COURT FILE NO.: 11-10000153-00AP

DATE: 20121119

SUPERIOR COURT OF JUSTICE - ONTARIO

RE: R. v. Victor Mansingani

BEFORE: M.A. Code J.

COUNSEL: Fredrick Schumann, for the Appellant

Jason Gorda, for the Crown/Respondent

HEARD: November 15, 2012

ENDORSEMENT

[ 1 ] The Appellant Victor Mansingani (hereinafter, Mansingani) was charged in a single count Information with the offence commonly known as “over 80”, contrary to s. 253(1) (b) of the Criminal Code . The Crown proceeded summarily before Boivin J.

[ 2 ] The trial took place on September 13, 2011. It was extremely brief. The Crown’s case was read in and admitted. It disclosed that Mansingani had been stopped by the police for speeding on Highway 400, in the north end of Toronto, at approximately 1:40 a.m. The officer detected a “strong odour of an alcoholic beverage on the accused’s breath”. A roadside screening test registered a “fail reading” at approximately 1:57 a.m. Mansingani was arrested at this point and taken to a nearby police detachment. After speaking to duty counsel, Mansingani provided breath samples into an Intoxilyzer. The test results were 128, at 3:06 a.m. and 109 at 3:34 a.m.

[ 3 ] All these facts were admitted and the technician’s certificate was filed as an exhibit on consent. The entire trial lasted about five minutes. It was agreed that the admitted facts made out the offence charged.

[ 4 ] The only issue in dispute was a s. 7 and s. 24(1) Charter of Rights Motion brought by the defence. A Notice of Application had been filed by trial counsel. However, there was no evidence filed in support. Instead, counsel asked the Crown to call the qualified technician, Officer Michael Di Pasquale, who had administered the Intoxilyzer tests to Mansingani. The Crown called the officer and defence counsel cross-examined him. That cross-examination is set out in two pages of transcript. It included a playing of the videotape of the Intoxilyzer tests, which was then made an exhibit. In the result, the only evidence on the s. 7 Charter Motion was this very brief testimony from one police officer, who had nine years experience, as well as the videotape of the Intoxilyzer tests. I should note that Mr. Schumann was not trial counsel.

[ 5 ] The s. 7 violation, alleged on the Motion, is that the police deliberately failed to videotape the initial “quality assurance checks” of the Intoxilyzer that night, as well as the operation of the Intoxilyzer during the two tests. Instead, the videotape frame was focused solely on the accused Mansingani who was seated to the left of the Intoxilyzer. As a result, it captured only a small portion of the Intoxilyzer machine’s left side and an equally small portion of the operator’s left side. If the camera angle had been moved farther to the right, it can be inferred that the video frame would have captured more of the front of the Intoxilyzer and more of the operator who was seated at the machine. It is submitted that a more fullsome videotaping of the test processes might have assisted the defence and that a deliberate decision not to do so violated s. 7 of the Charter . The remedy sought is a stay of proceedings pursuant to s. 24(1) of the Charter .

[ 6 ] The trial judge dismissed the Charter Motion, convicted the accused, and sentenced him to the minimum mandatory $1,000 fine and twelve month license suspension. Mansingani appeals his conviction and submits that the trial judge erred in dismissing the s. 7 Motion and in declining to enter a stay of proceedings pursuant to s. 24(1) of the Charter . I reserved judgment at the end of the appeal.

[ 7 ] The difficulty with this appeal, in spite of Mr. Schumann’s able argument, is the adequacy of the evidentiary record on the Charter Motion. It is settled law that Charter applications require a proper factual record and that they cannot be argued in a vacuum. See: MacKay v. Manitoba , 1989 26 (SCC) , [1989] 2 S.C.R. 357; Danson v. Ontario , 1990 93 (SCC) , [1990] 2 S.C.R. 1086. In the case at bar, the evidentiary record on the s. 7 Motion established nothing more than the following:

• Officer Di Pasquale was a qualified Intoxilyzer technician;

• He conducted three “quality assurance checks” of the machine, before Mansingani had entered the room. He referred to these as a “diagnostic check”, a “calibration check”, and a “self-breath test”. He was not asked to explain these “checks” or to describe what a videotape of the outside of the machine would reveal about them;

• Mansingani then entered the breath technician’s room and Officer Di Pasqualie “turned on the video equipment”. As noted above, the camera angle was directed at the chair where Mansingani was seated, at the left side of the Intoxilyzer, and the video frame captured only a small part of the Intoxilyzer itself and of the operator who was seated in front of it;

• Officer Di Pasquale, himself, had nothing to do with setting the camera angle. He simply came to the detachment, the camera was already set up in the breath technician’s room, and he turned it on once the accused was seated in the chair beside the Intoxilyzer. This appeared to be his standard practise when he attended at any detachment, although this was never clarified. He testified that he “could have” changed the camera angle but that he “wouldn’t”. He was not asked why he “wouldn’t” change the angle;

• Officer Di Pasquale did not have a monitor turned on, to see exactly where the camera was focused, but he assumed that “the camera is pointed at the subject”. He was not asked why he made this assumption or whether this is the normal or invariable camera angle in police stations where he attends;

• Part of the operation of the Intoxilyzer is visible on the videotape, in particular, Mansingani can be seen taking the tube in his hand, placing it in his mouth, and blowing into it. Officer Di Pasquale was not asked what would be revealed by a videotape of the outside of the front part of the Intoxilyzer during the tests.

[ 8 ] What is missing from the above evidentiary record, at a minimum, is the following:

• Any evidence about the nature of the three “quality assurance checks”, conducted before the videotape was ever turned on, and whether videotaping of those checks would reveal anything of potential use to the defence;

• Any evidence about the operation of the Intoxilyzer and whether videotaping of the entire front of the machine and of the operator, during the tests, would reveal anything of potential use to the defence. In particular, it would be helpful to know whether any operational or maintenance failures or mistakes would be visible on the exterior of the machine or whether they are entirely internal to the machine;

• Any evidence about the history of videotaping in breath technician rooms in Ontario, or in other jurisdictions, and why and when it was instituted;

• Any evidence about why the camera was focused on the accused Mansingani in this case, whether this is invariably the practice in Ontario or whether some police stations also focus on the front of the machine and its operator, and whether other jurisdictions do it differently;

• Whether there are practical or principled reasons for not tape recording the “quality assurance checks”, and for not tape recording the front of the machine and its operator during the tests and, if not, whether the failure to do so is simply because no one has ever suggested it should be done or because of a deliberate decision to be unhelpful to the defence in these kinds of cases;

• Whether other forensic tools exist, to assist the defence in challenging the Intoxilyzer test results, such as requesting the maintenance records and test records for the machine, and whether these records are more helpful than what would likely be revealed by videotaping the operation of the machine.

[ 9 ] None of the above questions were ever asked of Officer Di Pasquale, no expert was called who could provide evidence on any of these points, and no writings or studies on the subject were tendered. In short, there was an entirely inadequate evidentiary foundation for the Charter issue that had been raised.

[ 10 ] Given the inadequacy of the factual record, as summarized above, the s. 7 Motion could not possibly succeed. I am advised that there is no decided case where this argument has ever been made before. In other words, it was a novel Charter Motion. As a result, the relevant authorities are not directly on point but only assist by analogy.

[ 11 ] The leading authorities, concerning videotaping in drinking and driving cases, are R. v. Piko (2000), 6 M.V.R. (4 th ) 117 (Ont. S.C.J.) and R. v. Khan (2010), 2010 ONSC 3818 , 97 M.V.R. (5 th ) 35 (Ont. S.C.J.). In the former case, the video-taping equipment in the breath technician’s room had broken down. In the latter case, the particular police detachment had run out of videotapes. As a result, there was no video-taping at all in these cases. It was submitted that the failure to videotape violated the s. 7 rights of the accused. In the more recent of the two cases, R. v. Khan , supra at paras. 13-16 , MacDonnell J. thoroughly reviewed the relevant authorities and stated:

The Crown’s disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. For example, both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that the police record, videotape, or audiotape custodial interrogations: R. v. Moore-McFarlane (2001), 2001 6363 (ON CA) , 160 C.C.C. (3d) 493, at paragraph 61-65 (Ont. C.A.); R. v. Oickle (2000), 2000 SCC 38 , 147 C.C.C. (3d) 321, at paragraph 46 (S.C.C.). Consistent with those authorities, the law in Ontario is clear that the police are not obliged to make a videotape of the breath testing process. In the leading case of R. v. Piko (2000), 6 M.V.R. (4 th ) 117 (Ont. Sup. Ct.) , the video equipment in the breath room had broken down about ten days before the appellant was charged with failing to provide a sample of breath. The trial judge rejected the argument that the failure to videotape what occurred in the breath room breached the appellant’s rights under ss. 7 and (11)(d) of the Charter . On appeal, Durno J., [2000] O.J. No. 3605 , affirmed the decision of the trial judge:

This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the appellant’s condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there was no Charter breach.

In R. v. Brownlee (2008), 70 M.V.R. (5 th ) 61 (Ont. Sup. Ct.) , Fedak J. adopted the reasoning in Piko . In affirming the trial judge’s conclusion that the failure to videotape the proceedings in a breath room did not constitute a violation of the Charter , he stated:

[T]he lack of videotape of the appellant’s conduct in the breath room did not deprive him of a fair trial … [T]he learned trial judge did not err in following the decision of Justice Durno in R. v. Piko …[T]here is no constitutional right or right at common law that the appellant have his breath room evidence preserved by videotaping … [C]ases where videotape evidence was lost or destroyed are distinguished from the case at bar. …

As Durno J. noted in Piko , supra , the absence of a constitutional obligation to videotape proceedings in a breath room does not mean that a failure to do so can never lead to an infringement of the Charter . He suggested, for example, that the result in that case might have been different if the police had video facilities available but deliberately declined to make use of them. In the case at bar, the trial judge made the same point. However, there was no suggestion that Constable Watts deliberately failed to record the breath testing process. It was not recorded only because when Watts got to the detachment he discovered that the supply of videotapes had been exhausted. As the trial judge found, there was no evidence of bad faith .

A failure to videotape the proceedings in a breath room might also constitute a violation of the Charter if, in particular circumstances of a case, it rendered the trial unfair. No such circumstances were present here. As the trial judge noted, there was sufficient evidence from the police and the appellant for him to make the relevant determinations. [Emphasis added].

[ 12 ] Piko and Khan involved a complete failure to video-tape any of the breath test processes whereas the case at bar involved only a partial failure to record some of the processes. Nevertheless, Mr. Schumann relies on the under-lined passages set out above. He submits that the Court can and should infer that the police made a bad faith or deliberate decision not to tape record the only part of the breath test processes that might help the accused in an “over 80” case.

[ 13 ] Mr. Schumann also relies on the “lost evidence” cases, like R. v. Carosella (1997), 1997 402 (SCC) , 112 C.C.C. (3d) 289 (S.C.C.), R. v. Vu and La (1997), 1997 309 (SCC) , 116 C.C.C. (3d) 97 (S.C.C.), and R. v. Bero (2000), 2000 16956 (ON CA) , 151 C.C.C. (3d) 545 (Ont. C.A.). While acknowledging limitations in the analogy between “lost evidence” that actually existed, and a failure to tape record as in the case at bar, Mr. Schumann relies on the principle set out in cases like Vu and Bero to the effect that deliberate destruction of evidence is an abuse of process. In R. v. Vu and La , supra at para. 22 , Sopinka J. stated the following (speaking on behalf of an apparently unanimous Court on this point):

The deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown’s obligation to disclose the material will, typically, fall into this category [of abuse of process]. An abuse of process, however, is not limited to conduct of officers of the Crown which proceeds from an improper motive … In some cases an unacceptable degree of negligent conduct may suffice.

[ 14 ] In minority reasons concurring in the result, L’Heureux-Dubé J. appeared to agree with this part of the majority’s reasons concerning s. 7 and the abuse of process doctrine. See: R. v. Vu and La , supra at paras. 35, 57 and 65 . In R. v. Bero , supra at paras. 38-94 , the Court applied the above principles and found a s. 7 violation on the basis of abuse of process in a case where the police had failed to preserve relevant real evidence (the motor vehicle in a case of impaired driving causing bodily harm). Doherty J.A., speaking on behalf of the Court, stated the following:

… the failure to preserve the vehicle was caused by the failure to look beyond the needs of the prosecution to the wider question of the potential relevance of the vehicle to the defence. Had anyone directed their mind to the disclosure obligations set out in Stinchcombe , I think the vehicle would have been preserved. The failure to preserve the vehicle reveals an ignorance of, or at least an indifference to, the duty on the Crown and the police to preserve the fruits of their investigation … it constitutes an abuse of process.

[ 15 ] The above line of authority concerning “lost evidence” also sets out varying degrees of prejudice that must be shown, depending on the nature of the s. 7 violation and, in particular, whether it was deliberate or merely negligent. At the s. 24(1) remedies stage of analysis, the distinction between deliberate s. 7 violations and merely negligent s. 7 violations, as well as the degree of prejudice suffered, will be important in determing whether a stay is the appropriate remedy. Once again, Doherty J.A. made this point in R. v. Bero , supra at paras. 44, 48 and 55 :

The integrity of the judicial process will generally be put at risk where the conduct of the state involves a deliberate attempt to compromise an accused’s ability to make full answer and defence, otherwise undermines the fairness of the trial process or deliberately frustrates the court’s ability to reach a proper verdict: R. v. Carosella (1997), 1997 402 (SCC) , 112 C.C.C. (3d) 289 (S.C.C.) at 310-312.

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

The appellant was denied access to evidence which had a realistic possibility of assisting his defence. That evidence could also have destroyed his defence or it could have been of no assistance to him. When that prejudice is considered along with the measures that could have been taken to alleviate the prejudice, I conclude that this is not one of those rare cases where a stay of proceedings was an appropriate remedy.

[ 16 ] In addition to the above two lines of authority, Mr. Schumann relies on the recent amendments to s. 258 of the Criminal Code which enact an irrebuttable presumption of accuracy concerning breath test results, absent evidence that “the approved instrument was malfunctioning or was operated improperly”. In two recent decisions, the Supreme Court of Canada has held that there is a real possibility of breath test instruments malfunctioning or being operated improperly and that the above statutory provision violates the presumption of innocence guaranteed by s. 11(d) of the Charter . The Court went on to hold that the provision was a s. 1 reasonable limit on s. 11(d) rights. Mr. Schumann submits that a videotape of the three “quality assurance checks”, and of the operation of the machine during the tests, might assist the defence in rebutting the constitutionally fragile presumption of accuracy found in s. 258. See: R. v. Lamoureux 2012 SCC 57 ; R. v. Dinely 2012 SCC 58 .

[ 17 ] The above analogies to cases dealing with a complete failure to videotape any of the breath test processes, and to cases dealing with “lost evidence”, may or may not succeed in the end. I am simply in no position to decide the relevant issues based on the existing factual record. Whether the police decision, concerning changing or not changing the angle of the camera, was deliberate, negligent, pragmatic or principled, is simply a matter of speculation on this record. Indeed, there may have been no decision at all as no one may ever have suggested that the police should change or not change the angle. Furthermore, the degree of prejudice caused to the defence by this decision or non-decision is equally speculative. It may have caused no prejudice, some slight or possible prejudice that is remediable through other forensic tools, or significant prejudice. There is simply no evidence about what the requested form of videotaping would show and whether it would help.

[ 18 ] In short, this argument needs to await a proper factual record. The trial judge made no error in dismissing the Charter Motion. The appeal from conviction is dismissed.

M.A. Code J.

Date: November 19, 2012