Indeed, the defence appeared to abandon this request during oral submissions by asking for the exclusion of any reference to the pole camera evidence in the ITOs in question and during the trial proper.
[95] The Crown argued further however that excision is not an appropriate remedy. A Garofoli Application, and then a section 8 Charter Application, are both pending. Only during those proceedings could the remedy of excision be considered properly by the Court
[96] The Crown emphasized that there is still a written record for the observations made by St. Cyr and Yarmel, which are adequate substitutes for the video footage itself chronicling what was recorded by the pole camera.
[97] It is purely speculative on the part of the defence to suggest that the raw data would show anything at all at odds with what St. Cyr and Yarmel set out in their Will Says.
[98] Finally, regarding the absence of any ‘general warrant’ granted under section 487.01 of the Code to use the pole camera, the Crown points out that the Moores could have had no reasonable expectation of privacy in the surreptitious recording of what was occurring at the front of their house or in their driveway. Everything captured by the pole camera was capable of being observed by members of the public.
Issues
[99] The Charter Application brought on behalf of the Moores raises the following issues for resolution by the Court:
a) Was the Renfrew OPP obliged to obtain a general warrant under section 487.01 of the Code prior to installing the pole camera?
b) Did the Moores have a right of disclosure to all video surveillance footage (i.e. the raw data) stored by the pole camera device?
c) Was the loss of the raw data due to unacceptable negligence on the part of the OPP?
d) Was the loss of the raw data so prejudicial to the right to make full answer and defence that it now precludes the Moores’ right to a fair trial?
e) In the event there was an infringement or denial of the Moores’ rights under sections 7 and 11(d) of the Charter, what is the appropriate remedy?
The Law
[100] Section 7 of the Charter reads:
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.
[101] Further, section 11(d) of the Charter provides:
11 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.
[102] Section 24(1) of the Charter states:
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.
[103] In R. v. Bero, 2000 ONCA 16956, Doherty J.A. at para. 30 adopted the following, very helpful encapsulation of the principles set out by the Nova Scotia Court of Appeal in R. v. F.C.B., 2000 NSCA 35 to be applied in determining whether the loss or destruction of evidence constitutes a breach of the section 7 Charter rights of an accused:
(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 the 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.
[104] My analysis of the issues to be decided will, of course, be guided by adherence to the principles enumerated above.
Analysis
Was the Renfrew OPP obliged to obtain a general warrant under section 487.01 of the Code prior to installing the pole camera?
[105] In R. v. Hoang, 2021 ONSC 6054, Maxwell J. was faced with an argument contending that the failure of the Toronto Police Service to obtain a general warrant under section 487.01 of the Code for use of a pole camera was a violation of section 8 of the Charter. His Honour found that it was not. He stated:
[58] I do not accept that the use of the pole camera, mounted on public property and capturing only the outside area of the applicant’s residence, constitutes an illegal search.
[59] In order for s. 8 of the Charter to be engaged, a person must have a reasonable expectation of privacy: R. v. Edwards, [1996] 1 S.C.R. 128. The Supreme Court of Canada in R. v. Tessling, [2004] 3 S.C.R. 432, 2004 SCC 67, at para. 32, modified the criteria for determining whether a reasonable expectation of privacy exists in circumstances of surreptitious recordings:
i. What is the subject matter of the recording;
ii. Did the party claiming a privacy interest have direct interest in the subject matter of the recording;
iii. Does the party claiming a privacy interest have a subjective expectation of privacy in the subject matter of the recording;
iv. If so, was the expectation reasonable, having regard to:
a. the place where the alleged “search” occurred;
b. whether the subject matter was in plain view;
c. whether the subject matter was abandoned;
d. whether the subject matter was already in the hands of a third party;
e. whether the police technique was intrusive in relation to privacy interests;
f. whether the use of surveillance technology was itself objectively reasonable;
g. whether the recording exposed intimate details of the party’s lifestyle, or information of a biographical nature.
[60] As to the subject matter of the recording, no evidence was filed on the application setting out the specific location of the camera(s) or the specific capabilities of the recording device. However, I accept the characterization of the recording set out in para. 50 of the applicant’s factum in which he states:
The camera was pointed at the Applicant’s house, monitoring and recording everyone who came and went at all times of day from July 9-17, 2018. Police detailed this information in a summary that documented who was coming and going from the house, their licence plate and car model, the time and date they were present and what they were doing.
[61] I take from this description that the recordings, although surreptitiously made, were taken from a device situated on public property, did not record audio, and captured activities and traffic (both pedestrian and vehicular) at the front of the house, visible to the public eye.
[106] Further, he explained:
[64] Assuming the applicant asserts a subjective expectation of privacy, the pivotal question is whether that expectation was objectively reasonable. Having regard to the factors set out above, the following are the key features of the recordings:
First, the recordings capture the front area of the applicant’s home, recording the movement of people and vehicles in and out of his home and any activities which took place in front of the home;
Second, there is no suggestion that anything captured was not in “plain view” of the public;
Third, there is no evidence that the police used any enhanced recording devices or tools to conduct a more invasive search, such as technology that would allow for recording activities inside the home using telescopic lenses;
Fourth, there is no evidence that any personal or core biographical information was captured by the surveillance. The purpose of setting up the pole surveillance was to capture the applicant’s comings and goings, record what vehicles he used, and identify people and vehicles attending the address. As the Court of Appeal for Ontario held R. v. Yu, 2019 ONCA 942, 383 CCC (3d) 260, at paras. 76-77, gathering basic information such as the fact of residency and an accused’s comings and goings is information which would be available in public view: See also R. v. Saciragic, 2017 ONCA 91, at paras. 31-32; R. v. Bryntwick, 2002 ONSC 10941, at para. 21;
Finally, while it is well established that surreptitious state recording is highly, if not uniquely, invasive of individual privacy (R. v. Wong, [1990] 3 S.C.R. 36, [1990] 3 S.C.R. 36), there is a notable distinction between recordings made in areas which attract some degree of a reasonable expectation of privacy (such as common areas inside a dwelling) and areas outside a building and in public view. The court remarked in Yu, at para. 82:
Once inside an access-controlled condominium building, residents are entitled to expect a degree of privacy greater than what, for instance, they would expect when approaching the building from the outside. This results from the fact that anyone can view the building from the outside … (emphasis added)
[65] In this case, the recording captured the front area of the outside of a home. If there is any expectation of privacy in this area, it is highly diminished. This case is distinguishable from cases involving surreptitious state recordings of common areas in a private condominium building (Yu), or the backyard of a private home bordered by trees and retaining walls preventing a public view of the backyard area (R. v. Wong, 2017 BCSC 306, at para. 33).
[107] Defence counsel drew to my attention to the decision of Cullin J. in R. v. Aubrey, 2022 ONSC 635. In Aubrey, the police officer, who utilized a video surveillance camera aimed at a residence believed to be a “stash house” of an alleged drug trafficker, testified during the preliminary inquiry that he did not believe a prior judicial authorization was required for the “public view” camera.
[108] The camera recorded over a period of four months the comings and goings of the targets of the investigation including the accused. It was positioned to capture the front of the residence and a portion of the accused’s driveway. The images and observations recorded by the camera were set out in an ITO used to grant authorization to police to enter and search the accused’s residence.
[109] Cullin J. ultimately found that the accused had a privacy interest in both the area that was the subject of the surveillance, and in the information which was captured by the camera. His Honour specifically found at para. 32 that:
The video surveillance effectively permitted the police to breach the barriers surrounding the applicant’s residence by providing a view of the applicant’s property not otherwise available to the public (my emphasis).
[110] Further at paragraphs 33 and 38, His Honour went on to conclude:
While he may have accepted that passersby could make casual observations of him and the exterior of his residence, it is reasonable to conclude that he did not expect to be subjected to constant recorded video surveillance while on his property, out of public view, and for those recordings to be the subject of review by police.
The video camera was installed specifically because the police view of the property from the street was limited. It is objectively reasonable that the applicant would not have expected the police to install a video camera to surveil his residence from a superior vantage point in the absence of a warrant.
(my emphasis again).
[111] I distinguish Aubrey on the basis that Cullin J. clearly regarded the perspective the camera provided to police on the evidence put before him was superior to what would be available to the naked eye. That is not the case before me. Nor were the Renfrew OPP or the OPP TSB, in this case, as police apparently could on the facts as found by Cullin J. in Aubrey, “ . . . able to pause, replay, enhance, and study the video captured.” The “very reason that the camera was installed was to provide views of the [accused’s] property, and by extension to obtain information about the activities being conducted on the property, that were not possible from the street and were not subject to public view”. (see Aubrey, paras. 40 and 50)
[112] I accept St. Cyr’s and Yarmel’s evidence that the pole camera recorded only what a person on the street could see, or a police officer looking out the window of a cruiser could observe. I have no reason to reject their testimony on this point. Unfortunately, their evidence cannot be confirmed due to the loss of the video surveillance footage from the camera.
[113] In any case, I adopt the reasoning of Maxwell J. in Hoang and find that the Renfrew OPP did not have to apply for a general warrant under section 487.01 of the Code prior to utilizing the pole camera as they did to conduct surveillance of the Moores’ residence. The camera was a reasonable substitute for police otherwise having to conduct physical surveillance. In my view, the camera captured roughly what a police officer could have seen of the comings and goings at the Moores residence, if the officer had been in a second-story window in a residence across the street from them.
[114] For these reasons, I have no criticism for the decision made by police not to obtain a general warrant for use of the pole camera.
Did the Moores have a right of disclosure to all video surveillance footage (i.e. the raw data) stored by the pole camera device?
[115] In R. v. La, supra, Sopinka J. observed at para. 16:
Since this Court’s decision in R. v. Stinchcombe, [1991] 3 S.C.R. 326 (“Stinchcombe (No. 1)”), the obligation of the Crown to disclose all relevant information in its possession, whether inculpatory or exculpatory, whether the Crown intends to rely on it or not, has been well established.
[116] Further at para. 20 of La, supra, Sopinka J. went on to explain:
[It is] 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.
[117] In R. v. Hersi, 2019 ONCA 94 Doherty J., on appeal from a conviction for the offence of attempting to knowingly participate in a terrorist group, and counselling such participation, commented on text messages destroyed by an undercover officer regarding conversations he shared with the appellant. The undercover officer testified that he destroyed the text messages because they contained only social chatter, or discussions about plans to meet at sometime later. In the opinion of the officer, there was nothing of substance to the texts.
[118] To the contrary, Doherty J. observed:
[32] The trial judge’s finding that the destruction of the text messages was not unacceptable negligence was predicated on the UC’s evidence that the messages contained only discussions about plans to meet and other social chitchat. It is, however, no part of the police function when considering whether material should be preserved for disclosure purposes to assess the potential significance beyond a consideration of relevance in the broadest sense. In my view, it is unacceptable that, almost 30 years after Stinchcombe, the UC could operate under the belief that he need save only relevant material that he viewed as significant.
[33] I think a reasonable officer in the position of the UC would have appreciated that the prosecution would ultimately turn largely on the communications between himself and the appellant, and that it was therefore important to preserve all communications between them. Indeed, the UC seemed to appreciate the need to preserve the content of the text messages since he went to the trouble of making verbatim handwritten copies of the contents before destroying the actual text messages.
[34] Given the nature of the investigation, the destruction of the text messages fell well below what should be expected of a reasonable police officer properly informed of the prosecution’s disclosure obligations. The Crown failed to show the absence of unacceptable negligence. The destruction of the text messages interfered with the appellant’s ability to make full answer and defence, and breached his s. 7 rights.
[119] In R. v. Dulude, 2004 ONCA 30967, Laskin J.A. explained that the relevance threshold is low. He specifically stated that the right to disclosure “... includes material which may have only marginal value to the ultimate issues at trial”; and in the words of LeBel J. in R. v. Taillefer, [2003] 3 S.C.R. 307, 2003 SCC 70, “little information will be exempt from the duty that is imposed on the prosecution to disclose evidence” (at para. 60).
[120] The Crown did not, in this case, contest to any great extent that the raw data from the pole camera was disclosable evidence. The Renfrew OPP and the OPP TSB ought to have known of the importance of the entirety of the video surveillance conducted of the Moores’ residence given its value to the police investigation. Careful steps ought to have been taken to safeguard and preserve that evidence. That neither the investigating officers nor the OPP TSB took action to preserve the evidence is, in my humble view, unfathomable.
[121] When defence counsel sought as additional disclosure the raw data, it ought to have been available to be turned over by the Crown. It was clearly relevant. The nature of the evidence was critical to the issuance of the warrant to search the private residence of the Moores. The footage most definitely ought to have been safeguarded and retained by police for an objective review undertaken by or on behalf of an accused.
Was the loss of the raw data due to unacceptable negligence on the part of the OPP?
[122] In R. v. Janeiro, 2022 ONCA 118, Paciocco J.A. succinctly set out the legal principles at play in a lost evidence Charter application:
[107] Where a Charter applicant has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is, negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed: R. v. La, [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30.
[108] Indeed, the relevance or importance of the evidence is an important consideration in setting the degree of care expected. As the relevance of the evidence increases, so too does the degree of care required in preserving the evidence: La, at para. 21; Hersi, at para. 30.
[123] In Janeiro, supra, the facts involved the loss of a security camera video of a robber wearing a ski mask or a balaclava inside a doughnut shop. The police investigating the robbery seized the video in 2011. The case went cold for over five years until Mr. Janeiro was subsequently convicted of a criminal offence. A left thumb print was lifted from a white plastic “kitchen” garbage bag that the robber left on the counter near the cash register of the donut shop. It matched Mr. Janeiro’s. As a result, he was charged with the robbery.
[124] One of the investigating officers testified that he viewed the security video on November 9, 2011. He prepared a supplementary report of what he observed.
[125] At trial, another officer testified that he kept the security video in a file folder along with photographs in a locked drawer that belonged to him in the criminal investigation office. It remained there until the donut shop robbery investigation was designated as “inactive” in the summer of 2012.
[126] Despite efforts made by the police to locate the missing security video, it was never found.
[127] Mr. Janeiro was convicted following trial on February 11, 2020.
[128] On appeal, Paciocco J.A. stated:
[118] . . . the trial judge erred in concluding that the notes that the police officers took when watching the security video diminished the importance of preserving the security video itself. That conclusion is not reasonably available given that the police notes gave rise to disagreement between the officers on the important question of whether the robber was wearing gloves at the time of the robbery.
[119] Moreover, I take issue with the trial judge’s conclusion that “several police officers viewed the video and took notes with an eye to gleaning from it any information it could yield as to the identity of the robber”. PC Fawcett took no notes. DC Johnson watched only part of the security video to look for persons of interest known to him. Apart from describing the pants worn by the robber, DC Johnson gave no evidence from his notes about the description of the robber. Retired Sgt. Ferrier took no notes of the robber’s appearance either, given that his interest was in finding areas where fingerprints may have been left. PC Dietrich alone testified that he attempted to record his observations of the robber, but he did not even mention the balaclava that was worn or describe the pants depicted in the video, as DC Johnson did. The notes of the officer’s observations of the security video, such as they were, do not materially diminish the importance of preserving the security video itself. It was contrary to the evidence for the trial judge to find so.
[123] PC Fawcett chose this method of storage for important evidence notwithstanding the availability of a controlled property room where evidence is logged, and in the face of his knowledge that it was “procedure” to store evidence there. For some unexplained reason, he believed that digital evidence was somehow different, contrary to DC Thomson’s testimony that “everybody” stored their video evidence in the property room. Although I believe it to be a difficult finding to make on the evidence I have just described, I do accept that it was open to the trial judge to find, as he did, that there was no specific policy that video evidence was to be stored in the property room and that “it was left to each officer” to determine how to store video evidence. However, that does not alter my view that the choice that PC Fawcett made was not reasonable in all the circumstances. Much more should readily be expected of police officers, who control important evidence on which individual liberty will be determined.
[129] In R. v. St. Clair, 2020 ONSC 2251, Goldstein J. had before him an accused charged with several offences relating to the possession of an illegal firearm, a sawed-off shotgun.
[130] Police seized surveillance video from locations relevant to the case. They subsequently lost that evidence.
[131] In making a finding of unacceptable negligence on the part of the Metropolitan Toronto Police Service for losing the video, His Honour stated:
[39] Moreover, I agree with Mr. Feldmann that the police did breach the duty of disclosure when they lost the video. I also agree with him that the negligence is unacceptable. The explanation – or non-explanation – is not satisfactory. The police simply do not know what happened. Mr. Feldmann does not argue that the police acted maliciously, or that there was bad faith. I agree. There is no evidence of bad faith, or a deliberate pattern of disregarding Mr. St. Clair’s rights. There is no evidence the police tried to cover up the error. It is reasonably clear that this is case of a large bureaucratic organization making a bureaucratic error. I am not sure why the police did not place a copy of the video in the divisional locker, where there is a record of items deposited and retrieved. I am also not sure why the video was not provided to Video Services, a part of the Toronto Police that copies and stores video. Neither of those things was done. The inescapable conclusion is that the police failed in their duty to preserve evidence. Regrettably, given the lack of explanation, I must characterize the negligence as unacceptable.
[132] In R. v. Forster, 2005 SKCA 107, the Saskatchewan Court of Appeal was dealing with the loss of a computer disc containing initial notes kept by the investigating officer. The officer with two years experience undertook an investigation of three individuals he suspected were trafficking in illegal drugs. He began collecting and recording information on a computer disc with a view to obtaining a search warrant for places he expected that the cultivation of marijuana was occurring.
[133] The officer made observations which were variously committed to memory, written on his hands, or written on scraps of paper and ultimately recorded on the disc. Any original notes which were made were destroyed, except for notes made respecting the execution of the search warrant, which was ultimately obtained, and which saved notes were disclosed to the Crown.
[134] The investigation consisted of obtaining information from confidential informants; from driving by two buildings owned or occupied by the respondents “hundreds of times”, and noting vehicles parked there and relating them to the respondents; determining the ownership and occupancy of the buildings and the amount of the electrical usage in the buildings; and using an infrared imaging device to measure heat sources in one of the residences.
[135] Using the information on the disc, the officer prepared and swore an Information to Obtain a Search Warrant. He obtained a Warrant to Search the two buildings on February 2, 2001. He destroyed the disc to “protect his confidential police informants.”
[136] Shertobistoff J.A. explained the shortcomings of reliance on what an officer wrote in his Information to Obtain as a substitute for the computer disc. He stated:
[26] While the officer swore that everything on the disc was contained in the Information, it is obvious that the conversion of that information from the form of entries made from time to time over a period of many months into the form of an Information to Obtain a Search Warrant involved not only reorganizing, rewording and editing all of the material, but, almost certainly, some selection and discarding of material that was, in the opinion of the officer, not significant or useful. These processes would, in all likelihood, put all of the information in the very best light for the Crown in its application for the search warrant, as opposed to its original form, and would tend to minimize the aspects unfavourable to the success of the application. They would have certainly changed the form of the content of the disc, and very probably, to some degree, also the substance of the content of the disc. Those changes could have been of use to the defence.
[137] Further, Shertobistoff J.A. pointed out:
[28] There are many uses to which the destroyed notes and the original content of the disc as well as the changes between that content and the content of the Information to Obtain a Search Warrant could have been put to by the defence at trial. The credibility of [the officer] would be important at a trial since it was his sworn evidence that obtained the search warrant and it was the search warrant that uncovered the evidence to support the prosecution. The information on the disc in its original form would be invaluable in any attack on the validity of the search warrant. If there were inconsistencies between the notes, the content of the disc, the Information, or the constable’s evidence on a voir dire, or at trial, his credibility could have been challenged. This is a frequent and necessary use of police notes and often the only effective way to test the credibility of a police witness. The defence in this case has been deprived of all that.
[138] On the evidence put before me at the hearing of this Application, I find that both St. Cyr and Yarmel took no steps to safeguard the surveillance video footage taken by the pole camera. St. Cyr testified that he turned over the task of reviewing the surveillance video to Yarmel. Before St. Cyr did so, he did not turn his mind to the need to preserve the fruits of his investigation offered by the motion detected, recorded comings and goings taken by the pole camera of the Moores and their visitors at their residence.
[139] St. Cyr asked no questions of the OPP TSB to ensure the raw data was being stored, even though the camera malfunctioned on one occasion while he was still tasked with reviewing the video footage, and making notes regarding significant occurrences. If ever there was a time when the importance of securing the data ought to have been manifest for St. Cyr, this glitch, it appears, did not jar him or prompt him into action.
[140] For his part, Yarmel assumed unwisely that the data was being stored to a cloud, or some other receptacle for it. He did not ask the OPP TSB if this was indeed the case. He also believed that the raw data would not be disclosable because it would reveal an investigative technique. No such claim of privilege was advanced by the Crown.
[141] Moreover, I have no explanation whatsoever provided to me by the Crown as to why it appears to be the policy of the OPP TSB to erase the memory of the pole camera, and the video footage recorded, when the camera is taken down at the end of one investigation, and utilized elsewhere for another.
[142] The police inaction, the assumptions made by Yarmel and the absence of any explanation from the OPP TSB as to why raw data was erased leads me to the inescapable conclusion that the OPP were unacceptably negligent in deleting the memory of the pole camera at the conclusion of the Renfrew OPP investigation into the Moores’ suspected drug trafficking. The device contained critical evidence relied upon by police to obtain search warrants on two separate occasions, which were executed at the Moores’ residence. The importance of the data it had stored should have been readily apparent to all levels of police.
[143] Both St. Cyr and Yarmel were lacking in appreciation of their roles for preserving the fruits of the investigation. Falsely, they believed that they themselves determined what was worthy of note from the surveillance video they reviewed.
[144] The officers’ Will Says and what Yarmel chose to set out in the ITOs are poor substitutes for the actual recording of the images and events captured by the pole camera.
[145] I do not accept that owing to human frailty, this raw data was lost. Instead, both officers clearly did not advert to their duty to safeguard critical evidence. Their joint decision not to take steps for learning about, preserving and saving the raw data is inexcusable.
[146] Further, as a matter of policy, I cannot condone any police practice of erasing raw data from a pole camera used for an investigation which may have ended, but for which charges from its use remain outstanding.
Was the loss of the raw data so prejudicial to the right to make full answer and defence that it precludes the Moores’ right to a fair trial?
[147] In La, supra, Sopinka J. spoke of the potentially devastating impact a single piece of lost evidence may have on the right of an accused to a fair trial. At para. 24, he stated:
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.
[148] Paciocco J.A. expanded upon this theme in Janeiro, supra. He wrote:
[109] Alternatively, a Charter applicant will succeed even in the face of a satisfactory explanation for the loss or destruction of evidence if they establish that the lost evidence is so important that its loss undermines the fairness of the trial: La, at para. 24. This is a difficult hurdle. In Bero, at paras. 49, 52, Doherty J.A. made it clear that showing a reasonable possibility that the lost evidence could have assisted the defence is not enough to establish that the right to full answer and defence has been undermined. This is so even though the inability to determine whether the lost evidence was harmful, neutral, or helpful to the defence may arise because of the loss of the evidence by the police. In order to demonstrate irremediable prejudice when seeking a remedy, a Charter applicant must establish that the evidence would have played an important role in their defence. I see no reason why the same standard would not apply in determining whether a Charter breach occurred on the basis that the loss of evidence undermined the fairness of the trial.
[149] Clearly, the test as articulated by Paciocco J.A. sets the bar high for an accused to succeed on an argument that lost evidence is so critical that it essentially deprives him or her of the right to a fair trial. Where lesser remedies than a stay can be offered, they must be considered.
[150] I find that the Moores’ right to a fair trial has not been eradicated by the loss of the raw data from the pole camera. A lesser remedy, in my humble view, will suffice as “appropriate and just” under section 24(1) of the Charter.
In the event there was an infringement or denial of the Moores’ rights under sections 7 and 11(d) of the Charter, what is the appropriate remedy?
[151] Having found that a breach of the Moores’ section 7 Charter rights have been infringed, I turn to the relief which can be offered to them following an examination of all of the circumstances surrounding the loss of the evidence.
[152] In R. v. O'Connor, [1995] 4 S.C.R. 411, L’Heureux-Dube explained the preconditions to the granting of a stay of proceedings as a section 24(1) form of relief for a Charter infringement:
75 Where there has been a violation of a right under the Charter, s. 24(1) confers upon a court of competent jurisdiction the power to confer "such remedy as the court considers appropriate and just in the circumstances". Professor Paciocco, supra, at p. 341, has recommended that a stay of proceedings will only be appropriate when two criteria are fulfilled:
(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 reasonably capable of removing that prejudice.
I adopt these guidelines, and note that they apply equally with respect to prejudice to the accused or to the integrity of the judicial system.
[153] In Janeiro, supra, Paccioco J.A. highlighted the “extraordinary” quality of a stay as a remedy. He stated:
[111] If a breach is identified on either of the alternative bases I have just described, the second question – the appropriate remedy – arises. In this case, Mr. Janeiro sought a stay of proceedings. As I will reinforce below, that remedy is provided only in extraordinary circumstances, where real irremediable prejudice to the right to full answer and defence has occurred: La, at paras. 23, 24; Hersi, at para. 25; Bero, at para. 42
[154] In Dulude, supra, Laskin J.A. approached the determination of an appropriate remedy as follows:
[36] . . . 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 ONCA 52161, 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.
[37] In this case, the integrity of the justice system has not been prejudiced. The defence has not alleged that the Crown intentionally erased the tape to avoid disclosure or that erasing the tape reflected a “systemic disregard for the prosecution’s obligation to preserve relevant evidence”: See R. v. Bero, supra, at para. 45. Nothing in the record would support such allegations.
[38] Therefore, whether a stay is warranted turns on the effect of the lost videotape on Ms. Dulude’s ability to make full answer and defence and, therefore, on her ability to have a fair trial. The main considerations are the degree of prejudice to Ms. Dulude caused by the loss of the security videotape and whether the prejudice that does exist can be alleviated by means short of a stay: See Bero at para. 48.
[39] Because the security videotape has been irretrievably lost, assessing the degree of prejudice is, to some extent, speculative. However, as I have already discussed earlier in these reasons, at best the videotape was marginally relevant to the defence. Correspondingly, the prejudice from its loss is minimal. Certainly, its loss does not irreparably prejudice Ms. Dulude’s ability to make full answer and defence or her right to a fair trial. Therefore, a stay is not warranted. Another remedy short of a stay is readily available to alleviate any prejudice.
[155] In St. Clair, supra, at para. 41, Goldstein J. considered the appropriate remedy for lost video surveillance to be excision of the images the recorded footage would have shown from the ITO sworn in support of the execution of a search warrant at the place on which the camera was trained. Similar remedies of excision were also offered in the cases of R. v. Pham, 2021 ONCJ 285 at para. 197, and R. v. Wong, 2017 BCSC 306 at para. 48.
[156] In this case as well, I find that the relief I must offer to address the breach of the Moores’ section 7 Charter rights through the loss of the raw data from the pole camera is excision.
[157] Specifically, I will order to be excised from the ITO sworn by Yarmel on February 7, 2022 the following paragraphs:
a) 9.21
b) 9.24
c) 9.25
d) 9.26
e) 9.27
f) 9.28
g) 9.29
h) 9.30
i) 9.37
j) 9.38
k) 9.39
l) 9.40
m) 9.41
n) 9.42
o) 9.43
p) 9.44
q) 9.52
r) 9.53
[158] From the ITO sworn by Yarmel on March 9, 2022, I will order excision of paragraphs:
a) 5.9
b) 5.14
c) 9.21
d) 9.24
e) 9.25
f) 9.26
g) 9.27
h) 9.28
i) 9.29
j) 9.30
k) 9.37
l) 9.38
m) 9.39
n) 9.40
o) 9.41
p) 9.42
q) 9.43
r) 9.44
s) 9.52
t) 9.53
u) 9.61
v) 9.62
w) 9.63
x) 9.64
y) 9.65
z) 9.66
aa) 9.67
bb) 10.4 (specifically, only the last sentence will be removed)
cc) 10.7
dd) 10.9
ee) 10.15 (specifically, the phrase “observations made using the covert surveillance camera on Ross St. in Renfrew, ON”)
ff) 12.5
Conclusion
[159] For the reasons above, I am satisfied on a balance of probabilities that the OPP in this case breached the section 7 Charter rights of the Moores by either deleting or losing the raw data from the pole camera.
[160] Accordingly, I must grant in part the application brought by both defence counsel on behalf of the Moores. The appropriate remedy is not a stay of proceedings, which is reserved for the “clearest of cases”. Rather, there will be the excision from the ITOs of any reference to “covert surveillance device,” and what it captured.
DATED: February 21, 2023
March, M.G., J.