CITATION: R. v. Power, 2017 ONSC 4700
COURT FILE NO.: CR-17-540000573-0000
DATE: 20170802
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
GERALD HYCINTHE POWER
David Tice, for the Crown
R. Roots Gadhia and M. Ellison, for Gerald Power
HEARD: July 21, 2017
M. DAMBROT J.:
BACKGROUND
[1] Gerald Power was tried by me with a jury on an indictment alleging that on August 15, 2015, he attempted to murder Arsen Makaryan and that he committed aggravated assault on Arsen Makaryan. The jury has now convicted him of aggravated assault. Prior to the case going to the jury, Power brought an application for a stay of proceedings. He alleged that the police had violated his rights under s. 7 of the Charter because they “lost” relevant evidence that should have been preserved and disclosed. I dismissed the application, with reasons to follow. These are those reasons.
[2] At the time of the alleged offence, the applicant resided on the second floor of an apartment building at 2361 Lake Shore Boulevard West in Toronto. The complainant lived on the fourth floor of the same building. The Crown alleged that on August 25, 2015, the complainant returned from a shopping trip, passed the applicant outside of the building, entered the building, walked up the stairs to the fourth floor and as he was attempting to unlock the door of his apartment, the offender attacked him and stabbed him twice in the back, and then fled. The complainant suffered two significant penetrating wounds.
[3] The offender testified at his trial. He denied encountering the offender outside the building, and instead said that shortly before the complainant was wounded, he opened the door of the building for his girlfriend, proceeded up the stairs to the second floor landing, saw the complainant coming down the stairs with a knife in his right hand, pushed his girlfriend through the door into the second floor, grabbed the right arm and hand of the complainant, pulled the arm behind the complainant’s back, pushed the complainant to the ground face first and fled into the second floor. He was unaware of the complainant suffering any wounds, and saw no blood.
[4] The Crown and defence agreed that a number of cameras were installed and operational at 2361 Lake Shore Boulevard West at the time of the encounter between the complainant and the applicant. On August 15, 2015, one of those cameras, which was installed in the front lobby/foyer facing the street, would have recorded all individuals entering and exiting the building using the front entrance, and another camera installed just beyond the front lobby/foyer monitored the main hallway. One of the officers who participated in the investigation of this matter immediately after the police were called observed and made note of these cameras, but no police officer took steps to seize or preserve the video footage from any of them until after the preliminary hearing, when the video no longer existed.
[5] There was no operating camera anywhere in the stairwell that the complainant and the applicant each said they ascended prior to the encounter, or in the halls of either the second or the fourth floor.
[6] Det. Miron, the lead investigator in this case, was of the opinion that the video would not afford any relevant evidence in this case. As far as he was aware, the stabbing occurred on the fourth floor of the building at the complainant’s door. This belief was based on information provided by the complainant, and was confirmed by the finding of a pool of blood on the floor outside the complainant’s door. Det. Miron also knew that the suspect resided on the second floor, and was told by an independent witness, who was a neighbour of the applicant on the second floor, that the applicant was with her shortly after the incident. As a result, he believed that the applicant likely returned to his apartment after the incident, and then attended at the witness’s apartment.
[7] The complainant gave a full statement to the police on December 15, 2015. On that occasion, the police learned for the first time that the complainant saw the applicant outside the building prior to their encounter. The prosecution did not know that the applicant would deny being outside the building at the pertinent time until he testified at this trial.
The Position of the Applicant
[8] The position of the applicant on this motion was less than clear. As I understood it, Counsel for the applicant placed primary reliance on cases that concern a failure by the Crown to disclose relevant evidence that the police lost, or failed to preserve, as a result of unacceptable negligence, and argued that a stay of proceedings was the appropriate remedy.
Analysis
[9] I have several difficulties with the position of the applicant.
[10] First, there can be no violation of the Crown’s duty to disclose relevant evidence that was never seized by the police and never otherwise came into the possession of the police.
[11] Second, assuming that the unacceptably negligent failure to seize relevant evidence could amount to a failure to disclose, or otherwise form the basis of a Charter violation, it would amount to a Charter violation in the circumstances of this prosecution. The police in this case had no reason to think that the video had any relevance at all until two months after the stabbing, and even then, as far as the police knew, the relevance was minimal. I do not doubt that a careful investigator would have made efforts to seize the video at an early opportunity to ascertain what, if anything, it disclosed, but a failure to do so does not come close to a Charter violation. I see no basis to conclude that the police were unacceptably negligent.
[12] Third, unlike the police, the accused and his counsel knew from the outset that the video was relevant to the defence. The inattention of the police in no way inhibited the ability of counsel for the accused to obtain the video, or to take steps to ensure that the police obtained it. Here the defence exercised no such diligence. I fail to see how the police interfered in any way with the applicant’s right to make full answer and defence.
[13] Finally, with respect to remedy, even if there was a Charter violation in this case, the prejudice to the defence is minimal, since the video could not have shed light on what took place between the complainant and the applicant at the pertinent time, and a stay of proceedings would not be justified.
Disposition
[14] For these reasons among others, the application was dismissed.
M. Dambrot J.
RELEASED: August 2, 2017
CITATION: R. v. Power, 2017 ONSC 4700
COURT FILE NO.: CR-17-540000573-0000
DATE: 20170802
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
GERALD HYCINTHE POWER
REASONS FOR RULING
M. DAMBROT J.
Released: August 2, 2017