CITATION: R. v. Roberts, 2016 ONSC 2390
COURT FILE NO.: CR-15-10000428-0000
DATE: 20160408
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ELIJAH BUTTIGNOL ROBERTS
Defendant
Rebecca M. Edward, for the Crown
Luka Rados, for the Defendant
HEARD: March 9, 10, 14, 15, 16 and 17, 2016
RULINGS ON CHARTER APPLICATIONS FOR A STAY OF CHARGES OR EXCLUSION OF EVIDENCE
B. P. O’Marra, J.
BACKGROUND
[1] In the late evening of October 31 and into the early hours of November 1, 2014, members of the Toronto Police Service (TPS) were on scene at an apartment building in Toronto. They were investigating a stabbing that had occurred several hours earlier. One of the officers received information that there was an AK-47 rifle and a quantity of drugs in the trunk of a car parked in the underground garage. The information was that the vehicle belonged to the suspect in the stabbing who is the applicant on these motions. A short while later, officers went to the garage and found a car with obvious damage and the trunk open. A rifle was clearly visible, along with other items.
[2] The car had been broken into by Aaron Blustein who was a witness to the earlier stabbing. He testified that he received implied permission from a police officer to break into the car and leave the trunk open.
[3] The applicant applied under sections 7, 8, 11(d), 24(1) and 24(2) of the Charter to stay the charges related to the firearm or exclude the evidence obtained by the police. He submitted that the police encouraged Aaron Blustein to commit a crime in order to obviate the need for a search warrant on the car. He further submits that there was an active cover-up of the scheme by the police in the course of the investigation and in their evidence on these pre-trial motions.
[4] The applicant also sought a stay based on the failure of the police to preserve and disclose a security video that recorded the break-in to the car. That evidence is lost.
[5] On March 17, 2016, I dismissed the applications. These are my reasons.
OVERVIEW
[6] I have reached certain conclusions that are determinative of these applications. First, I find that Aaron Blustein may have honestly believed that he was being encouraged to break into the car and leave the trunk open for the police. However, I find that the police did not encourage him subtly or otherwise to do so. Aaron Blustein, in effect, heard what he wanted to hear and undertook an action that he believed was the right thing to do in order to protect himself and others from a clear and present danger. There were errors of omission in the course of the investigation and discrepancies in the evidence of the police. However, I do not find that there was an attempt to cover up any improper conduct by the police.
[7] I find that the police failed to take reasonable steps to preserve and disclose the security video. However, the degree of prejudice related to the loss of that evidence is not significant.
THE EVIDENCE
[8] In the early evening of October 31, 2014, the applicant was in a twelfth floor apartment on Bay Street. Also present were the tenant, Dinah Mitchell, as well as Dave Butler and Aaron Blustein. They had all been friends for a long time. Cocaine and marijuana were used by those present. An altercation arose and the applicant stabbed Dave Butler in the back. The applicant fled the scene after uttering death threats to Aaron Blustein and Dinah Mitchell. Aaron Blustein called 911. Ambulance and police responded. Dave Butler was transported to the hospital.
[9] Aaron Blustein is 38 years of age. He is unemployed and currently on a disability pension. He has had serious health issues, including depression. He acknowledged in testimony that he has used cocaine and marijuana over time. He has a conviction for possession of cocaine in 2011. Shortly before these events occurred, he had been living with his father. He was told to leave his father’s home since he persisted in smoking marijuana which his father disapproved of. His long-time friend, Dinah Mitchell, had agreed to have him stay at her apartment for the time being. They had previously been romantically involved but were now good friends.
[10] Aaron Blustein had been friends with the applicant on and off for fifteen or sixteen years. He had known Dave Butler for some five or six years. Dave Butler testified that all three had used illicit drugs, including cocaine, over the years.
[11] Dinah Mitchell testified that she was a frequent user of cocaine and marijuana, along with prescription drugs. She used drugs when she was stressed. The effect was to get her “high” and adversely affect her memory. The incident that evening in her apartment had left her shocked as her best friend, Dave Butler, nearly died in her arms.
[12] Shortly after Dave Butler was taken away by the ambulance, Aaron Blustein and Dinah Mitchell provided statements to the police about the stabbing and death threats. Dinah Mitchell did not want to complete her statement and was permitted to leave the station. They then visited Dave Butler in the hospital.
[13] Dave Butler knew that the applicant had a history of violence. The applicant had showed him a rifle (the AK-47) that he kept in the trunk of his car (the BMW). The BMW was parked underground at the apartment building where the stabbing had occurred.
[14] Dave Butler was sedated when Aaron Blustein and Dinah Mitchell visited him at the hospital a few hours after the stabbing. Dave Butler told Aaron Blustein about the AK-47 in the trunk of the applicant’s car. He believed that Dinah Mitchell already knew about it. Dave Butler testified that Aaron Blustein “freaked out” when he heard. This reaction was understandable in light of the stabbing and threats a few hours earlier. The applicant was still at large and might have returned to get the AK-47. Aaron Blustein also testified that he was haunted by the memory of another friend who had been stabbed to death many years before. Dave Butler hoped that Aaron Blustein would “take some action”, but did not expect him to break into the BMW.
[15] Dinah Mitchell also described Aaron Blustein as “freaking out” in regard to the potential danger of the applicant gaining access to the AK-47 after the stabbing and threats of a few hours earlier. She testified that she had smoked marijuana before the stabbing incident and definitely after she visited Dave Butler in the hospital. She was concerned that she might be held responsible for the AK-47 in the BMW in her assigned parking space at the apartment building. She was also concerned that the suspect at large had a key fob to gain entry to the apartment building.
[16] Dinah Mitchell described Aaron Blustein as “spastic, erratic and crazy”. She said he was taking several prescription drugs as well as illicit ones. She described him as having memory issues related to organic brain damage. She said that he sometimes recalls events totally different than what happened... “His brain is his heart”.
[17] When Aaron Blustein and Dinah Mitchell returned from the hospital, they were not allowed to enter her apartment as the police forensic team was working on the scene of the stabbing. The applicant (the suspect) was still at large.
[18] Officer Jennifer Fisher and Officer Marc Baghus of TPS had been dispatched at 5:26 p.m. to the scene of the stabbing. They were both in full uniform. Both were quite inexperienced. Officer Fisher had been a member of TPS for just over one year, and Officer Baghus for four and a half months. The serious nature of the incident and the fact that the suspect was still at large led them to carry shotguns as they left their cruiser. They went to the twelfth floor and observed the medical staff attending to Dave Butler. Officers Fisher and Baghus checked the stairwells for the suspect and then returned to the twelfth floor.
[19] Other officers were on scene. Officer Fisher was directed to return her shotgun to the cruiser and then return to stand as security at the door of the apartment as the forensic team worked inside. Officer Baghus transported Dinah Mitchell to the station for her witness statement. He then returned to the apartment building to assist in security along with Officer Fisher.
THE FIRST MENTION OF THE AK-47 TO THE POLICE
[20] Later that evening, Aaron Blustein approached Officer Fisher as she stood guard at the apartment door. At that point he did not want Dinah Mitchell to hear what he said because he was uncertain as to whether she still maintained some loyalty to the applicant. Aaron Blustein testified that he told Officer Fisher about the AK-47 in the trunk of the car in the underground parking area. He said he was not sure which specific spot it was parked in. He testified that Officer Fisher thanked him and said that the police would take it from there.
[21] Officer Fisher testified that it was sometime after 11:30 p.m. that Aaron Blustein approached her in the hallway on the twelfth floor for the first time. She recalls that Officer Baghus was some twenty feet away, near the elevator. Aaron Blustein told her there was a BMW in the underground parking area with an AK-47 and 26 kilos of cocaine in the trunk. Officer Fisher asked him how he knew that. Aaron Blustein simply responded that he knew. He did not reveal the source of his information. He did not link the gun and cocaine to the applicant (suspect). Aaron Blustein said he did not know the specific parking spot but the building security guard would know. Dave Butler did not mention cocaine when he testified that he told Aaron Blustein about the AK-47.
[22] Officer Baghus recalls that he was quite close to Officer Fisher when Aaron Blustein approached to talk shortly after 11:30 p.m. He recalls that Aaron Blustein quietly said there was an AK-47 in a parked BMW below ground. Aaron Blustein said he “just knew” and did not provide a specific source of the information. Officer Baghus thought it was strange that Aaron Blustein would be providing this information after he had already been interviewed at the station in regard to the stabbing.
[23] Officer Fisher and Officer Baghus then went to see the building security guard in the front lobby. They were told that parking spot #60 on level three was assigned to Dinah Mitchell. Both officers then went and observed a BMW in that spot. Officer Fisher tried to contact Detective Ryan Chung at the station by her cell phone. However, the reception was very poor in that area of the garage. Officer Fisher then went to the lobby and contacted Detective Chung. She was directed to check the licence plate and VIN number for the BMW. There was no rear plate on the car. At this stage, the suspect was still at large and may have had a key fob to enter the building. A check revealed that the vehicle plate was registered to the applicant.
[24] When Officer Fisher went to check the plates on the BMW, she saw Dinah Mitchell parking a scooter nearby. Dinah Mitchell confirmed that the parking spot was hers and that the BMW belonged to the suspect. Officer Fisher recalled that Dinah Mitchell asked her what it would take to get into the car. Dinah Mitchell made no reference to this in her evidence. Officer Fisher testified that Dinah Mitchell told her that she knew there was something in the car that would put the suspect (applicant) away for a long time. Officer Fisher told her that the police needed a search warrant to seize the contents of the car. Dinah Mitchell said she was too frightened to give a further statement. Officer Fisher recalled that Dinah Mitchell then said “what if there is a knife in the car?” Officer Fisher replied that the police had no information that the suspect had put a knife in the car. Dinah Mitchell did not recall any of this conversation in her evidence.
[25] Dinah Mitchell was asked if she recalled placing a scooter that belonged to Dave Butler near the spot where the BMW was parked. She did not recall doing that or seeing Officer Fisher in that area. Her best recollection later was that she did put the scooter there but no one else was around at the time.
THE SECOND MENTION OF THE AK-47 TO THE POLICE
[26] Aaron Blustein testified that there was a second discussion later that night with Officer Fisher. Dinah Mitchell was present. Officer Fisher told him that a search warrant was required to retrieve objects from the car. Aaron Blustein asked “how do we get it out?” He then posed a hypothetical situation to the officer involving someone getting into the car and leaving the trunk open. He claims the officer replied that if the police could see what was in the trunk then they could retrieve it, presumably without a search warrant. The officer said it would be helpful to the police. Aaron Blustein claims the officer said she would distract the building security officer from watching the video of the parking area and that there would be no consequences for whomever broke into the car. He interpreted that as meaning there would be no criminal charges. Aaron Blustein testified that Officer Fisher said that she would speak to the building security guard about deactivating a key fob for the building that the suspect may have had.
[27] Aaron Blustein did not recall whether Officer Fisher was on the phone as he spoke to her but agreed that she may have been. He did not recall Officer Fisher saying that a further statement from him was required for a search warrant but he said it could have happened. He did not recall being asked to go to the station for a further statement. He agreed it was possible but could not recall.
[28] Aaron Blustein felt the police had encouraged and approved his decision to break into the car to help retrieve the rifle. He described the police dealings with him as professional but indirectly leading him to believe it would be okay for him to break into the car and leave the trunk open. Officer Fisher did not say he should or should not break into the car but it would be helpful if the trunk was found open. He made clear in cross-examination that he was willing to do anything to get the rifle “off the streets”. He felt that the only way to protect himself and Dinah Mitchell was to get the rifle into the hands of the police. He felt the police must recover the rifle with or without a search warrant. His focus was less on the details of information he received from the police and more on getting the rifle beyond the reach of the suspect. He said he would take justice into his own hands. He agreed that the notion of Officer Fisher distracting the building security officer may have been in his own thoughts rather than from the police. In later testimony, he seemed more confident that the police did mention distracting the security officer.
[29] Dinah Mitchell testified that she heard some of the conversation between Officer Fisher and Aaron Blustein. She said she definitely did not hear all of it. She heard Officer Fisher say there was nothing the police could do without a search warrant. She was pacing nearby and was “half-listening”. She recalled Officer Fisher say that she could not tell Aaron Blustein to do anything, but if the trunk was found open it would be a great help. She claimed she heard Officer Fisher say that she would be with the building security guard when the car was broken into. She was irritated to hear the officer encourage Aaron Blustein to break into the car. She recalled that Officer Fisher asked her and Aaron Blustein to provide a further statement about the gun. She declined. She did not hear Officer Fisher direct Aaron Blustein to do anything. She did not hear Officer Fisher tell Aaron Blustein that he would not be charged and would have recalled if she heard that.
[30] Dinah Mitchell testified that Aaron Blustein was determined to go to any length to protect her and himself. She did not want him to break into the car and feared he would get into trouble. She was convinced that he would have broken into the car regardless of what Officer Fisher said to him. She believed that even if Aaron Blustein was told he would be arrested, he would have entered the car.
[31] Officer Fisher testified that she had gone to Dinah Mitchell’s apartment to find out whether the suspect had a key to that unit. She also wanted to see if Aaron Blustein and Dinah Mitchell would provide a further statement in support of a search warrant. She knocked twice and received no answer. She then called the cell number that had contacted 911 hours earlier and Aaron Blustein answered. Aaron Blustein and Dinah Mitchell came to the door. Aaron Blustein stepped into the hallway to speak to Officer Fisher. Officer Baghus was standing nearby. Aaron Blustein asked Officer Fisher about the gun in the car. Officer Fisher was on the phone with Detective Chung as Aaron Blustein stood beside her. Officer Fisher repeated what Detective Chung said to her to Aaron Blustein. She repeated that a further statement was necessary for a search warrant. Aaron Blustein asked if there was any other way. Officer Fisher repeated that Detective Chung said a search warrant was necessary unless the item is in plain view of the police. Aaron Blustein declined to give a further statement because he was too scared.
[32] Officer Fisher, Officer Baghus and Aaron Blustein then took the elevator to the lobby. Officer Fisher contacted Detective Chung again and asked if Aaron Blustein and Dinah Mitchell could be used as confidential informants. She was told that that was not an option. Officer Fisher then spoke to the building security guard about deactivating the key fob possessed by the suspect. She was told that the building manager would have to be involved for that. Officer Fisher and Officer Baghus then went to their cruiser outside the lobby and sat down to make their notes for events to that point.
THE BREAK-IN OF THE BMW
[33] Aaron Blustein took the elevator to the garage area along with Dinah Mitchell. She pointed out the car to Aaron Blustein. He found that the car was locked, as was the trunk. He testified that he had a hammer with him, although he is not sure where it came from. He used it to try to break the windows of the vehicle. He was unsuccessful in doing that or in opening the trunk. He said that he asked Dinah Mitchell to bring him back a crow bar. In the meantime, he unwound a fire hose that was nearby and used the steel component to break the sunroof and ultimately get into the interior of the car. That particular vehicle has a button to open the trunk that does not require the key to be in the ignition. Aaron Blustein was thus able to open the trunk of the vehicle. He looked in and observed a green bag as well as the end of what appeared to be a rifle. He also observed some white powder and some bullets. He retrieved one bullet from the trunk which he intended to show to the police.
[34] Aaron Blustein went to the lobby area looking for the police. He found the officers outside sitting in their marked cruiser near the entrance to the apartment building. Officer Fisher was seated in the passenger seat. Officer Baghus was in the driver seat. Aaron Blustein approached the passenger side of the vehicle. Officer Fisher opened her window. Aaron Blustein says that he handed her the bullet and told her that they might want to see what was in the car. He recalls that he actually gave the bullet to Officer Fisher who returned it to him. She said thank you and that the police would take it from there.
[35] Officer Fisher testified that Aaron Blustein approached their cruiser wearing a hoody over his head with his head slightly down. He approached her side of the vehicle. She rolled her window down. He showed her a long bullet with distinctive colouring. Aaron Blustein said words to the effect “The car is open now. You should have a look”. Officer Fisher was startled and confused. She asked what he meant. Aaron Blustein then indicated that there was an AK-47 in a bag in the trunk and that the police should go there before someone else does. Officer Fisher was in shock. She told her partner to unlock their shotgun. This was now into the early hours of November 1, 2014. In light of the potential danger, the information about a gun in the trunk as well as the suspect still being at large, Officer Fisher wanted to go armed with her shotgun. She opened the door and asked Aaron Blustein “What do you mean? Come show me”. Aaron Blustein, Officer Fisher and Officer Baghus then went to the garage area and approached the BMW. Since there was either poor or no reception for cell phones in the garage area, Officer Fisher had radioed her road sergeant their location before entering the garage area. Aaron Blustein approached the vehicle with the trunk exposed. Officer Fisher told him to stand back. She said that she was not sure of Aaron Blustein’s potential threat to them or others at this stage. She did not know if, in fact, there was a gun and possibly a loaded gun in the trunk. She knew that there was possibly some ammunition because Aaron Blustein had showed her a bullet. When Officer Fisher approached the trunk, she could see what appeared to be a portion of a rifle, but at the time she was not sure of the exact type. She stayed by the trunk of the car.
[36] It was obvious to Officer Fisher that the car had been broken into. She did not ask any questions of Aaron Blustein as to how the car had been entered. Her concern was focused on the rifle that was in the trunk.
[37] At some stage, Officer Fisher saw Dinah Mitchell come out of the elevator. Officer Fisher directed her and Aaron Blustein to stay away from the car. She requested that they go to their unit and that they would be spoken to later by police.
[38] Officer Fisher did not take possession of the bullet until the next day when it was presented to her by a senior officer at the station. She denied that she ever told Aaron Blustein that he could keep it or that she thanked him for producing it. She admitted that she should have seized the bullet when it was produced to her before the vehicle was found with the trunk open. She confirmed that the next day she met with Detective Rencoff and was counselled about the proper procedure for seizing and maintaining evidence in a criminal investigation.
[39] Officer Fisher waited for Sergeant Elizabett Cordeiro in the garage area. Sergeant Cordeiro attended and Officer Fisher reported to her what had happened. Sergeant Cordeiro then went to the lobby area to inform other officers as well as the Guns and Gangs Unit in regard to the rifle that was visible in the trunk. Officer Fisher and her partner stayed near the vehicle. Officer Fisher had no further contact with Aaron Blustein that day.
[40] Sergeant Cordeiro testified that neither Officer Fisher nor Baghus told her whether they knew or suspected who had caused the damage to the car and left the trunk open. Officer Fisher testified that she told Sergeant Cordeiro that she suspected that Aaron Blustein had caused the damage. Sergeant Cordeiro testified that she asked Officer Fisher if she knew where Aaron Blustein was at the time. Officer Fisher said she did not know. Based on that, Officer Fisher must have at least mentioned Aaron Blustein to her by name. Officer Fisher recalls that she told Sergeant Cordeiro that she had told Aaron Blustein to go back to the apartment after the open trunk was first observed by Officers Fisher and Baghus.
THE PARKING GARAGE VIDEO
[41] Sergeant Cordeiro spoke to the security guard of the apartment building in regard to the video surveillance in the parking area. The security guard advised her that there was such a video. He advised her that the video system was rather antiquated and it would be very difficult, if not impossible, to have the video transferred to a disc for police purposes. Sergeant Cordeiro was permitted to view the footage. She observed a male to come in and out of view and, at one point, the security guard identified the person as “Aaron”. The security guard also identified that person as someone who had been a guest of the tenant in unit #1203. The video showed the person climbing on and off the car at various times. The footage was not very clear. Sergeant Cordeiro decided that the best way to preserve this evidence would be to record the video on her cell phone camera. Her plan was to record and send on what she had copied on her phone to detectives for further investigation. She hoped that they would then perhaps be able to copy the video to a disc. After she had copied the video to her phone, she tried to email it to Detective Rencoff. She later learned that the email was not properly sent or received. She suspects it was due to the poor signal quality in the garage area of the apartment building. There were other witnesses who have testified to the very poor reception in that area. Unfortunately, a few days later, Sergeant Cordeiro’s phone was damaged by being run over by a car and she was unable to retrieve any information from it. Sergeant Cordeiro agrees that she should have made some efforts to have the forensic unit of TPS attend to try to recover the video images. She thought at the time that what she had done in terms of copying it to her phone would be an effective transfer.
[42] Mustafa Abou-Omar was the manager of the apartment building where these events occurred. He was contacted to attend in the early hours of November 1, 2014. He watched a replay of the parking garage video. Only part of the car was visible on the video, perhaps 75% of the hood and the front of the vehicle. The male grabs a fire hose and goes on to the top of the car. Dinah Mitchell is looking about as this went on. Mr. Omar confirmed that this video system was quite antiquated and had a very small hard drive. It automatically copies over itself, usually within three to four days at most. At the request of the police, he contacted the security company to see if a copy could be made or the data be otherwise saved. He did not receive a return call. Mr. Omar appreciated the urgency of the situation for the police. He also indicated that the apartment management would want to keep a copy of this tape for their own purposes in regard to the damaged property in the parking garage. He indicated that it would not have been practical for the camera itself to be simply removed by the police, since that would leave no video surveillance available on an ongoing basis for the parking garage. Mr. Omar testified that Detective Fenwick tried to contact him several times after these events in regard to the garage tape and left messages. Mr. Omar said that he was hard to contact and did not return many of those calls. By January 22, 2015, there was an exchange of emails in which Mr. Omar confirmed that the video record of what had occurred was no longer available as it had been over-written in the normal course.
WAS AARON BLUSTEIN ACTING AS A STATE AGENT WHEN HE BROKE INTO THE BMW?
[43] The action of Aaron Blustein had the effect of assisting in the police investigation by exposing the AK-47 to plain view. Without more, that did not make him an agent of the state when he did so.
[44] The test in R. v. Broyles, 1991 CanLII 15 (SCC), [1991] 3 S.C.R. 595 at para. 24 can be adopted to the matter before this court as follows:
In determining whether Aaron Blustein was a state agent, it is appropriate to focus on the effect of the relationship between Aaron Blustein and the police. The test is whether the break-in of the BMW and leaving the AK-47 exposed would have taken place but for the intervention of the police?
[45] In R. v. M (M.R.), 1998 CanLII 770 (SCC), [1998] 3 S.C.R. 393, the Supreme Court of Canada considered that evidence of cooperation and police presence during an office interview of a student by a vice-principal of a secondary school did not make the vice-principal a state agent, at least without evidence of an agreement and instructions from the police to the vice-principal.
[46] In R. v. Stark, (2000) 145 C.C.C. (3d) 515 (Ont. C.A.) at para. 24, the court held that there is no presumption in law that “a mere expression of interest” by a police officer constitutes an informer as a police agent. The trial judge must simply take this into consideration, along with all the evidence, in determining whether in fact the informant became a police agent.
[47] To determine the issue of state agency requires an examination, consideration and appreciation of all relevant circumstances. The question to be answered is whether the conduct and evidence obtained would have taken place in the form and manner in which it did, but for the intervention of the state and its agents: see R. v. Fatima, [2006] O.J. No. 3634 (O.S.C.) at para. 181.
[48] An assessment of the credibility and reliability of Aaron Blustein and Dinah Mitchell must include the following:
(1) They are admitted users of illicit drugs, including cocaine and marijuana.
(2) They both agreed that their drug use had negative impacts on their ability to recall events. Dinah Mitchell testified that there were “chunks” missing from her memory of these events.
(3) Dinah Mitchell described the impact of Aaron Blustein’s use of prescription and illicit drugs as significantly impairing his perception and memory of events.
(4) Both had witnessed the shocking event of Dave Butler being stabbed and then death threats uttered towards them by the applicant.
(5) Both had reasonable concerns that the applicant might have access to a high-powered rifle while he was still at large.
(6) Aaron Blustein felt an urgency to get the rifle into the hands of police and frustration that they seemed unable or unwilling to act on his information.
[49] I do not find that Aaron Blustein and Dinah Mitchell intended to mislead the court in their testimony. To this day, Aaron Blustein feels justified in his actions to break into the BMW and expose the rifle to police. However, their recollection of events is driven by a need to justify the actions of Aaron Blustein. I find that Aaron Blustein in particular misinterpreted the words and actions of the police to justify his determination to get the rifle “off the streets”.
[50] Officer Fisher was skeptical of the initial information from Aaron Blustein about a rifle in the BMW. She had never met or dealt with him before. He seemed very fidgety and nervous as he spoke to her. She agreed that there was no mention of Aaron Blustein’s fidgety demeanour in her notes or in her evidence at the preliminary hearing. However, the evidence of Aaron Blustein and Dinah Mitchell on this application is consistent with Officer Fisher’s impressions. Dinah Mitchell referred to her long-time friend as “freaking out” and determined to make sure the applicant did not have access to the rifle at all costs. Aaron Blustein described himself as driven by fear and determined to protect himself and Dinah Mitchell from further danger.
[51] Both Aaron Blustein and Dinah Mitchell may have honestly believed that Officer Fisher indirectly or implicitly encouraged him to break into the BMW and leave the trunk open. Both of them had witnessed the applicant stab Dave Butler and utter threats against them. They had good reason to believe that a rifle was in the applicant’s car. The applicant was still at large and presented a clear and present danger to them. Both of them declined to give further statements to the police in support of a search warrant. They both had an understandable sense of urgency in the face of a perceived failure by the police to take swift action to seize the rifle. Aaron Blustein claims that Officer Fisher said she would distract the security guard. Aaron Blustein and Dinah Mitchell both recall that Officer Fisher said she would speak to the security guard about deactivating the fob retained by the applicant. Neither Aaron Blustein nor Dinah Mitchell suggest that Officer Fisher explicitly told him to break into the car and leave the trunk open.
[52] Was Officer Fisher prepared to have Aaron Blustein break into the car and have possession of a high-powered rifle on his own? Was she prepared to run that risk? If she in fact encouraged him to do so, the answers to those questions must be yes. The notion that she would permit Aaron Blustein, in the anxious and agitated state he was in, to gain access to such a rifle in these circumstances is difficult to accept. Officer Fisher had barely met him and knew nothing of his background. In addition, Officer Fisher would also have to believe that Aaron Blustein would not expose this plan to do an end run around the search warrant process. Based on all of the evidence on this application, I do not find that Officer Fisher subtly or otherwise encouraged Aaron Blustein to break into the BMW.
[53] The applicant alleges a two-fold conspiracy by the police related to the entry of the BMW: first, encouraging Aaron Blustein to break into the car and leave the trunk open and; second, cover-up this plan in the course of the investigation and in evidence at the preliminary hearing and pre-trial application. The evidence related to the single bullet retrieved by Aaron Blustein must be considered in this context.
[54] Officers Fisher and Bacghus and Aaron Blustein all testified that Aaron Blustein showed a single rifle bullet to the officers. The officers agreed that they did not seize the bullet but should have. Neither officer made a note of this incident. Both agreed that they should have noted it. The applicant submits that both officers deliberately chose not to record this incident as part of a cover-up.
[55] Officers Fisher and Bacghus were both relatively unexperienced when these events occurred. They were originally tasked with standing as security outside the apartment while forensics officers examined the interior where David Butler had been stabbed. They then received information from a questionable source that there was an AK-47 in the trunk of a car in the parking area. After the source declined to provide a further statement about the rifle, the officers were later approached by the source. He showed them a distinctive-looking rifle bullet. The officers were shocked. They went to the parking garage and found the trunk open and the rifle exposed. That dramatic discovery understandably dominated their subsequent investigation.
[56] I am not persuaded that the failure to note the presentation of the bullet was part of a scheme to subvert the proper search process. If these two officers had such an intent, they could have taken and disposed of the bullet. By leaving it in the possession of Aaron Blustein, they had no control over the item and what he would do with it. Their conduct on this issue was substandard but not part of a deceitful plan.
[57] Based on all the evidence, I am not persuaded that Officer Fisher intended to employ Aaron Blustein as an agent to gain access to the trunk of the car. Aaron Blustein was not in fact an agent of the state when he did so. His subjective belief that his actions were encouraged and approved in advance by the police does not render him an agent.
LOST EVIDENCE
[58] The proper approach where an accused asserts a breach of the Charter based on a failure to preserve evidence in possession of the crown is found in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680. The principles were summarized in R. v. F.C.B., 2000 NSCA 35 as follows at paras. 10 and 11:
10 (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 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 rights 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.
11 The O’Connor criteria referred to in the eighth point are as stated by Justice L’Heureux-Dube at para. 82 of O’Connor:
It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
[59] In R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199 (Ont. C.A.), Justice Doherty addressed the issue of an appropriate remedy where a breach of s. 7 of the Charter or an abuse of process related to lost evidence has been found at trial:
42 A stay of proceedings is a remedy of last resort. The prosecution’s failure to preserve evidence does not automatically entitle the accused to a stay of proceedings even when that failure amounts to an abuse of process: R. v. La, supra, 108. A stay is an appropriate remedy only where the breach of an accused’s s. 7 rights has caused harm to the accused’s ability to make full answer and defence that cannot be remedied, or where irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue: R. v. O’Connor (1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1, per L’Heureux-Dube, in dissent, approved in R. v. La, supra, at p. 108.
43 The reluctance to stay criminal proceedings reflects the strong preference for a verdict on the merits. A stay of proceedings is sometimes necessary, but is nonetheless an unsatisfactory result which denies both the accused and the community their legitimate expectation of a true verdict based on the merits.
46 I realize that some will argue that the prosecution will only take its duty to preserve relevant evidence seriously if courts refuse to permit prosecutions to proceed where that duty has been ignored. The force of that argument cannot be denied. Judicial remedies must, however, be responsive to the material placed before the court in a particular case. The case may come when the record supports the conclusion that the destruction of relevant evidence not helpful to the prosecution reflects an institutional disregard for the prosecution’s obligation to preserve all relevant information in its possession. In such a case, a stay may well be the appropriate remedy. This is not, however, that case.
48 The degree of prejudice caused to an accused by a 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.
[60] The video footage of the break-in to the BMW and exposure of the AK-47 was clearly relevant evidence both on the pre-trial applications and the trial proper.
[61] The video was of poor quality. The technology was outdated and made it difficult, if not impossible, to transfer the images to a disc for preservation and disclosure. Those problems were not the fault of the police. Unfortunately, there were potential steps that were not taken by the police that might have preserved the evidence. On a very serious investigation involving a stabbing and retrieval of a high-powered rifle, Sergeant Cordeiro could have asked the forensic unit or technical support from TPS to at least attend on November 1, 2014, to see if the video could be transferred to disc. She was told by the apartment manager that the video images of the relevant events would override within three or four days. She did at least attempt to preserve the video by using her smart phone camera. Unfortunately, that was unsuccessful as I have noted in my review of the evidence. I find that Sergeant Cordeiro acted in good faith but did not take reasonable steps to preserve the evidence.
[62] Having found that the police did not act reasonably to preserve the evidence, I must then consider the issue of remedy.
[63] While the video was not preserved, I have heard evidence from three people who did view it. Sergeant Cordeiro, the security guard and the apartment manager all testified that they observed Aaron Blustein break into the BMW. Aaron Blustein testified that he broke into the BMW for his stated reasons. The overriding issue of whether Aaron Blustein acted as an agent of the state does not fall to be decided based on what the video captured.
[64] At the conclusion of the pre-trial motions, I dismissed the application pursuant to s. 8 of the Charter. I reserved ruling on the s. 7 application. This was to await completion of all the evidence in order to assess the degree of prejudice resulting from the lost evidence.
[65] On March 22, 2016, counsel advised that in regard to the counts related to the rifle there would not be viva voce evidence on the trial proper. It was agreed that the pleas of not guilty would remain and the Crown would read in facts that would not be contested by the defence. There would be no evidence called by the defence on the trial proper.
[66] The defence made no further submissions as to the degree of prejudice resulting from the lost evidence.
[67] There was no dispute that it was Aaron Blustein who broke into the car. While the police did not take reasonable efforts to preserve this evidence, I do not find that this is one of those “clearest of cases” where a stay of proceedings should be granted. The degree of prejudice to the applicant related to the lost evidence is not significant.
[68] RESULT: The applications under the Charter to exclude evidence or stay the proceedings are dismissed.
B. P. O’Marra, J.
Released: April 8, 2016