SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: CR-12-70000132-00AP

DATE: 20140303

RE: R. v. Abdifarhan Hassan

BEFORE: M.A. Code J.

COUNSEL:
Princeton Ojiegbe, for the Appellant

Lori Hamilton, for the Respondent

HEARD: February 14, 2014

ENDORSEMENT

[1] The Appellant Hassan was charged with impaired driving and dangerous driving, contrary to the Criminal Code, and with “stunt driving” contrary to the Highway Traffic Act (driving 50 km per hour or more over the speed limit). The Crown proceeded summarily at a trial before Bhabha J. in the Ontario Court of Justice.

[2] After a two day trial, Bhabha J. reserved judgment. On August 22, 2012, the Appellant was convicted of the two Criminal Code offences and was acquitted of the Highway Traffic Act offence. On September 19, 2012, the Appellant was sentenced to sixty days imprisonment less ten days credit for pre-trial custody, to eighteen months probation on various conditions, and to an eighteen month driving prohibition.

[3] The appeal to this court is against conviction only. No grounds of appeal have been raised in relation to the merits of the case, that is, Bhabha J.’s findings concerning impaired driving and dangerous driving are not challenged. The only alleged error concerns the correctness of the trial judge’s ruling that a s. 7 Charter of Rights Application should be dismissed. The Charter issue concerned the failure of the police to preserve the vehicle that the Appellant had driven on the night in question.

[4] The trial on the merits and the Charter Application were conducted as a single blended proceeding. The Crown called its police witnesses concerning the merits of the case and the defence cross-examined the officers concerning the s. 7 Charter issues. In addition, there were certain agreed facts. There was no evidence called by the Appellant, relating to either the merits or the Charter Application, aside from the agreed facts.

[5] The merits of the case were relatively straight forward. In brief summary, the Appellant was a truck driver working for a company known as Chase Transportation. On the night of May 4/5, 2010, at approximately 2:45 a.m., he was driving a large eighteen wheel tractor trailer on St. Clair Avenue in a densely populated part of mid-town Toronto. The speed limit is 50 km per hour and there was little traffic. The Appellant swerved his truck in order to pass an off duty police officer who was driving home on St. Clair Avenue. The officer was travelling at 80 km per hour so the Appellant’s truck was travelling in excess of that speed. The trial judge found that the Appellant’s speed was “likely over 100 kms per hour” but, given that the off duty officer could only estimate the speed, Bhabha J. acquitted the Appellant of “stunt driving”.

[6] The off-duty officer followed the Appellant’s speeding truck as it went through a red light and turned off St. Clair Avenue and onto a residential street. The truck tipped over on its side, knocked over a hydro pole, and came to a stop in front of some houses. The off-duty officer observed the Appellant emerging from the cabin of the truck. No one else was in the truck. The Appellant was staggering on his feet and smelled strongly of alcohol. When other officers arrived at the scene of the accident, they too made similar observations. In addition, the Appellant’s speech was slurred.

[7] The trial judge found that impairment had been proved on the basis of “the odour of alcohol, your inability to stand on your own without assistance, your difficulty with motor skills, putting on your shoes, your speech, all speak to impairment”. The trial judge found that dangerous driving had been proved on the basis of “the manner of your driving, the running a red light, the speed, the lane changes, given the nature and size of the vehicle you were driving – an eighteen wheeler – driving that eighteen wheeler into a residential neighbourhood”. As noted previously, none of these findings are challenged on appeal. The trial judge did not rely on the accident itself, or make any findings as to the cause of the accident, as indicia of impaired driving or dangerous driving.

[8] I will set out the facts relating to the s. 7 Charter Application below, when discussing the merits of the one ground of appeal. In essence, the defence submitted that the police should have preserved the truck so that it could have been tested in order to determine whether defective brakes or steering were contributing causes of the accident.

[9] A s. 7 Charter Application that rests on an allegation of “lost evidence”, as in the case at bar, is one of the more analytically complex species of Charter litigation. That is because the case law has recognized three distinctly different kinds of Charter breaches in this context:

• First, a violation of the right to disclosure can be alleged. This involves two separate issues: whether the lost evidence was relevant, in the Stinchcombe sense of not being “clearly irrelevant”, and should therefore have been preserved; and whether this relevant and disclosable evidence was lost due to “unacceptable negligence”;

• Second, it can be alleged that the evidence was lost due to an “abuse of process”. This may involve deliberate destruction of evidence, where state actors intend to frustrate the administration of justice, but can also include a high degree of negligence by state actors;

• Third, a violation of the right to a fair trial can be alleged. Even where unacceptable negligence or abusive conduct by state actors cannot be established under the first two forms of s. 7 breach, the loss of some particularly important piece of evidence may cause sufficiently serious prejudice to fair trial interests that it amounts to a s. 7 breach.

See: 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.); R. v. Bero (2000), 2000 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Knox (2006), 2006 16479 (ON CA), 209 C.C.C. (3d) 76 (Ont. C.A.).

[10] The above three kinds of s. 7 breach differ significantly because the first two involve some degree of fault analysis, at the s. 7 violation stage, with less emphasis on the importance of the lost evidence or on any prejudice to the result at trial until the s. 24(1) remedies stage of analysis is reached. The third kind of breach, conversely, focuses on the importance of the evidence and on prejudice, at both the violation stage and at the remedies stage, and does not depend on any kind of fault. The three kinds of s. 7 breach also differ in terms of the burden of proof as a failure to preserve relevant evidence, in relation to the right to disclosure, shifts the burden to the Crown to prove an absence of “unacceptable negligence”. The other two forms of s. 7 breach place the burden on the defence throughout. The degree of prejudice to the administration of justice or to the result at trial is a highly relevant consideration at the s. 24(1) remedies stage, in the case of all three forms of s. 7 breach. In particular, a stay of proceedings is only appropriate in exceptional cases, where irremediable prejudice can be demonstrated and where lesser remedies will not suffice.

[11] In the case at bar, there was no allegation of abuse of process. The s. 7 Application was based on alleged breaches of the right to disclosure and the right to a fair trial, that is, the first and third forms of s. 7 violation summarized above. Furthermore, no remedy other than a stay of proceedings was sought at the s. 24(1) stage.

[12] In relation to the first form of s. 7 violation, that is, a breach of the right to disclosure, the trial judge found that “the first prong of the test is met” but that “it does not rise to the level of unacceptable negligence”. I agree with the trial judge. Testing of the truck for failure of the braking and steering systems was relevant, in the Stinchcombe sense, as it could provide some evidence as to potential contributing causes of the accident. It must be remembered that the “not … clearly irrelevant” Stinchcombe standard has been “set quite low” and that it “includes material which may have only marginal value to the ultimate issues at trial”. See: R. v. Dixon (1998) 1998 805 (SCC), 122 C.C.C. (3d) 1 at paras. 21 and 23 (S.C.C.).

[13] The trial judge’s conclusion, that there was no “unacceptable negligence” and, therefore, no breach of the s. 7 right to disclosure, was based on six considerations: first, there was no “objective evidence” at the time of the accident of any failure of the truck’s braking or steering systems; second, the Appellant’s statements to the police at the scene of the accident did not suggest that mechanical failure had caused or contributed to the accident; third, the degree or level of relevance of the truck’s mechanical systems, as an explanation for the accident, was “remote and speculative”; fourth, the size of this particular exhibit, namely, an eighteen wheel tractor trailer, made it “expedient and cost-effective to simply hand over custody or control of the vehicle to a towing company”; fifth, the owner of the truck was the Appellant’s employer and the owner received notice from the police that the towing company had custody of the truck; and sixth, the Appellant was represented by counsel who received timely notice, through Crown disclosure, that the police had not conducted any expert testing of the truck’s mechanical systems.

[14] In my view, all six of these considerations were relevant to the fault analysis that must be conducted on a s. 7 Charter Application concerning the issue of “unacceptable negligence” by state actors. The first three considerations are spelled out in the leading authorities. In R. v. Vu and La, supra at para. 21, Sopinka J. held that “the relevance that the evidence was perceived to have at the time” is a circumstance that “must be considered” and “as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police”. In R. v. Bero, supra at para. 36, Doherty J.A. held that the lost evidence in that case was “hardly peripheral” and in R. v. Knox, supra at para. 29, Laskin J.A. held that the lost evidence in that case was “highly relevant”. In both Bero and Knox, the Court of Appeal found s. 7 violations but declined to grant a stay of proceedings at the s. 24(1) remedies stage.

[15] I am satisfied that preservation of the truck for mechanical testing, on the facts of the present case, was on the outer fringes of Stinchcombe relevance. All of the known facts, at the time of the accident, pointed to speed and alcohol and bad driving as the obvious causes of the accident. There was no evidence called by the Appellant, either on the Charter Application or at trial, to suggest that mechanical failure had caused the accident. Even if there had been some mechanical failure, it would not have negatived alcohol as a contributing cause of the accident. Indeed, the trial judge ultimately placed no reliance on the accident itself as evidence of either impaired or dangerous driving. In these circumstances, the duty of care relating to a peripheral piece of evidence was quite low. I should make it clear that the Appellant’s failure to assert that some mechanical defect may have caused the accident, at the time of the police investigation, could not have been and was not used against him at trial as evidence of guilt. However, the Appellant was under a statutory duty to provide the police with “information concerning the accident” and with “particulars of the accident”. It was, therefore, a relevant consideration on the s. 7 Charter Application, when assessing how the police “perceived” the relevance of the truck’s mechanical systems “at the time”, that the Appellant had not told the police about any mechanical failure. See: R. v. Vu and La, supra at para. 21; R. v. White (1999), 1999 689 (SCC), 135 C.C.C. (3d)257 (S.C.C.); R. v. Soules (2011), 2011 ONCA 429, 273 C.C.C. (3d) 496 (Ont. C.A.); R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 at para. 69 (Ont. C.A.); Highway Traffic Act, R.S.O. 1990, c. H. 8, ss. 199(1) and (3).

[16] The last three of the six considerations relied on by the trial judge related to the steps taken by the police and the Crown, upon completion of the investigation. These facts were set out in the form of admissions and were as follows: on May 5, 2010, after completing their investigation, the police handed custody of the truck over to a towing company; the Motor Vehicle Accident Report provided the address where the towing company was storing the vehicle; s.217(5) of the Highway Traffic Act provides that the costs associated with seized and detained vehicles “may be enforced in the manner provided by the Repair and Storage Liens Act”, s. 4(1) of which provides that the storer of the vehicle can sell it “upon the expiration of the sixty day period” after the amount owing for “storage and repair becomes due”; accordingly, the earliest date on which the towing company could have sold the truck was July 5, 2010; on May 14, 2010, the Appellant was granted bail; he received disclosure in court on June 8, 2010; he then retained counsel, who “received disclosure [directly from the Appellant] in June of 2010”, and counsel then appeared in the Ontario Court of Justice on June 28, 2010 and filed a designation on behalf of the Appellant; about two months after receiving the Crown disclosure from the Appellant, on August 25, 2010, counsel wrote to the Crown and asked whether an expert had examined the tractor trailer’s various mechanical systems and asked for an opportunity to have a defence expert examine the truck; on November 19, 2010, the Crown responded and advised that Downtown Towing had custody of the truck and they advised that “the registered owner of the truck did not want to pay the storage fees and the insurance company would not pay because of the impaired charge so the truck became the property of Downtown Towing after sixty days and has been scrapped”.

[17] It therefore appeared that the Appellant’s employer, who owned the truck, had been given timely notice that it would be sold as scrap. There was no evidence called on the s. 7 Application as to the Appellant’s relationship with his employer or as to any communications between the Appellant and his employer, after he was released on bail on May 14, 2010. It also appeared that the Appellant and his counsel had notice as to where the truck was being stored and as to the absence of any mechanical testing, in the Crown disclosure received in early June 2010, some time before the truck was eventually sold as scrap. The trial judge expressed the view that “preferred practice” would be “to inform Mr. Hassan directly” of the status of the truck but that “Mr. Hassan was an employee” of the owner of the truck and “he certainly knew how to contact the owners if he wished to find out the status of the vehicle”. The trial judge also found that defence counsel took no steps for “at least one month prior to the presumed loss or destruction” of the truck.

[18] These were all reasonable findings of fact and they supported the trial judge’s conclusion that there was no “unacceptable negligence” either by the police, in the way that they gave custody of the truck to the towing company, or by the Crown in the way that they gave notice of the truck’s status to the Appellant, prior to its loss or destruction.

[19] The second form of s. 7 breach alleged, as noted above, was a violation of the right to a fair trial. This was a much more difficult s. 7 violation to establish as it depended on proof of actual prejudice to the result at trial. In both R. v. Bero, supra at paras. 49 and 51, and R. v. Knox, supra at para. 41, the Court of Appeal stressed that the results of forensic testing of the motor vehicles in those two cases was unknown. It may have helped the Crown, it may have helped the defence, or it may have been neutral. Furthermore, lesser remedies were available to attenuate any prejudice, namely, by letting the defence rely on the police failure to test the vehicle as a potential gap in the Crown’s ability to prove guilt beyond reasonable doubt.

[20] Given that the defence failed to prove irremediable prejudice in either Bero or in Knox, on far more favourable facts, there was no realistic prospect of establishing a breach of the right to a fair trial in this case. In particular, there was no evidence in the present case that mechanical failure was a cause of the accident and therefore, by inference, that expert analysis of the truck’s mechanical systems might help demonstrate such a failure. Furthermore, the only remedy sought by the defence was a stay of proceedings and the trial judge found, even if there was a s. 7 breach, that this was not one of the clearest of cases justifying a stay. Given the peripheral relevance of the evidence in this case, given that there was some lack of due diligence by defence counsel, and given the lack of proof of prejudice, I agree with the trial judge that a stay of proceedings would not have been appropriate. See: R. v. Bero, supra at paras. 42, 48 and 55; R. v. Knox, supra at paras. 32-4; R. v. Dixon, supra at paras. 35-39.

[21] For all these reasons, I am satisfied that the trial judge did not err in dismissing the s. 7 Charter Application. As this was the only ground of appeal against the two convictions entered at trial, the appeal is dismissed.

M.A. Code J.

Date: March 3, 2014