CITATION: R. v. Keith Ritchie, 2016 ONSC 3018
COURT FILE NO.: CR-13-0081
DATE: 2016-05-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Claude Richer and Kristen J. Mohr, for the Crown
Respondent
- and -
Keith Ritchie,
Victor Giourgas, for the Applicant
Applicant
HEARD: March 7, 8, 9, 10, 15, 16, 17, 18, 21, 22, 23, 30, and April 19, 2016,
at Thunder Bay, Ontario
Platana J.
Reasons On Application Regarding Lost Evidence
[1] Mr. Ritchie is charged with several charges under the Controlled Drugs and Substances Act and criminal organization charges under the Criminal Code. Other pre-trial applications have been dealt with. Further pre-trial applications relating to lost evidence, introduction of the transcript of a guilty plea of an alleged co-conspirator, and a videotaped sworn statement of an acknowledged participant in a conspiracy were agreed by counsel to best be considered by dealing with the evidence on the merits of the charges, and on the applications, in a single blended proceeding.
Overview of Application
[2] During the course of an extended police investigation on June 15, 2011, officers were conducting surveillance and videotaping certain parties and events. Mr. Ritchie was not a targeted party at that time. It is now alleged by the police that he was involved in the events leading to the charges he now is facing.
[3] The videotaped surveillance is no longer available. The defence alleges this has transpired either through unacceptable negligence by the police, or through intentional destruction of the evidence by the police.
[4] The Crown has now called all of its evidence in the proceedings. At the conclusion of the Crown’s case, the defence called one witness (a police officer who had testified on the merits as a Crown witness) as a defence witness, with respect to the application for s. 7 relief regarding lost evidence.
[5] The applicant seeks a remedy under s. 24(1) for an order staying the proceedings or, in the alternative, an order excluding the evidence of observations by the police pursuant to the same section.
[6] For the reasons which follow, this application is dismissed.
Facts
[7] The facts to be considered in this application are generally not disputed. The issue is the application of the facts to the legal principles counsel agree on.
[8] On the 23rd of April 2011 at the request of Project Dolphin investigators, Constable Kelly Walsh installed a covert video camera at 225 London Drive, Thunder Bay. The recordings were recorded on a Sony network surveillance recorder, located in his office within the Thunder Bay Police Station at 1200 Balmoral in Thunder Bay. Only he and investigators could have had access to the room.
[9] Constable Walsh testified that he was solely responsible for the camera maintenance, to review the video files and prepare detailed surveillance reports, and to maintain the recorder that was used in this investigation.
[10] From April 23rd up until the takedown day on the 16th of June 2011, Constable Walsh would review the recordings and prepare detailed surveillance reports directly from what he viewed during the video playback. The reports were made daily (except for weekends and holidays) including on takedown day. Based on the recordings he viewed, he prepared Exhibit 8. He explained how he would go about identifying individuals on the video. If an individual could not be identified or he did not know the identity, he would mark that person as “unknown” male or female. If the identity was known to him, but could not be verified by video to his satisfaction, the person would be listed as “believed to be”. He also confirmed that Mr. Ritchie was previously known to him.
[11] Prior to takedown day, some investigators had asked for some video clips to be exported and to be used for their investigative purposes. One video file from June 15, 2011, was exported for that purpose and is filed in evidence as an exhibit before this Court.
[12] Shortly after takedown (within the week of June 16, 2011), Constable Walsh started the process of transferring and copying the files from the network recorder to DVDs. He began to manually export the clips of video that were noted in each surveillance report. He explained that the recorded segments were stored in 15 to 20 minute clips. The recording system files for each clip were stored in separate files. The copying of the files was a slow and tedious process. Because it was an older recording device, Constable Walsh could not transfer many files at once. The files had to be taken off the computer one by one for each day.
[13] Constable Walsh would export the files as time permitted and continued with other duties. He transferred the files starting with the first recorded files from April 23, 2011, and he kept going in a sequential manner one day at a time. He worked from the 23rd of April 2011 forward, and emptied each day's video separately and prepared an original copy and copies for the file manager.
[14] During the summer of 2011, as Constable Walsh continued to work on making the original files, he discovered he was only able to reproduce the original files from the 23rd of April 2011, the date recording began, up to and including the 24th of May 2011; any activity following the 24th of May 2011 was not saved. When Constable Walsh went into the export file areas there were no files. The original files on the recorder had disappeared.
[15] Constable Walsh made inquiries and took steps to determine what had happened and contacted resource people to attempt to recover the files. In order to determine what happened with the recordings, he spoke with another police technical officer and also with Sony Canada technical support. After calls to the tech officer and to Sony Canada and after looking at the manual, Constable Walsh was able to determine that, unbeknownst to him, a factory default setting existed that would save the files for a number of days and once the memory on the device reached a certain level (which Constable Walsh believed was 10%) the files would be erased.
[16] Constable Walsh examined the device and determined that the recorder was configured to the factory setting such that after certain criteria were met, all the files were erased, including all files that had not yet been exported. His observations accorded with the information he was provided by Sony Canada. He confirmed that the existence of the default setting was not known to him at that time. After concluding his examination of the network recorder settings, Constable Walsh was comfortable about why the files went missing.
[17] Since then he has changed the setting to the maximum period of time which he believes is approximately 1000 days.
[18] Constable Walsh attempted to recover the files but could not. He was advised by Sony Canada that the files could not be recovered. He later learned that the RCMP TAT unit in Ottawa possibly had the ability to retrieve lost information on hard-drives. He personally delivered the hard-drive to the RCMP in Ottawa to allow them to attempt to recover the missing files. They were not able to retrieve the files.
[19] Constable Walsh indicated that he had been working each day with the device before the files went missing and had had no issues. He had no reason to believe that the files would not be there.
[20] Constable Walsh confirmed that at the time of the events of June 15, 2011, Mr. Ritchie was not a target of the investigation and that the events involving Mr. Ritchie were not of paramount significance. The significance of the events involving Mr. Ritchie were not apparent until the analysis of the PGP phones came back months later.
[21] The Applicant has focused on the evidence of Officer Walsh that he has no independent recollection of the log entry at 20:46 on June 15, 2011: “Muzzi arrives in the Lincoln and goes to the house, along with Ritchie”. Counsel submits that Walsh did not write that “Ritchie arrived”. When questioned about this, Walsh testified that he believed from reviewing the entry that Ritchie arrived with Muzzi but that he had no independent recollection of same.
[22] Jessica Coley (formerly Mihalcin) testified that on the night of June 15, 2011, she attended the Sovereign room with Laura Russo (Mr. Ritchie’s girlfriend) to watch the Stanley Cup playoff final. After the game ended, she left with Laura Russo to attend 225 London Drive, the subject location of the surveillance, to pick up Keith Ritchie. Travel from the restaurant to the Muzzi residence took between approximately 20 to 30 minutes. Upon their arrival, neither Ms. Coley nor Ms. Russo got out of the car at 225 London Drive when they attended to pick up Mr. Ritchie.
[23] Ms. Coley testified that she contacted Corporal Ron Miller shortly after the incident but could not recall if it was days or weeks. Ms. Coley confirmed that at some point between May of 2009 and December of 2010, she briefly dated Corporal Miller for a period of at most one month. They were no longer dating on June 15, 2011. When asked if Corporal Miller had ever asked her questions about Keith Ritchie, Ms. Coley answered “no”. She indicated that Corporal Miller had never asked her for information or warned her about Keith Ritchie. Ms. Coley indicated that Corporal Miller did not know that Ms. Coley was friends with Laura Russo when they had been dating.
[24] In cross-examination, Ms. Coley testified that Corporal Miller had not discussed with her the existence of surveillance video at 225 London Drive, nor had he mentioned its existence during or after their discussion subsequent to her attendance at 225 London Drive on June 15, 2011. She was asked if Corporal Miller had ever told her he would make inquiries and answered “no”. She was asked if Corporal Miller ever indicated to her that he would check and see if she was on the video and she indicated “no”. Finally, she was questioned as to whether she had asked him if he could find out any of these things and she indicated that she had not. When asked if Corporal Miller had indicated that he would do anything to help out, she answered “no”. Further when asked if Corporal Miller had told her he would keep things from the Court, she answered “no”.
[25] In cross-examination when directly asked what she recalled, Ms. Coley remembered leaving the Sovereign Room after the Stanley Cup final game being over. To the best of her ability and recollection, she believed the game was over when she left in the company of Laura Russo to pick up Keith Ritchie.
[26] Ms. Coley acknowledged that she was not asked to give a statement to the police until approximately five years after June 15, 2011.
[27] Corporal Ron Miller is a member of the RCMP assigned to the RCMP detachment in Thunder Bay. He is not a member of the Thunder Bay Police and was never an investigator on Project Dolphin or a member of the investigative team. His role was limited to providing assistance in conducting surveillance of John Tsekouras on June 16, 2011, assisting in the conduct of the search of Mr. Ritchie’s residence in April of 2012, and in liaising with other RCMP sections that were providing assistance to the Thunder Bay Police.
[28] Corporal Miller confirmed that in June of 2011 he was not was not in a relationship with Ms. Coley. The two were not dating and had very little contact. When asked if he was concerned how she would be viewed he answered “no”.
[29] At the end of May 2012, he attended the Ritchie bail hearing and disclosed to Mr. Richer that he was aware that someone in a vehicle picked up Mr. Richie the day before (ie. the night of June 15, 2011). He attended the Ritchie bail hearing to speak about Mr. Ritchie’s travel. He recalled being at the Ritchie bail hearing and having a conversation with the Crown, Mr. Richer, either prior to or during the hearing and advising him about Ms. Coley on that date. Disclosure was subsequently made to defence counsel. He disagreed with the defence suggestion that the first time the matter was disclosed was at the preliminary inquiry.
[30] Corporal Miller also confirmed in his testimony that he had no involvement in the making of the surveillance video or in it being erased. He did not have access to the video or the video file. He also confirmed that he did not have access to the video storage unit. Corporal Miller was not aware of when the video went missing and confirmed that he had never watched the video.
[31] When asked directly if it was a coincidence that the video had gone missing, Corporal Miller confirmed that it was “a total coincidence”.
[32] Corporal Miller testified that he had not had any discussions with Constable Walsh regarding the circumstances involving Ms. Coley. Further, he had not talked to Constable Walsh about the video.
[33] Corporal Miller confirmed that when he received the information from Ms. Coley, Mr. Ritchie was not a target nor was he a subject of the investigation. To his knowledge, Mr. Ritchie had no significance to the investigation. He did not put together the fact that Ms. Coley’s attendance was important until later when he became aware that the surveillance video was missing.
[34] Corporal Miller was asked in cross-examination when he came to recognize the importance of Ms. Coley’s attendance at 225 London Drive. He indicated that it was at the bail hearing when he had a discussion with Mr. Richer. Corporal Miller testified that as soon as he realized the importance of Ms. Coley’s attendance on the evening of June 16, 2011, he advised the Crown, Mr. Richer.
[35] When defence read a portion of his testimony to him, it became clear that Corporal Miller mistook the testimony for the bail hearing for the testimony he gave at the preliminary inquiry. He corrected himself when asked further questions by the defence.
[36] Corporal Miller was asked directly and testified to the following facts: he did not interfere with or erase the surveillance video, nor did he direct anyone to interfere with or erase the video. He is not aware of anyone interfering with the video surveillance.
Applicant’s Position
[37] Counsel submits that the issues to be determined are as follows:
i) Was the lost disclosure of the surveillance between the above noted times relevant;
ii) If so, was the lost disclosure a result of unacceptable negligence; and
iii) If so, has the loss of this disclosure prejudiced the Applicant’s ability to make full answer and defence at trial amounting to a violation under s. 7 of the Charter; and
iv) If so, what remedy ought to be imposed.
[38] Mr. Giourgas submits that the right to make full answer and defence, as a principle of fundamental justice, is protected under s. 7 of the Charter. The Supreme Court of Canada established that, as a corollary of the right to make full answer and defence, an accused is entitled to full disclosure of any information, documentation or like material in the possession or control of the Crown and police that is likely relevant to his outstanding charge: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.); R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80 (S.C.C.).
[39] Further, police investigators have an obligation to disclose to the Crown all relevant matters pertaining to their investigation of an accused: R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66 (S.C.C.).
[40] Mr. Giourgas cites the recent case of R. v. Hassan, 2014 ONSC 1345, [2014] O.J. No. 988 at para. 9, where Code J. explained that a lost evidence allegation is one of the more analytically complex species of Charter litigation. At para. 9 he states:
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.
[41] Mr. Giourgas submits that where the Crown is unable to comply with disclosure obligations because evidence has been lost through unacceptable negligence, the Applicant’s rights under s.7 of the Charter have been infringed and actual prejudice as a result of the loss of the evidence need not be shown. The onus of establishing that the explanation for losing the relevant evidence does not amount to unacceptable negligence rests with the Crown: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 (S.C.C.) at para. 20; R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No 4199 (C.A.) at para. 30.
[42] In this case, Mr. Giourgas alleges an abuse of process if it is found that the police destroyed evidence. Further, the s. 7 application is 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 by Code J.
[43] He references the Ontario Court of Appeal decision in R. v. Dulude, 2004 CanLII 30967 (ON CA), [2004] O.J. No. 3576 at paras. 36-39, where the Court dealt at length with this issue of lost or destroyed videotapes. He notes that Laskin J. identified two circumstances in which a stay is an appropriate remedy where the Crown fails to disclose relevant evidence. The first is when the non-disclosure irreparably prejudices the Applicant's ability to make full answer and defence, and the second is when it prejudices the integrity of the administration of justice. In Dulude, a stay was not found to be the appropriate remedy because the videotape in question was found to be only marginally relevant and, therefore, it did not irreparably prejudice the Applicant's ability to make full answer and defence.
[44] Counsel submits that if a stay is not warranted, the defence can rely on the lack of video to establish that the Crown has not met its burden of proof. In Dulude, at para. 40, the Court offered this as a remedy to alleviate any prejudice,
If the defence believes it has been prejudiced by the loss of the videotape it should be allowed to put before the trial judge evidence that the Crown failed to preserve and disclose the videotape despite its obligation to do so. The defence should also be allowed to lead evidence about how the tape may have assisted Ms. Dulude in raising a reasonable doubt about her guilt on the two charges she faced, or in showing how the Crown had failed to meet its burden of proof. The trial judge will then be able to assess the significance, if any, of the lost evidence.
[45] Counsel references R. v. La for the proposition that in order to determine whether the explanation of the Crown for the loss is satisfactory, the Court must look to circumstances surrounding the loss of evidence, to determine whether the Crown or the police took reasonable steps in the circumstances to preserve the evidence for disclosure. As the relevance of the evidence increases so does the degree of care for its preservation that is expected of the police. In cases where the loss of the video went to the heart of the issues, a s. 7 violation was made out.
[46] Counsel references R. v. Maghdoori, [2008] O.J. No. 1109 at paras. 10, 23-24, where Blouin J. acknowledged the issue of marginally relevant videotapes being lost. The Court found that even if a video/audio recording is deemed to be marginally relevant, it still ought to be disclosed to the defence. In granting the stay of proceedings, the Court commented on the issue of even minimally relevant audio/video tapes contributing to the integrity of the administration of justice,
Although this case…involve[s] the loss of minimally helpful evidence from multiple security cameras, one can't help but comment on the positive contribution that live audio/video taping would make to the integrity of the administration of justice. The only appropriate remedy is a stay of proceedings.
[47] With respect to the issue of late disclosure, counsel references Stinchcombe, where Sopinka J. held that a request for disclosure “should be complied with so as to enable the accused sufficient time before election or plea to consider the information”. Moreover, in R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451 at para. 19, Sopinka J. held that,
… the Crown has a duty to disclose to the accused all information reasonably capable of affecting the accused’s ability to make full answer and defence, and to do so early enough to leave the accused adequate time to take any steps he or she is expected to take that affect or may affect such right.
[48] Mr. Giourgas submits that under the doctrine of abuse of process, the unfair, vexatious or oppressive treatment of an accused disentitles the Crown from carrying on with the prosecution. In light of such conduct on the part of the police or the Crown, permitting the accused to be subjected to a trial would be to undermine the community’s sense of fair play and decency. Where the affront to those values is disproportionate to the societal interest in the effective prosecution of criminal cases, then in the “clearest of cases” the administration of justice is best served by staying the proceedings. Demonstration of prosecutorial misconduct is not required to give rise to a finding of abuse of process: R. v. Keyowski, 1988 CanLII 74 (SCC), [1988] 1 S.C.R. 657 (S.C.C.).
[49] He further references decisions where, even where no abuse of process was found, stays have been granted where the prejudice to the accused was irreparable: R. v. J.W.S, [2002] O.J. No. 137 (S.C.J.); R. v. C. W., [2013] O.J. No. 6251 (S.C.J.)
[50] In the alternative to a stay of proceedings, Mr. Giourgas submits that where a stay is not appropriate the exclusion of certain evidence may be the appropriate remedy under s. 24(1): R. v. Dupuis, [2014] O.J. No. 1823 (S.C.J.); R. v. Kish, [2011] O.J. No. 956 (S.C.J.)
[51] Mr. Giourgas submits that without the entirety of the video being available, Constable Walsh’s evidence and Exhibit 8 as to what was on the missing video, as well as Ms. Coley’s evidence, should be excluded from the trial, and from the upcoming hearsay motion on a videotaped statement given by a deceased Crown witness.
[52] The Applicant submits that his constitutional rights as guaranteed by s. 7 of the Charter have been violated as a result of the lost police surveillance videos and in particular the videos from June 13 to 15, 2011.
[53] It is submitted that, in particular, the missing portion of the video from after 17:01 to 23:00 is relevant and would show if the Applicant returned with Frank Muzzi at 20:46 as alleged by police and whether or not the Applicant was picked up that evening by anyone from 225 London Drive.
[54] Mr. Giourgas argues that the evidence of Ms. Coley was deliberately suppressed by Corporal Miller. Even on his evidence, it was not disclosed for approximately one year. It only came out at the Applicant’s preliminary inquiry under questioning by the Applicant’s then counsel. Mr. Giourgas submits that this may have been the motive for the lost video and that it is not just a coincidence, particularly as Corporal Miller was a less than forthright witness.
[55] Officer Walsh testified that others had access to his video system/computer and could have accessed the settings. Intentional destruction of the video would be the sort of state conduct that would amount to an abuse of process and should result in a stay of proceedings.
[56] It is submitted that Ms. Coley’s evidence is tainted because of the suppression of the evidence by Corporal Miller, the passage of time in the police obtaining a statement from her, and the missing video itself. The Crown ought not to be permitted to rely on this evidence to buttress their case when it is because of state action that her evidence is lacking and unsatisfactory.
[57] Mr. Giourgas submits that even if I find that the state conduct here does not amount to an abuse of process, the Crown has not met its onus that the loss of the video surveillance was not due to unacceptable negligence. He notes that the Crown led no evidence about steps taken to preserve the videos in a timely fashion or understand the settings on the system, or even why in fact the videos went missing. No expert report has been proffered, nor technical analysis sought.
[58] Counsel submits that the prejudice to the Applicant of the loss of this evidence is significant. The Crown alleges that the Applicant returned with Mr. Muzzi to his residence after dropping drugs off at Mr. Larizza’s residence sometime between 17:01 and 20:46 on June 15, 2011. Counsel submits that Exhibit 8 is unclear on this issue, particularly as to the entry at 20:46. Officer Walsh has no independent recollection of Mr. Ritchie arriving at 20:46. The Crown seeks to tender evidence that they maintain was the lost video to demonstrate the Applicant’s arrival, but they only have an unclear log entry. The prejudice is self-evident and significant.
[59] Furthermore, the Crown seeks to rely on the rest of the log entries in Exhibit 8 to demonstrate the reliability of the Larizza statement on the hearsay motion. The Applicant cannot challenge these without the video. Again the prejudice is self-evident and significant.
Position of Crown Respondent
[60] The Crown acknowledges that the lost evidence of the tape is relevant. The Crown’s response in its factum is that the mere loss of relevant evidence, in and of itself, does not constitute a violation of s.7 of the Charter, nor does it even necessarily result in a breach of the duty to disclose. The Respondent submits that the best evidence rule does not prohibit the admissibility of testimony of D/C Walsh describing the contents of the surveillance video from June 15, 2011, as recorded in Exhibit 8.
[61] Mr. Richer submits that the non-production of the actual video goes to the weight of the evidence and not its admissibility. The unchallenged and un-contradicted evidence of the officer as to his observations concerning the meeting of the accused during surveillance and their activities is entitled to some weight. The creation of a report, made contemporaneously to the viewing of surveillance video, should be equally received by the courts: R. v. After Dark Enterprises Ltd., [1994] A.J. No. 1057 (C.A.).
[62] He acknowledges that in R. v. Hassan, at para. 9, the law recognizes three distinct kinds of Charter breaches that may be alleged in the context of lost evidence and potentially give rise to a stay of proceedings. These are:
a) A violation of the right to disclosure;
b) Loss of evidence due to an abuse of process; and
c) A violation of a right to a fair trial.
[63] He submits that an allegation of violation of a right to disclosure involves two distinct issues that need to be addressed, namely:
a) Whether the lost evidence is relevant; and
b) Whether the evidence was lost due to “unacceptable negligence”: R. v. Hassan, para. 9.
[64] As noted previously, Mr. Richer acknowledges that the evidence is relevant. He submits that an accused cannot claim an automatic breach of their constitutional rights where relevant evidence is not disclosed and then lost or destroyed. A breach of the Charter is only established where relevant evidence is lost because of unacceptable negligence by the Crown: R. v. G.S. 2010 ONCA 296, [2010] O.J. No. 1666 at para. 30. However, failing to preserve relevant evidence shifts the burden of proof to the Crown to prove on a balance of probabilities the absence of “unacceptable negligence”: R. v. Hassan, para. 10.
[65] Mr. Richer submits that courts have long recognized that relevant evidence will occasionally be lost. Not all losses of relevant evidence equate to unacceptable negligence or result in a breach of the Crown’s disclosure obligation. As it must, the law recognizes human frailties: See R. v. Dulude, at para. 30; See also R. v. La. He cites R. v. G.S., 2010 ONCA 296, [2010] O.J. No. 1666, where the Ontario Court of Appeal stated at follows:
The Crown's duty to disclose relevant evidence includes the obligation to preserve relevant evidence. However, as Sopinka J. noted in his majority judgment in R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, "despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost." The loss or destruction of relevant evidence that was once in the Crown's possession or control thus does not automatically equate to a breach of the Crown's disclosure obligation. In La, Sopinka J. sets out the legal framework for analyzing when lost or destroyed evidence gives rise to a breach of s. 7 of the Charter and when it justifies a stay of proceedings: R. v. G.S., para. 32.
[66] The Crown notes that as noted by the Court of Appeal in R. v. G.S., “where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation. Section 7 of the Charter has not been breached”:R. v. G.S., para. 35.
[67] Where the Crown gives no explanation or where the Crown's explanation shows that the evidence has been lost or destroyed because of the Crown's "unacceptable negligence", then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of the Charter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence: R. v. G.S., para. 33.
Discussion / Analysis
[68] As noted in R. v. Bero, at para. 30:
… The proper approach where any accused claims that the failure to preserve material in the possession of the Crown results in a breach of a Charter right is found in R v. La, supra. That approach is conveniently summarized by Roscoe J.A. in R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 at 547-48 (N.S. C.A.):
(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 the 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 right 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.
[69] As noted by Code J. at para. 9, in Hassan:
[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 CanLII 402 (SCC), 112 C.C.C. (3d) 289 (S.C.C.); R. v. Vu and La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.); R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont. C.A.); R. v. Knox (2006), 2006 CanLII 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.
[70] In this case, counsel has based his argument on a violation of all three kinds of Charter breaches described.
Disclosure / Unacceptable Negligence
[71] With respect to the right to disclosure, the Crown agrees that the evidence of the video is relevant and disclosable. The issue to be determined in this allegation is whether this evidence was lost due to “unacceptable negligence”. The burden is on the Crown to prove an absence of unacceptable negligence on the balance of probabilities.
[72] In R. v. La, at para. 21:
In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.
[73] In La, the Court considered that a lost tape was made before the investigation of the accused began (para. 29). Further, at para. 33, the Court considered that:
… the tape might or might not have disclosed discrepancies which tend to support subsequent collaboration or accentuate the inconsistencies. While this level of relevance would be sufficient to meet the test for disclosure as set out in Stinchcombe (No. 1) it falls far short of establishing a serious impairment of the right to make full answer and defence.
[74] In R. v. Kish, Nordheimer J., in dealing with a situation where the police lost two pieces of evidence stated at para. 16:
That said, the decision in R. v. La also recognizes that the investigation and disclosure processes in a criminal prosecution are human based and that, as a consequence, despite best efforts mistakes will occur.
[75] At para. 18, he concluded:
There is no explanation as to how the VHS tape disappeared. Equally, there is no evidence to suggest that it was deliberately destroyed nor is there any evidence to suggest that it disappeared through a habit or pattern of carelessness or sloppiness within the Toronto police. None of that excuses the fact that the tape was lost, however. It was possibly relevant evidence and, once seized, it should have been maintained. I am satisfied, however, that the loss of the tape falls squarely within the human nature exception to which Sopinka J. referred as I have just quoted. I therefore do not consider the loss of the tape to have occurred through unacceptable negligence.
[76] An additional factor considered by Justice Nordheimer was that given the officer “knew that the surveillance video would be overwritten within twelve days, it was incumbent upon him to ensure that he had copied what he was supposed to have copied” (para. 21).
[77] In this case, the evidence establishes that the tape was made prior to Mr. Ritchie’s possible involvement being made known to the police. That happened only after the cell phone of John Tsekouras, another accused, was seized and information from that phone retrieved.
[78] Further, I find that in all respects, except for his lack of knowledge of the time period on the video machine to erase previous recordings, the procedures followed by Constable Walsh were entirely acceptable. The video machine was located in an office where only he and other investigators, (which did not include Corporal Miller) had access. He reviewed the tapes regularly and made detailed notes including the identification of individuals seen on the video. He had no reason at the time of viewing the video to identify Mr. Ritchie as a target and therefore immediately make a copy of the files where Ritchie appeared. Upon learning of the loss of the video, he immediately made efforts to retrieve it by contacting another police technical expert, the RCMP special technical experts, and the manufacturer of the video recorder.
[79] The issue is squarely whether his failure to know that the recorder had a maximum recording time before erasing previous files was “unacceptable negligence”. While his failure to have determined that may be considered a human error, as in Kish, I do not find that it falls into the classification of unacceptable negligence.
[80] The Crown has discharged its onus to disprove that issue.
Abuse of Process
[81] The second form of Charter violation alleged by Mr. Giourgas is that the evidence was lost due to an abuse of process. The allegation is based on the evidence that Corporal Miller deliberately withheld evidence that Ms. Coley had been at Mr. Ritchie’s residence on June 14 until he was asked about it at the preliminary hearing. The argument of Mr. Giourgas suggests that Corporal Miller’s evidence was so inconsistent in his testimony as to when he first told anyone what Ms. Coley had told him, that it cannot be accepted.
[82] It is apparent that Corporal Miller was careless in his note-taking as to when he first testified, at the bail hearing or the preliminary hearing. He was clearly confused in his evidence on that point. While he was clearly embarrassed in his confusion and conflicting evidence, I did not find him deliberately attempting to give false evidence, or to mislead the court.
[83] I have also considered the evidence of Ms. Coley in relation to the abuse of process allegation. Ms. Coley clearly indicated that Corporal Miller had not discussed the evidence of a tape with her, nor had he mentioned the existence of it. In fact, there is no evidence that at the time he was even aware of the video surveillance. Further, she stated that she never asked him to check the video to see if she was on it, and that when asked if Corporal Miller had indicated that he would do anything to help her out, she replied “no”. I accept her evidence of no attempt by Corporal Miller to “cover up” the fact that she was at 225 London Drive on June 14, 2011, and that she and Laura Russo picked up Keith Ritchie at that residence.
[84] The applicant has also suggested that there was opportunity for Corporal Miller to access the video recording and to erase the lost tape. I accept Constable Walsh’s evidence that only he and the investigators, which did not include Corporal Miller, had access to the video machine. There is no other evidence to indicate that Corporal Miller may have effected the erasure, or acted in collusion with anyone else to do so..
[85] In view of Ms. Coley’s evidence on that point, which I accept, Corporal Miller’s denial of any attempt to “protect” her, the fact that the relationship between the two had been brief and had ended six months previous, and Constable Walsh’s testimony, I find that the applicant has not met his burden to establish an abuse of process.
Right to a Fair Trial
[86] The third breach relied on by the applicant is that the loss of this evidence has caused sufficiently serious prejudice to the accused that he cannot have a fair trial.
[87] In R. v. J.W.S., [2002] O.J. No. 137, Goodman J. stated at para. 23:
The Crown’s obligation to disclose evidence does not exhaust the content of the right to make full answer and defence under section7 of the Charter. Therefore, even where the Crown has discharged its disclosure obligations by providing all relevant information in its possession and explaining the circumstances of the loss of any missing evidence, an accused may still rely on his or her section 7 right to make full answer and defence. In extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of the accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy. (See La, supra, at 99.)
[88] In considering whether a stay is justified, in Delude, the Court stated, at para. 36:
… A stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused’s ability to make full answer and defence, or the integrity of the administration of justice. See R. v. Bero at para. 43; R. v. Leduc (2003), 2003 CanLII 52161 (ON CA), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99; R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 at para. 68; R. v. La, supra, at para. 23.
[89] At paras. 38 - 40, the Court stated:
[38] Therefore, whether a stay is warranted turns on the effect of the lost videotape on Ms. Dulude’s ability to make full answer and defence and, therefore, on her ability to have a fair trial. The main considerations are the degree of prejudice to Ms. Dulude caused by the loss of the security videotape and whether the prejudice that does exist can be alleviated by means short of a stay: See Bero at para. 48.
[39] Because the security videotape has been irretrievably lost, assessing the degree of prejudice is, to some extent, speculative. However, as I have already discussed earlier in these reasons, at best the videotape was marginally relevant to the defence. Correspondingly, the prejudice from its loss is minimal. Certainly, its loss does not irreparably prejudice Ms. Dulude’s ability to make full answer and defence or her right to a fair trial. Therefore, a stay is not warranted. Another remedy short of a stay is readily available to alleviate any prejudice.
[40] If the defence believes it has been prejudiced by the loss of the videotape it should be allowed to put before the trial judge evidence that the Crown failed to preserve and disclose the videotape despite its obligation to do so. The defence should also be allowed to lead evidence about how the tape may have assisted Ms. Dulude in raising a reasonable doubt about her guilt on the two charges she faced, or in showing how the Crown had failed to meet its burden of proof. The trial judge will then be able to assess the significance, if any, of the lost evidence.
[90] In J.W.S., the Court found that videotapes of a complainant in a sexual assault case had been destroyed by virtue of police policy. Actual prejudice was found because, based on the notes of the interview, the complainant’s recollection of events was different from her evidence at the preliminary inquiry. At para. 40 the judge commented: “The importance of the videotaped statement was absolutely clear and the prejudice to the defence by its loss could not be underestimated.”
[91] In La, the Court stated that although the tape had been lost, “most importantly, an alternative source of information is available” (para. 32).
[92] Further, as I previously noted, in dealing with relevance, the Court in La noted that the lost tape may or may not have disclosed information which was of benefit to the accused, and that “fell short of establishing a serious impairment of the right to make full answer and defence”.
[93] When considering how to assess prejudice, the Court in Bero, at para. 49, stated:
An assessment of prejudice is problematic where, as in this case, the relevant information has been irretrievably lost. No one can say with any certainty whether an examination of the vehicle would have produced information helpful to the appellant in his defence. It may have done so, or it may have yielded information that confirmed the Crown’s case, or it may have produced information that supported neither the Crown nor the defence.
[94] I find that these comments apply here. This is not a case as in J.W.S. where the importance of the video was absolutely clear. Its value here is mere speculation. The missing video may or may not assist Mr. Ritchie in his defence. It was open to him to testify or to call evidence on his own behalf.
[95] Further, it is open to the defence in arguing the merits of the charges to argue the fact of the missing video in regards to the Crown’s ultimate burden of proof beyond a reasonable doubt.
[96] As noted by Justice Code in Hassan, the burden of establishing a violation of this type depends on proof of actual prejudice to the results at trial. The burden falls on the defence to prove irremediable prejudice to the accused’s rights to a fair trial.
[97] In R. v. Bradford, 2001 CanLII 24101 (ON CA), [2001] O.J. No. 107, at para. 8, the Court stated:
The fact that a piece of evidence is missing that might or might not affect the defence will not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration. For example, in B. (F.C.), supra, the court held that where the complainant's signed statement was lost, but a typed transcription that was probably accurate existed, the trial judge erred in entering a stay of proceedings. In R. v. D. (J.), a judgment of the Ontario Court of Appeal, delivered May 30, 1996, 2007 ONCA 160, [1996] O.J. No. 1907, although the complainant's statement was lost, the officer's notes were available, and the court held that it was speculative whether there were any inconsistencies between the complainant's statement and the officer's notes.
[98] Similarly, in this case, although there is no recorded video, there is the detailed notes made by Constable Walsh, whom defence counsel acknowledged to be an honest and forthright witness.
[99] The Applicant seeks a stay of proceedings on the basis that he cannot make full answer and defence. At para. 44 in Bero:
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 CanLII 402 (SCC), 112 C.C.C. (3d) 289 at 310-312 (S.C.C.).
[100] In R. v. G.S., at para. 59, the Ontario Court of Appeal noted:
A stay is available if the respondent can show that continuing the proceedings would amount to an abuse of process. A stay for abuse of process is limited to cases where prosecutorial conduct is so unfair or vexatious or oppressive that continuing the proceedings would offend our sense of justice and undermine the integrity of the judicial process: see R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411; Canada (Ministry of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391.
[101] In R. v. Knox, Justice Laskin stated:
Thus, on this ground of appeal, the crucial question is the appropriate remedy under s. 24(1) of the Charter. The appellant does not ask for a new trial; he asks for a stay. A stay, of course, is rarely granted because of the societal interest in a verdict on the merits. To warrant a stay, the appellant must meet the "clearest of cases" standard. Ordinarily a stay because of the Crown's failure to disclose relevant evidence is justified only if the non-disclosure either irreparably prejudiced the accused's ability to make full answer and defence or irreparably harmed the integrity of the administration of justice. See R. v. Dulude, 2004 CanLII 30967 (ON CA), [2004] O.J. No. 3576, 189 C.C.C. (3d) 18 (C.A.), at para. 36; and Bero, at para. 42.
Conclusion
[102] In this case, I find that there was no deliberate attempt by the state to compromise Mr. Ritchie’s ability to make full answer and defence. The state conduct, either in the loss of the video and how it occurred, or in the confusing evidence of Corporal Miller, does not meet the level of being unfair, vexatious or oppressive.
[103] This is not the “clearest of cases” where a stay should take precedence over the societal interest in a verdict on the merits. The lost evidence of the video in this case is speculative as to whether it may assist the accused, or the Crown. I find there is no irreparable harm to the accused as a result of the loss of the video. He is still fully entitled to argue its potential on the merits of the case; the notes of Constable Walsh, a witness I find forthright in his evidence, are subject to cross-examination; the accused is not precluded from calling evidence himself as to the very issue Mr. Giourgas argues is not shown on the video.
[104] The burden is on the applicant to establish a violation of his right to a fair trial. He has not met that burden.
[105] I am not satisfied that Mr. Ritchie’s s. 7 and 11(d) Charter rights have been violated. No stay is warranted. The loss has not irreparably prejudiced the accused’s right to a fair trial. The integrity of the justice system has not be brought into disrepute.
[106] For the same reasons, I see no basis to exclude the evidence of Constable Walsh or Ms. Coley on the trial or on the hearsay motion.
[107] This application is dismissed.
______”original signed by”
The Hon. Mr. Justice T.A. Platana
Released: May 4, 2016
CITATION: R. v. Keith Ritchie, 2016 ONSC 3018
COURT FILE NO.: CR-13-0081
DATE: 2016-05-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and -
Keith Ritchie,
Applicant
REASONS ON APPLICATION
REGARDING LOST EVIDENCE
Platana J.
Released: May 4, 2016
/mls