SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 10-2767
DATE: 2012-07-03

RE: R. v. GENNY HESS and NADIA HESS

BEFORE: The Honourable Robert B. Reid

COUNSEL:
J. McKenzie, Counsel, for the Crown
M. Wendl, Counsel, for Genny Hess
M. Puskas, Counsel, for Nadia Hess

HEARD: May 30, 31 and June 19, 2012

ENDORSEMENT

Introduction:

[ 1 ] The two accused are charged with aggravated assault arising from an altercation in a tavern in the early morning hours of October 5, 2009. They brought an application for a judicial stay of the charge pursuant to section 24(1) of the Canadian Charter of Rights and Freedoms . The accused allege that as a result of a negligent investigation by the police, their ability to make full answer and defence has been impaired with a resulting violation of section 7 of the Charter. They submit that the only appropriate remedy in the circumstances of this case is a stay of proceedings.

[ 2 ] The issues are:

a. Was there a negligent police investigation?

b. If so, did it impair the ability of the accused to make full answer and defence?

c. If so, is a stay the appropriate remedy?

[ 3 ] Evidence and submissions were heard on May 30 and 31 in advance of the trial which was scheduled to begin on June 11, 2012. At that time, I reserved my decision until the conclusion of evidence at trial in order to be in a better position to consider how the impugned police conduct related to any defence that might be raised. As well, I agreed to allow additional submissions at that time so that any additional facts elicited during the trial could be brought to my attention.

[ 4 ] For the reasons set out below, and as I advised the parties in court on June 11, the application is dismissed.

Was There a Negligent Police Investigation?

[ 5 ] The accused raise three distinct areas of concern, which I will review in order. They allege a failure by the police:

• to ascertain the identities of potential independent witnesses by attending at the tavern promptly following the event;

• to properly record and analyze blood and blood trails; and

• to secure and preserve available surveillance video from the tavern.

Identification of Witnesses:

[ 6 ] The requirement to record the names of relevant witnesses to a crime is acknowledged to be part of standard police investigative procedure. In this case, no relevant witnesses were found, apart from the alleged victim and her companion.

[ 7 ] In their initial attendance at the scene, the police officers made modest efforts to identify potential witnesses. Constable Duench and Constable Crichton were dispatched to the tavern at 12:39 AM in response to a reported assault. On arrival, they observed some patrons outside the tavern. The officers asked the group if anyone had information about the occurrence. Nothing was volunteered. They attempted to question a highly agitated and intoxicated female who turned out to be a relative of the two accused but were not able to get any useful information from her. More officers arrived but did not receive helpful evidence from witnesses. None of the officers entered the tavern.

[ 8 ] I find no fault with the police investigation during its early stages. At the time of the initial attendance, the only information received by the police was from the 911 call made by the accused Genny Hess from her home. She told the operator that she had been “bottled” at the tavern and requested police attendance there to keep the peace. The police observed no signs of a problem outside the tavern requiring their involvement.

[ 9 ] Shortly thereafter, at about 12:50 AM, the officers were redeployed from the tavern in response to a priority call for help from a nearby paramedic unit. The paramedics had responded to the 911 call and were administering medical aid to the accused, Genny Hess outside her home. The officers observed bruising on her face, blood in her hair and a cut below her chin. Genny Hess specifically requested that police not be involved further in the matter. At that time, she was the only person known to have been injured at the tavern.

[ 10 ] Once it was established that there was no on-going concern for the safety of the paramedics, most of the officers dispersed to other duties. It is understandable that none of them returned to the tavern, since the only known victim had requested them not to become involved further.

[ 11 ] At about 1:55 AM, Constable Duench and Constable Crichton were directed to a hospital where Gail Brown had been admitted with serious injuries to her head, hands and arms, apparently as a result of the same tavern incident. The evidence disclosed that Ms. Brown did not go directly to the hospital following the incident, hence the delay of over an hour between the 911 call and the 1:55 AM dispatch to the hospital. The officers interviewed Ms. Brown, then left the hospital at about 2:30 AM and returned to their detachment to complete their notes and end their shift. Before they did, however, they had a discussion with Constable Leonard at the hospital. She determined that more investigation was needed and attended at the tavern together with K-9 officer Constable Donn as backup.

[ 12 ] By the time the officers arrived at the tavern, it was past “last call” and there were only a few people inside and outside. None volunteered any helpful information. The bartender denied any knowledge of the incident.

[ 13 ] I find no fault with the actions of the officers in deciding to return to the tavern and attempting to seek witnesses only after it became apparent that there was another injured party, namely Gail Brown, in addition to Genny Hess. It was at that point that there appeared to be a victim other than the uncooperative Genny Hess, with more significant injuries. It is not surprising that no willing witnesses were identified some two hours after the incident occurred, but the time lapse was understandable in the circumstances. In hindsight, it would have been helpful if officers had initially entered the tavern and inquired about possible witnesses in response to the original 911 call. It would also have been helpful if the seriousness of Gail Brown's injuries and her connection with the incident had been established sooner and officers had been dispatched to the tavern accordingly. However, in my view the police were not negligent in proceeding as they did.

Recording and Analysing Blood and Blood Trails:

[ 14 ] It is normal for police to seek out and preserve evidence such as blood spatters and blood trails as part of an investigation. Based on the information from and observation of both Genny Hess and later Gail Brown, the presence of blood and perhaps broken beers bottles at and around the scene at the tavern would not have been surprising.

[ 15 ] It not clear that any relevant evidence would have been found inside, even if the police had reviewed the interior on their first arrival. Gail Brown testified that members of the tavern staff were already cleaning up the dance floor before she left the building immediately after the incident. However, as noted above, the police did not enter the tavern when they first arrived. Based on the information they had at the time and the more urgent call to help the paramedics, their actions are understandable and do not amount to negligence.

[ 16 ] When Constable Leonard and Constable Donn arrived at the tavern about 2:30 AM from the hospital, they did not find any physical evidence inside, but did notice two separate blood trails leading in different directions away from the premises. The two officers conducted an article search assisted by a police dog as they followed the trails. One led to the home of Genny Hess where the paramedics had treated her. The other led in a different direction for several blocks and stopped, consistent with the evidence from Gail Brown and her friend that they walked away from the tavern and were picked up in a car at the point where the second blood trail ended. No weapons or other articles were found. No pooling or spattering of blood was noted by the officers. They observed an intermittent series of droplets, and recorded their efforts and observations in their notebooks.

[ 17 ] No forensic or identification officers attended to photograph or otherwise preserve or record the blood trails. Those specialized officers are available when required. Constable Leonard asked the supervising sergeant about deploying specialized officers. She recalled him responding that he did not consider assistance necessary on this occasion, because the identity of the injured parties and their whereabouts was known. In addition, there was no “scene” to be preserved. This was a judgment call on his part. Giving consideration to the potential need for additional expertise, as Constable Leonard did, and the making of a judgment call by her supervisor is certainly not an indication of negligence.

Surveillance Video:

[ 18 ] Video surveillance evidence could well be relevant to the case. There were eight separate video cameras operating at the tavern, showing areas inside and outside the premises. None of the eight cameras were focused on the dance floor where the main assault is alleged to have occurred. Therefore it is unlikely that there would have been useful evidence as to the beginning of the event when the most serious injuries were apparently caused. However, it is likely that the subsequent conduct of the accused and the alleged victim would have been recorded, both inside and outside the tavern.

[ 19 ] As noted above, at about 2:30 AM on October 5, Constable Leonard and Constable Donn came to the tavern from the hospital where they had observed the injuries to Gail Brown. A request was made for surveillance video and the bartender undertook that it would be provided after 4:00 PM that day by the manager who had access to the equipment.

[ 20 ] Detective Page attempted to pick up the video on October 7, when he was next on duty following the event, but was advised it was not yet available. Sometime later, another officer secured the video and provided it to Detective Page, who recalled it being in his possession on October 13. He viewed it soon thereafter.

[ 21 ] The video excerpts from the eight cameras all showed time periods after the occurrence. No useful evidence of the occurrence was recorded. Tavern management was requested to provide better information, but by then the recordings had been taped over. As a result, no video evidence of the scene at the relevant time was available.

[ 22 ] This is not a situation where evidence was in police custody and subsequently lost or destroyed. In such a case, the duty of the police to make full disclosure is compromised, since subsumed in the duty to disclose is a duty to preserve.

[ 23 ] In my view, the police acted reasonably. They attempted to secure the relevant video evidence. Tavern management led the police to believe that they were co-operating with the police request. Officers re-attended and eventually were provided with material. The delay in providing the excerpts was not an obvious sign of non-cooperation which might have required a different response. There was no reason to expect that the excerpts provided would not be relevant.

[ 24 ] As a result, I find that there was no negligent investigation in failing to secure the video surveillance evidence in a more timely way.

[ 25 ] Since I have concluded that there was no negligence in the police investigation, it is unnecessary for me to consider whether the police actions impaired the right of the accused to make full answer and defence and whether a stay of proceedings is the appropriate remedy.

[ 26 ] The application is dismissed.

Reid J.

Date: July 3, 2012