ONTARIO COURT OF JUSTICE DATE: 2024 08 30
COURT FILE No.: Peel – Mississauga Information No. 7080
BETWEEN:
His Majesty The King
— AND —
Sarveswaran RATNASABAPATHY
Before Justice of the Peace Natalia Krayzman
Heard on December 11, 12, 2023, July 30, 2024 Reasons for Judgment released on September 3, 2024
Counsel: S. Skoropada (Counsel) ......................................................... counsel for the prosecution R. Rowe (Licenced Paralegal) ……. for the defendant Sarveswaran Ratnasabapathy
JUSTICE OF THE PEACE N. KRAYZMAN (written reasons):
[1] The Defendant Sarveswaran Ratnasabapathy stands charged with making a right turn not in safety on March 17, 2019, contrary to s.142(1) of the Highway Traffic Act.
[2] As part of the investigation, and shortly after arriving on scene, the police removed his dashcam and its memory card from his vehicle. The officer attempting to view its contents found it to contain no footage and he concluded that its memory card must be corrupted. He returned it to the Defendant three days after the incident. The Defendant apparently told the Officer that he would take it to a company to try to retrieve files from it himself.
[3] The Defendant has now brought a lost evidence application under s. 7 of the Charter of Rights and Freedoms. The basis of the application is that his dashcam video of the accident was improperly and negligently removed, handled and stored by the police, causing the best evidence to be lost, and impacting how the police conducted their investigation. He asserts that no satisfactory explanation for the loss has been provided by the Crown, and that the evidence is so important that its loss makes a fair trial impossible, thus violating his right to make full answer and defence guaranteed by s.11(d) of the Charter. He argues that a stay of proceedings under s. 24(1) of the Charter is the only remedy available that can address the infringement.
[4] The Defendant’s Paralegal argued that the dashcam video could have proven that all the witnesses presented by the Crown colluded with one another or were confused as to what they saw and that the video would have cleared this matter up years ago. He stated in submissions that the dashcam video could have convicted or exonerated the Defendant and could have identified the Defendant.
[5] The Crown argues that the Applicant has not met the 2-part test set out by the Supreme Court of Canada in R. v. La, that he did not discharge his onus in proving there was a breach of his Charter rights, and that the application should be dismissed.
[6] Specifically, the Crown argues that there is no evidence the dashcam video worked, was recording, that its contents were ever saved onto the memory card, or how long any footage is even retained. The Crown submits that we have heard no evidence on where it was positioned, what it would have captured, or that it was even on at the time of this incident. The Officer who attempted to view the footage found nothing on it and immediately returned it to the Defendant, who apparently later told him he brought it to a company to attempt to retrieve files from it but never informed him, or the court about the results of that action. The Crown argues that the Applicant has not proven that there was ever any footage on it and therefore it has not proven that there was evidence that was lost. The Crown further submits that there was no evidence presented that the dashcam and its memory card were ever negligently handled by the police.
[7] With respect, I find that there was no violation of the Applicant’s rights under the Charter as a result of the police’s handling of the Applicant’s dashcam or its associated memory card and this application is dismissed.
The Procedure Used for the Hearing
[8] The Defendant’s Paralegal, Mr. Ricardo Rowe, argued at the start of trial that this application should be heard first, before the trial proper. The Crown disagreed and said that, in line with the leading precedent on the subject, these types of applications should be heard at the end of all evidence, since it would only be after all evidence is heard, particularly with respect to the police testifying, that a decision on this application could be properly made. The Crown also pointed out that this Defence request came late and all Crown witnesses were present and ready to testify. It was not clear that they would all be available on the next scheduled day, but it would certainly be inconvenient or difficult for them all to return, particularly since they have attended on prior trial dates for this matter that did not proceed.
[9] I denied the Defence request and ruled that the application would be decided at the end of the trial for two reasons that were essentially in agreement with the Crown.
[10] First, this is the approach endorsed by the leading authorities on the matter, as summarized by the court in R. v. Janeiro, 2022 ONCA 118, 501 C.R.R. (2d) 142, at para 106:
…unless the appropriateness of a stay of proceedings is manifest at the outset of trial, applications for stays of proceedings should not be adjudicated until after the evidence in the case has been heard so that issues of prejudice can be more meaningfully assessed: R. v. Bero, 137 O.A.C. 336, 151 C.C.C. (3d) 545 (Ont. C.A.), at para 18.
[11] This is an inherently reasonable approach. Having read the Application and Response on the trial date, the appropriateness of a stay of proceedings was far from manifest at the outset in this case.
[12] Second, all the Crown witnesses were present at the first day of trial when defence made this request. To accept the Defence argument and hear the Charter applications first would have meant delaying the start of trial for another day, given that they suggested it would take about a day to argue both this and their 11(b) application. This would have necessitated adjourning the start of the trial proper to an additional day when all the Crown witnesses would be available. All the Crown witnesses were available and present on the first day of trial, but many were not necessarily available on the next scheduled continuation date. Given this, the fact that this case involved a fatality, and that it was already 5 years old, it made much more sense, in the interests of justice, to avoid a further delay and to start the trial immediately.
The Law on Lost Evidence
[13] Section 7 of the Charter provides that “Everyone has the right to the life, liberty and security of the person and the right not to be deprived thereof in accordance with the principles of fundamental justice.” Section 11(d) entitles those charged with an offence to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.
[14] The onus is on Mr. Ratnasabapathy to prove the alleged s.7 violation on a balance of probabilities.
[15] The principles of fundamental justice include the right to make full answer and defence, which includes the Crown’s duty to make full disclosure of evidence in their possession or control. The police have a duty to preserve relevant material in their possession or control so that the Crown can disclose it. If an applicant shows disclosable evidence has been lost, this would amount to a violation of their s.7 rights unless the Crown can provide a reasonable explanation for the loss, and show that it did not occur through unacceptable negligence.
[16] In R. v. Janeiro, 2022 ONCA 118, 501 C.R.R. (2d) 142, at paras. 107-109, the court succinctly summarized the law as set out over many years by prior courts on lost evidence applications:
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. Similarly, as the relevance decreases, the required degree of care is reduced. In R. v. Sheng, 2010 ONCA 296, 254 C.C.C. (3d) 153, for example, before audiotapes of police interviews were destroyed, a decision had been made not to charge the accused. The investigation was reopened only years later. This reduced the reasonable perception of the importance of the evidence at the time it was destroyed, lowering the standard of care required.
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.
Analysis
[17] Officer Robert Mooney testified that he was in charge of this investigation. He testified as part of a Voir Dire in relation to the lost evidence application. Officer Mooney said that when he arrived on scene, another officer already there, Sargeant Makin, turned over to him a dashboard camera and video card from the Ridgeline motor vehicle that was apparently involved in this accident involving the death of a pedestrian. He testified that the two seized items were separate but placed in a property bag and labelled with a number. Officer Mooney testified that Sargeant Makin told him he seized the items as he was providing them to Officer Mooney.
[18] Officer Mooney testified that the dashcam and video card seizure is part of the protocol in cases such as this to prevent evidence from being lost or destroyed because there have been cases where it was not seized and then lost. He said that some dashcams have something called a sentry feature, meaning if it is turned on, new footage overwrites old footage. So, to prevent loss of footage in cases like this, they seize it, put it in a property bag, lodge it and look at it at a later date. He also testified that it is not unusual to receive dashcam evidence from another officer.
[19] Officer Mooney testified that this protocol was followed in this case. Sargeant Makin seized the items, turned them over to Officer Mooney, stated the turn-over time and who seized them. In this case Sargeant Makin stated to Officer Mooney that he seized the items. Officer Mooney said he then maintained custody of the items, but them in a property bag and lodged the bag by putting it into a secure locker with a property tag number that was generated by Report Services. He said he put the bag in Property just before midnight on the day of the incident before he left duty.
[20] Officer Mooney said he took it out of Property the next day, attempted to look at its contents by putting the video card into a card reader at his office in the slot it fit into. During cross examination, he said that the card reader asked if he wanted to open the drive, at which point he clicked that and found it to be empty. He made further inquiries to see if files could be recovered but was told that if no files were showing, none could be recovered. He had prior situations where files were present but could not be opened, but this was not the case here. He said this was standard practice for reading USBs and similar to how he had done this in other investigations. Officer Mooney found no files on the card. He said there should normally be a list of files that he could click. In this case, there was nothing and no prompts from the computer indicating that something was wrong with the USB. There were zero Megabytes of storage on the card.
[21] Finding nothing to view, Officer Mooney put the items back into Property, and returned the items to Mr. Ratnasabapathy three days later on March 20th. He testified that he told Mr. Ratnasabapathy that he could not get any files off the memory card. He further testified that 7 days after that on March 27th, Mr. Ratnasabapathy told Officer Mooney that he (Mr. Ratnasabapathy) had taken his camera and memory card to a private company to see if they could recover any files.
[22] Officer Mooney confirmed in his testimony that he had no reason to believe that he or any other involved officer had done anything to cause any loss of evidence and that if he thought there were files that could be recovered, he would have taken it to the video evidence unit to try to recover the files.
[23] Under cross examination, Officer Mooney said that he didn’t look closely at the items for damage and that the video card was functioning properly in the card reader. He said that damage need not by physical.
[24] The Defence chose not to subpoena or call Sargeant Makin, who they had evidence to believe removed the dashcam and video card from the vehicle, to testify on the lost evidence application despite numerous reminders from the Crown and the Court to subpoena any witnesses they might want on this application within enough time for them to make arrangements to attend. There was, therefore, no evidence before me to suggest that it was negligently removed or handled by the officer who removed it. The only evidence I have is evidence that Officer Mooney seemed to have properly handled, stored and attempted to view it.
[25] There was some evidence provided by Officer Mooney that Mr. Ratnasabapathy took the dashcam to a company to try to retrieve footage. However, the Defence did not call any evidence about any attempts they made to retrieve the data themselves using their own expert, who might have been able to talk about whether it was corrupted and if so, how this happened. This, notwithstanding that the dashcam and its video card was in the possession of the Defendant for 5 years since the charge was laid. Related to this, it was never made clear why the first mention of this “lost” dash-cam evidence being an issue was not raised with the Crown until 2 months before the start of the most recent of the many trial dates set during the 5-year-long history of this matter. I find it difficult to believe that this was the earliest opportunity to raise and try to address this issue. This delay was never explained.
[26] The defence also called no evidence to help the court understand where the dashcam was positioned, what it should have been filming, whether it was turned on at the time of the incident, whether it was ever turned on, whether there was any reason to believe it was working at the time of the incident or ever, whether anyone had before the incident successfully viewed footage from it, or how it functions in general.
[27] There were some submissions made by the Defence in their factum that “the Applicant dash-cam was in good and proper working order. The dash-cam was at all matreal [sic] time turnd [sic] on and recording the road way [sic]”. This submission was echoed in closing submissions by Mr. Rowe. I cannot, of course, accept any of this as evidence as it was commentary provided by Mr. Rowe, not testimony provided by a relevant witness.
[28] Mr. Rowe submitted in the Defence factum that Officers removed the dashcam and SD memory Card that stored all the recordings and exposed it to harsh conditions. It was never explained what “harsh conditions” meant. All evidence adduced at trial seemed to indicate that it was a clear and sunny day when this all happened.
[29] The Defence also conceded that it was just as possible any footage the dashcam might have captured would have convicted Mr. Ratnasabapathy, as it would have cleared him or provided no helpful evidence at all. As we know from R. v. Janeiro, supra, the test is not whether the dashcam footage might have assisted the Defence, or even that there is a reasonable possibility that it might have assisted. Unlike the situation in that case, where officers actually viewed the video before it was lost and confirmed it showed the robbery, here we do not know what the video, if it ever existed, would have shown or what vantage point it was poised to film.
[30] The Defence argued that the footage could have settled the matter and demonstrated collusion, lying and confusion among the civilian witnesses. I find this last submission to be highly speculative, particularly since the defence had the opportunity to cross-examine these witnesses and put all of these issues to them during trial in the context of my witness exclusion order, and most of the witnesses were unknown to one another.
[31] Mr. Rowe also conceded in submissions that the footage could have “convicted” or “exonerated” his client. He said it could have “identified” his client and was the best evidence available. Again, I find this to be speculative since the witnesses all provided identity evidence and there was no evidence presented to suggest there was any footage available to be viewed.
[32] The Defence presented the case of R. v. Bero, 137 O.A.C. 336, 151 C.C.C. (3d) 545 (Ont. C.A.), where a vehicle seized during an investigation was later destroyed because the company the police contracted to hold the vehicle was only obliged to keep the vehicle for 30 days. The police only discovered it was destroyed by the company after defence asked that it be preserved. That is not the case here where police removed the dashcam and video card during their initial investigation of the scene, immediately put them into a property bag, labelled it, lodged it in a secure property locker and then retrieved it, as per their protocol to attempt to view its contents using their usual procedures. The lead Officer, being unable to do see any contents on it, promptly returned it to the Defendant. I have heard nothing to suggest the police handling or attempts to view the contents of the evidence in this case were negligent or even unreasonable. They seemed quite responsible from the evidence presented. I heard nothing from the Officer who actually removed the dashcam and video card from the Defendant’s vehicle because the Defence chose not to call him as a witness.
[33] In R. v. Janeiro, supra, the court dealt with a situation where the video footage was viewed by police and confirmed to have captured the offence before it was lost during the course of storing it inappropriately in a brown bag mixed with other evidence in an unlocked unsecure drawer accessible to many people. This is also not the case here.
[34] The burden to prove the Charter breach is on the Applicant. I have not received any evidence during the course of hearing this application or even during the evidence collected at trial that any dashcam footage existed. I have also not heard any evidence that if it did exist, that it was lost or destroyed by the police through negligence of any kind. All the evidence I have heard strongly persuades me that police actions were not negligent in this case and were in line with protocols that seemed reasonable in the circumstances.
[35] The test set out in R. v. La and reiterated in R. v. Janeiro has not been met. I find that the Defendant’s right to a fair trial and to make full answer and defence has not been compromised and there was no breach of the Defendant’s rights under s. 7 or s.11(d) of the Charter.
Released: September 3, 2024 Signed: Justice of the Peace Natalia Krayzman