R. v. Williams, 2017 ONSC 572

CITATION: R. v. Williams, 2017 ONSC 572

COURT FILE NO.: CR-15-3488

DATE: 20170127

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Andrew Williams

Accused

Walter Costa, for the Crown

Laura Joy, for the Accused

HEARD: January 3, 4, 5 & 6, 2017

RULING ON MOTION TO STAY

Munroe J.:

[1] Andrew Williams stands accused of serious criminal driving charges. These accusations arise out of a freight train-minivan collision on June 10, 2012, which caused the death of two of Mr. Williams’ children and serious injury to a third. These children, plus a fourth child who sustained only minor injuries, were passengers in the minivan driven by Mr. Williams.

[2] This matter before me is a motion for a stay or for other relief brought by Mr. Williams. The motion encompasses all seven charges. The trial and motion voir dire evidence have been heard. Submissions on both this motion and on the trial proper have been made. It now is appropriate to decide the motion.

[3] The defence alleges nine separate breaches of ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms and claims abuse of process. More specifically, the defence alleges the following:

1. Lost or Destroyed Evidence

a. a statement of Chris McMillan purportedly taken by Cst. Iverson;

b. the original black box hard-drive;

c. the original video and data from the train camera;

d. the minivan; and

e. the 911 call to Rail Traffic Control (“RTC”);

2. Pre-Charge Delay;

3. Preliminary Hearing Committal based on faulty expert evidence;

4. Late Disclosure; and

5. Faulty Police Mechanical Inspection Report.

[4] Each shall be addressed.

[5] These reasons are organized as follows. Before turning to the individual allegations, I will give a procedural history of the motion, give a factual overview of the case itself, provide the positions of the parties on the case proper, and review the legal principles concerning violations of ss. 7 and 11(d) of the Charter generally and the available remedies under s. 24(1), including a stay of the proceedings. I will then address the nine allegations. All of the allegations, except the black box and the train video, will be reviewed individually. Because the circumstances of the black box and the train video are so similar, they will be reviewed together. Within each separate allegation, I will identify the positions of the parties; review the facts specific to each, if necessary; review specifically applicable legal principles; and apply the facts to the law. There are five separate allegations of lost or destroyed evidence. I will review the legal principles concerning lost or destroyed evidence only once, at the beginning of that section. I will conclude with my disposition of the motion.

PROCEDURAL HISTORY

[6] On November 4, 2016, the defence filed its Notice of Application and Defence Factum on the stay issue. The allegations were limited to the loss of the minivan door, the loss of the Chris McMillan statement, pre-charge delay, and the inappropriate exposure by the police of the minivan to the elements.

[7] The Crown filed its Respondent’s Factum on November 16, 2016.

[8] On the first day of trial, on December 5, 2016, all counsel agreed that the defence motion to stay should be heard at the end of the evidence. The court agreed.

[9] On December 19, 2016, the Crown closed its case. The defence moved for a non-suit which was denied on December 21, 2016.

[10] On December 22, 2016, the defence closed its case and the Crown declined to call a rebuttal case.

[11] On December 23, 2016, the defence filed its Notice of Amended Application formally adding the following grounds to its original motion:[^1]

1. Lost or Destroyed Evidence

a. the original black box hard-drive;

b. the original video and data from the train camera; and

c. the 911 call to Rail Traffic Control (“RTC”);

2. Preliminary Hearing Committal based on faulty expert evidence;

3. Late Disclosure; and

4. Faulty Police Mechanical Inspection Report.

[12] The defence also made it clear that it was eliminating the claimed loss of the minivan door as a ground on its motion.

[13] All counsel agreed that the applicable trial evidence would be used on the motion to stay. The voir dire on the motion to stay was scheduled to begin on January 3, 2017. Later on December 23, 2016, the Crown filed its brief written response to the amended application.

[14] Commencing on January 3, 2017, two witnesses were called on the voir dire: CP Police Constable Kristian Iversen and an associate lawyer of defence counsel, Eva Janta. In addition, the following exhibits were introduced:

Ex. 1: the Ontario Court of Justice Information;

Ex. 2: e-mail from Mr. Costa to Ms. Joy dated December 29, 2016, with attached e-mails from Canadian Pacific Railway (“CP”) (paragraphs 1-4 re: claimed Cst. Iversen statement of Chris McMillan will not be considered);

Ex. 3: report of Cst. Iversen;

Ex. 4: notes of Cst. Iversen;

Ex. 5: e-mails of and to Cst. Iversen re RTC communications;

Ex. 6: e-mails of and to Cst. Iversen re RTC communications;

Ex. 7: statement of James Hamilton;

Ex. 8: disclosure requests and materials from the defence – Tabs 1-7;

Ex. 9: distance to stop calculations (trial Ex. 5);

Ex. 10: train time/distance considerations;

Ex. 11: Transportation Safety Board Regulations;

Ex. 12: transcript of oral committal reasons of Marion J. dated September 24, 2015; and

Ex. 13: e-mail from Sean O’Hara dated January 4, 2017.

[15] Submissions were heard first on the motion and subsequently on the case itself. Both matters were reserved. This matter was considered first and will be decided first.

FACTUAL OVERVIEW OF CASE

Admissions

[16] At the commencement of the trial, the defendant made the following admissions:

1. On June 10, 2012, the vehicle in question had a collision with a train;

2. The accused was the driver and owner of the vehicle in question at the time of its collision with the train;

3. Children of the accused were passengers in the vehicle in question at the time of its collision with the train; and

4. The personal injury and death alleged to three of the accused’s children were caused by this train collision.

Setting

[17] This was a freight train-minivan collision at a railroad crossing in rural Essex County, Ontario. The train was travelling on the railroad tracks going westbound. The minivan was travelling southbound on a two lane unmarked gravel road called Strong Road. There were no posted speed limits on Strong Road. The speed limit was an unposted 80 kilometres per hour. This was in late spring, June 10, 2012, in the morning. The collision happened, per the black box evidence, at 9:42 a.m. There was no other traffic on Strong Road at the time. The morning was sunny and clear. The area was rural and flat. There were no sight obstructions – no buildings, no homes, no structures, no woods, no trees, no high crops, nothing – either from the perspective of the train looking north and west toward the oncoming minivan or from the perspective of the minivan looking south and east toward the oncoming train.

Crossing

[18] The railroad crossing at Strong Road was marked on both sides of the tracks by two visual signs: an x-like cross (referred to as a cross buck). This cross buck was atop a diamond shaped sign which read, “STOP BEFORE CROSSING.” This sign was not a traditional stop sign. The crossing itself was not level with Strong Road but was a bit raised. The crossing had no gates, no lights, no bells or other audible signals on the approach of a train. Strong Road is a gravel road. There are no stop lines in the road.

[19] There are two additional signs visible to a driver approaching this railroad crossing from the north going south on Strong Road. Both are on the west side of the road. The first is approximately 210 metres north of the railroad tracks and is a diamond shaped sign with the symbol of a railroad crossing. The second is approximately 107 metres north of the railroad tracks and is a diamond shaped sign with the words, “BE PREPARED TO STOP.”

Black Box

[20] As it approached this crossing, the train was on cruise control travelling at a speed of 48.6 miles per hour. The train’s headlight and ditch lights were on. The train started blowing its whistle or horn at approximately 18 seconds before the collision or approximately 1,193 feet before the crossing. Upon blowing the whistle or horn, a bell automatically began ringing. (This commencement was approximately 127 feet and approximately 2 seconds past the required time to commence at the quarter mile post.) The whistle/horn was blown initially at approximately 18 seconds before the collision, then again at approximately ten seconds before the collision, then continuously from 7 seconds before the collision. The train did not brake or slow down before the collision. At the collision, the emergency brakes almost immediately were engaged at approximately 9:42:01.2. The train did not begin to slow down for approximately 300 feet and did not come to a complete stop for almost one half mile down the tracks.

Evidence from the Locomotive

[21] The approaching freight train had two occupants in its lead locomotive: the engineer, or driver of the train, Mr. James Hamilton; and the conductor, Mr. Chris McMillan. Both gave evidence.

[22] Mr. Hamilton testified that as the train approached Strong Road he saw a minivan coming toward the crossing. According to him, the minivan “seemed” to be coming at a high rate of speed. He estimated the minivan was about 4,000 feet or three quarters of a mile away from the crossing when he first saw it. At the quarter mile or whistle post, he began sounding the whistle. He noticed the minivan dip in front and move from side to side which looked to him to be a braking effort by the minivan driver. It appeared to Mr. Hamilton the minivan driver had trouble keeping the minivan under control. According to Mr. Hamilton, the minivan driver looked up at the locomotive, shrugged his shoulders, and accelerated. He saw a rise in the front of the minivan. The minivan then drove in front of the train. When Mr. Hamilton heard a crunch he knew the minivan did not make it across. Mr. Hamilton believes the driver’s window was down but is not absolutely positive it was.

[23] Mr. McMillan’s attention was directed to the oncoming minivan by Mr. Hamilton. He saw the minivan approaching and said it looked like it had a good speed because of the dust on the road. To him it seemed like the minivan was travelling at a high rate of speed but he was unable to estimate the speed. At that time Mr. McMillan estimated the train was about a half mile away from the crossing. As the minivan got closer it slowed down and fishtailed. The minivan window looked like it was down. Then there was the collision.

Accident Scene

[24] Mr. McMillan was first to arrive at the scene. When the train came to a complete stop, Mr. McMillan grabbed a first aid kit and ran back to the crossing. He found the minivan badly damaged on the southwest portion of the intersection. He discovered five people in the minivan, the adult driver and four children. All were injured. Two of the young children were lifeless. When he went to the driver’s side, he could see into the minivan. The window either was down or there was no window. Mr. McMillan noted the minivan radio was on so loud it was distracting. He turned it off. He said it was higher than medium volume but less than full blast.

[25] OPP Officers Brad Williamson, Rich Bortolon, and Mark Japp attended the collision scene that day. Among other tasks, they noted physical evidence deemed by them to be important and took measurements. Included and of import to this motion were the markings on the gravel road both before and after the collision and the markings on the wood planking between the train tracks at the crossing. These markings were identified as tire markings and began at the north side of the crossing in the west side of the gravel road at approximately 51.26 metres north of the most northerly train rail. This was the earliest physical sign of breaking found on the gravel road. These tire marks did not remain parallel nor on the west side of the road. The tire markings separated or “out tracked” and drifted toward the east side of the road. This tire marking separation first began approximately 36.72 metres north of the tracks. By the time the tire markings reach the tracks, they are on the east side of the road. Officer Williamson documented black marks on the east side of the crossing on the planks between the two railroad tracks. He identified these as tire marks and opined that they were breaking marks from the rear tires of the minivan. Markings south of the crossing were identified as being from the minivan showing the path of the minivan from the collision and the pushing of the minivan into the field on the southwest portion of the crossing.

[26] The train impact on the minivan was on the driver’s side behind the driver’s door.

[27] Subsequently Cst. Williamson examined the minivan noting the driver’s window was shattered but down inside the door.

POSITIONS OF THE PARTIES ON CASE

Defence

[28] The defence says the driving of the accused was neither dangerous nor amounted to criminal negligence. At worst it was momentary inattentiveness, but that conduct was not criminal. At most it was civil negligence or careless driving. The collision was a terrible accident with horrible consequences but the driving of Mr. Williams did not rise to the level for which criminal sanctions should apply. He tried to stop before the tracks and was unable to do so. This effort to stop supports the conclusion that there was no criminal mens rea here. There is no evidence of speeding or of a pattern of “crazy” driving. Mr. Williams was on an unfamiliar road with less than perfect eyesight and hearing. There is insufficient evidence that the rear brakes of the minivan worked at the time.

[29] With regard to the evidence of speed, the Crown’s evidence should be rejected. The opinion evidence of Cst. Williamson on speed deserves little or no weight. He is a flawed expert and his calculations do not match the specifications of the car or the gravel road. The speed evidence of the train personnel, Mr. Hamilton and Mr. McMillan, should be rejected because of the quickness of the event, the vantage point of the train personnel, and their inherent bias in favour of the railroad.

[30] With regard to the evidence of Mr. Hamilton, the train engineer, on the purported shoulder shrug and his resulting conclusion that the minivan thereafter sped up and tried to outrun the train, it should be rejected as unreliable. The evidence of Mr. Hamilton must be treated with caution because he has a motive to slant his evidence in favour of the railroad and himself. He also admitted to bad memory and his evidence had serious inconsistencies. The court should consider the fact that Mr. Hamilton “lawyered up”, or retained counsel, in assessing his bias in favour of the railroad.

[31] Finally, the defence argues causation: the train was at fault, it should have stopped. The engineer violated the railroad’s rules when he failed to brake upon seeing there was going to be “imminent” contact with the minivan. The minivan had no legal duty to stop at the tracks. The sign at the crossing was not a regulation stop sign and thus did not compel the accused to stop. The sign was only advisory. In addition, the train’s whistle was blown late in violation of the railroad rules. Thus, the train was the cause of the accident and not the accused.

Crown

[32] Mr. Williams’ conduct that led to the collision was purposeful and, as such, it was criminally negligent. One inference from the evidence is that Mr. Williams saw the oncoming train and tried to beat the train to the crossing. That is classic criminal negligence – recognition of the risks and an intentional continuation of the conduct.

[33] Another path to criminal negligence, says the Crown, is the accused’s failure to take steps to avoid the risk of an oncoming train in the face of multiple warning signs and a clearly visible train. According to the Crown, this same set of facts also supports a finding of guilty on the dangerous driving counts.

[34] Although there is no evidence of actual speed of the minivan, both Mr. Hamilton and Mr. McMillan testified about the minivan’s high rate of speed. And whatever the actual rate of speed, it was an inappropriate rate under the circumstances because the accused was unable to stop. If the road and its surface are unfamiliar to a driver, the driver has to exercise a greater degree of care. The warning signs were clearly visible and, as a driver, the accused should have adjusted his driving to meet the potential danger. It was the accused’s driving that caused this collision.

GENERAL PRINCIPLES

[Sections 7](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) and [11(d)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[35] Section 7 of the Charter provides the following:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.

[36] Section 11(d) of the Charter provides the following:

Any person charged with an offence has the right … (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal ….

[37] Section 24(1) of the Charter provides the following:

Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Abuse of Process and the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[38] Superior courts have inherent discretion to stay proceedings in a criminal case for abuse of process. R. v. Jewitt, 1985 CanLII 47 (SCC), [1985] 2 S.C.R. 128, at pp. 131-137. In clarifying the existence of this common law power, the Supreme Court adopted the following passage from R. v. Young (1984), 1984 CanLII 2145 (ON CA), 46 O.R. (2d) 520 (C.A.), at p. 551:

[T]here is residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community’s sense of fair play and decency and to prevent the abuse of a court’s process through oppressive or vexatious proceedings.

[39] Also adopted from Young is its caveat that the power should be exercised only in the “clearest of cases”. Jewitt, at p. 137.

[40] A stay of proceedings “is tantamount to a judgment or verdict of acquittal.” Jewitt, at p. 147.

[41] The relationship between the common law doctrine of abuse of process and the Charter was resolved in R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411. Recognizing that the principles of fundamental justice “reflect and accommodate” the common law doctrine of abuse of process and conceding a lack of utility in maintaining separate regimes, Madam Justice L’Heureux-Dubé, speaking for a unanimous court on this issue, decided that the abuse of process doctrine was subsumed in s. 7 of the Charter, except in those cases where the Charter does not apply. O’Connor, at paras. 58-71.

[42] With regard to what conduct constitutes an abuse of process under the Charter, L’Heureux-Dubé J. considered it unhelpful to identify any one particular “right against abuse of process”. Instead, she reviewed the different Charter guarantees which may be engaged, including an infringement of the right to a fair trial pursuant to ss. 7 and 11(d) of the Charter. O’Connor, at para. 73. This could include non-disclosure. O’Connor, at para. 74.

[43] In addition, there is a residual category under s. 7.

This residual category does not relate to conduct affecting the fairness of the trial or impairing other procedural rights enumerated in the Charter, but instead addresses the panoply of diverse and sometimes unforeseeable circumstances in which a prosecution is conducted in such a manner as to connote unfairness or vexatiousness of such a degree that it contravenes fundamental notions of justice and thus undermines the integrity of the judicial process.

O’Connor, at para. 73.

[44] Under s. 24(1), the range of remedies is broad; what the court “considers appropriate and just in the circumstances.” Typically the remedy for a disclosure breach is a disclosure order and an adjournment. O’Conner, at para. 83. The focus is on the remediation of any prejudice and the safeguarding of the integrity of the justice system. R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at para. 26. Only when a disclosure order and an adjournment do not eliminate the prejudice, or the offending conduct compromises the integrity of the justice system, should the court consider an increased remedy of exclusion of evidence or beyond. Bjelland, at paras. 26-27. At the highest end, a stay remedy is the most drastic and is reserved only for the “clearest of cases”. O’Connor, at para. 79.

[45] A stay of the proceedings pursuant to s. 24(1) will only be appropriate when two criteria are satisfied:

1. the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and

2. no other remedy is reasonably capable of removing that prejudice.

O’Connor, at para. 75.

[46] Subsequently, a third factor was recognized - a traditional balancing of interests - when the court is uncertain. Canada (Minister of Citizenship and Immigration) v. Tobiass, 1997 CanLII 322 (SCC), [1997] 3 S.C.R. 391, at para. 92; R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 57.

[47] Recently, Mr. Justice Moldaver summarized this area in R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-32, as follows:

A stay of proceedings is the most drastic remedy a criminal court can order (R. v. Regan, 2002 SCC 12, [2002] 1 S.C.R. 297, at para. 53). It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits. In many cases, alleged victims of crime are deprived of their day in court.

Nonetheless, this Court has recognized that there are rare occasions – the “clearest of cases” – when a stay of proceedings for an abuse of process will be warranted (R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, at para. 68). These cases generally fall into two categories: (1) where state conduct compromises the fairness of an accused’s trial (the “main” category); and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the “residual” category) (O’Connor, at para. 73). ….

The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest that society has in having a final decision on the merits.” (ibid., at para. 57.)

ANALYSIS

Issue One: Lost or Destroyed Evidence

[48] The accused makes five separate claims of lost or destroyed evidence. Each will be discussed after first reviewing the applicable legal principles for lost or destroyed evidence.

Applicable Principles

[49] It is now long established that the Crown has a duty to disclose to the defence all relevant information in its possession. R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, at p. 343. The premise for this duty is foundational:

[T]he fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.

Stinchcombe, at p. 333.

[50] This disclosure duty is triggered by a simple request from the defence. Stinchcombe, at p. 343.

[51] Relevancy is broadly defined in this context as “reasonably capable of affecting the accused’s ability” to defend himself or herself. R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, at p. 466. This relevancy threshold requirement is quite low. R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at para. 21. “[I]f it is of some use, it is relevant and should be disclosed.” Egger, at p. 467. In other words, if “the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence” it must be disclosed. Egger, at p. 467.

[52] Because under our Canadian system of law enforcement it is the police and not the Crown who conduct criminal investigations, there is a corresponding duty on the police to disclose all fruits of their investigation to the Crown. R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 23.

[53] In addition, there is a related duty on both the Crown and the police to preserve the fruits of the investigation. R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paras. 17 and 20. “The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant.” La, at para. 20.

[54] However, given our humanness, it is obvious and recognized that evidence will occasionally get lost. La, at para. 20. As a consequence, a body of law has emerged considering these rights and lost evidence.

[55] The seminal case for lost or destroyed evidence is R. v. La. The proper approach, where an accused claims that the failure of the Crown to preserve evidence results in a Charter breach, was summarized in R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 137 O.A.C. 336 (C.A.), at para. 30:

(1) The Crown has an obligation to disclose all relevant evidence 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.

[56] Given the issues raised in this case, a deeper review of certain areas is necessary.

Possession by Third Party

[57] “The Crown can only produce what is in its possession or control.” R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 S.C.R. 754, at para. 2 [Stinchcombe #2]. The Supreme Court has specifically rejected the position that for disclosure purposes the “Crown” includes other government agencies and departments. McNeil, at para. 22. Such a position “finds no support in law and, given our multi-tiered system of governance and the realities of Canada’s geography, is unworkable in practice.” McNeil, at para. 22.

Accordingly, the Stinchcombe disclosure regime only extends to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly referred to as the “fruits of the investigation”.

McNeil, at para. 22.

[58] If, however, the third party possessed a relevant item as an agent for the investigating police, then the same disclosure obligations apply to the third party: see R. v. Prosa, 2015 ONSC 3122, at paras. 32-37 (Centre of Forensic Sciences given blood sample for testing by the police that, through CFS negligence, was lost); compare R. v. Tapper, 2009 NLTD 93, at paras. 45-50 (hospital that analyzed blood sample for medical purposes then destroyed the sample pursuant to its normal practice was not an agent of the Crown) and R. v. Baker, 1998 CanLII 13818 (SK QB), [1998] S.J. No. 130, at paras. 3-10 (destroyed bank documents in fraud case never in possession of Crown or police).

Duty to Inquire

[59] This does not mean to suggest that the Crown can put its head in the sand and has no obligation to seek out and obtain relevant information and material. Although the Crown has no obligation to canvass the world on every case, it does have the duty to make inquiries if it is put on notice of the existence of relevant information. McNeil, at paras. 48-49.

The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so. Ryan J.A. in R. v. Arsenault (1994), 1994 CanLII 5244 (NB CA), 153 N.B.R. (2d) 81 (C.A.), aptly described the Crown’s obligation to make reasonable inquiries of other Crown agencies or departments. He stated as follows:

When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation. Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is denied access to another agency’s file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of the accused.

McNeil, at para. 49.

Copies vs. Originals

[60] “There is no absolute right to have originals produced.” Stinchcombe #2, at para. 2.

If the Crown has the originals of documents which ought to be produced, it should either produce them or allow them to be inspected. If, however, the originals are not available and if they had been in the Crown’s possession, then it should explain their absence. If the explanation is satisfactory, the Crown has discharged its obligation unless the conduct which resulted in the absence or loss of the original is in itself such that it may warrant a remedy under the Canadian Charter of Rights and Freedoms.

[61] Stinchcombe #2, at para. 2. It is the information which must be disclosed, not the original. La, at para. 18.

Duty on Defence Counsel

[62] As officers of the court, defence counsel must pursue Crown disclosure diligently.

Counsel for the accused must bring to the attention of the trial judge at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. Observance of this rule will enable the trial judge to remedy any prejudice to the accused if possible and, thus, avoid a new trial. See Caccamo v. The Queen, 1975 CanLII 11 (SCC), [1976] 1 S.C.R. 786. Failure to do so by counsel for the defence will be an important factor in determining on appeal whether a new trial should be ordered.

Stinchcombe, at p. 341.

When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.

Dixon, at para. 37.

[63] Defence counsel’s lack of diligence in pursuing disclosure is a significant factor in determining whether the Crown’s non-disclosure affected the fairness of the trial. Dixon, at para. 37; see, e.g., R. v. Knox (2006), 2006 CanLII 16479 (ON CA), 80 O.R. (3d) 515 (C.A.), at paras. 34-38.

Existence of Material Disputed

[64] When the Crown asserts that it has fulfilled its disclosure obligations and denies the existence of a certain item, the defence must establish a basis upon which the court can conclude that the item exists. R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, at para. 30. At times this “basis” can be established by counsel submissions and at other times more formal evidence will be required. Chaplin, at paras. 31-32.

A Statement Of Chris McMillan Purportedly Taken By Cst. Iverson

Positions of the Parties

Defence

[65] The defence says CP Police Constable Kristian Iverson took a formal police statement from train conductor Chris McMillan on the scene shortly after the collision on June 10, 2012. According to the defence, that statement has never been disclosed and Cst. Iverson does not know what happened to it. The OPP took another statement from Mr. McMillan a few days later but, according to the defence, the OPP statement is an insufficient substitute because of possible collusion and fading memory during the time between the two statements.

[66] With regard to this alleged breach, the defence advances the exclusion of the evidence of Chris McMillan as an alternate remedy.

Crown

[67] The Crown challenges the existence of any formal, written statement. The Crown says Cst. Iverson interviewed Mr. McMillan and made notes and a report of his interview which have been disclosed to the defence.

Facts

[68] Chris McMillan, the train conductor, was one of two people present in the locomotive at the time of this collision. The other person was the train engineer, James Hamilton. Both were eye-witnesses to the event in question. Both gave evidence at the trial.

[69] Mr. Hamilton testified that he gave a statement to the CP officer on the scene, Kristian Iversen.

[70] During cross-examination, Mr. McMillan too said he gave a statement to Cst. Iversen at the scene. He said he had no doubt about giving a statement. He was with Cst. Iversen in his vehicle for 20 to 25 minutes and gave him a detailed recollection of the events. He did not receive a copy of his statement. At the preliminary hearing he found out his statement was lost.

[71] On re-examination, Mr. McMillan said Cst. Iversen was writing on a pad when the officer was asking him questions. Mr. McMillan did not recall if he was shown what was being written, cannot recall if he was asked to read it, and does not believe he signed it.

[72] Mr. McMillan said when the train came to a stop, he grabbed the first aid kit and went back to the vehicle. He was the first and only responder there initially. He found the minivan badly damaged. He removed three of the children including two lifeless bodies of little girls. He performed CPR on them. At trial, Mr. McMillan choked up when giving this evidence and a short break was take to accommodate him.

[73] Mr. McMillan said he gave a statement to the OPP eight or nine days later.

[74] With regard to the potential for collusion or contamination, Mr. McMillan said he rode back to London with Mr. Hamilton when they were relieved that afternoon by a replacement crew. During the ride back, the two recounted “briefly” details of the accident. According to Mr. McMillan, he said what he remembered and Mr. Hamilton did too. Mr. McMillan remembered that he told Mr. Hamilton his opinion that the minivan might have got across if it had not fishtailed. Mr. McMillan also told Mr. Hamilton about going back to the minivan. Mr. McMillan said Mr. Hamilton told him the driver made eye contact with him and shrugged, leading Mr. Hamilton to conclude the driving was on purpose. Mr. McMillan said they both were in shock and they were quiet the majority of the ride home.

[75] Kristian Iversen did not testify at the trial but did testify at the motion voir dire. He is a sworn police officer for the Canadian Pacific Police Service. At the time of the event in question, Cst. Iversen had been an officer for approximately eighteen months. He responded to the scene alone. He said this was his first fatality and the statement he took from Mr. Hamilton was his first statement taken as a police officer. He said he had no training in fatality cases. Cst. Iversen testified that this was an OPP investigation. He acted as a liaison between the OPP and CP Rail. He said his job on the scene was to gather information requested by the investigating agency. He identified his handwritten notes and his case report. Both are in evidence on the motion voir dire.

[76] Before me, Cst. Iversen testified he did not take a statement from Mr. McMillan. He only interviewed him. He did take an unsigned statement from Mr. Hamilton. He was asked to get a statement from Mr. Hamilton by someone from OPP but he could not identify the person. He used OPP form statement paper to take Mr. Hamilton’s statement. He sent that statement to the OPP. Cst. Iversen identified the Hamilton statement which is in evidence.

[77] On cross-examination, Cst. Iversen was impeached on the McMillan statement issue. On two separate dates, Cst. Iversen gave sworn evidence at the preliminary hearing in this matter. On the first day of his evidence, in January, Cst. Iversen testified he was 99 per cent sure he took a statement from Mr. McMillan. At the first day of the preliminary hearing, Cst. Iversen testified he had looked for the statement of Mr. McMillan but could not find it. He said he did not know where it was. Cst. Iversen’s explanation for the inconsistency with his voir dire evidence was a lack of preparation, he was surprised to be called as a witness that day.

[78] On the second day of his preliminary hearing evidence in March, Cst. Iversen continued to maintain he took a statement from Mr. McMillan and it was lost. He did not claim any lack of preparation but merely said that was his memory at the time. He said his memory is better now. His present memory is from his notes. Cst. Iversen testified he has no notes of taking a statement from Mr. McMillan but does have an entry for taking a statement from Mr. Hamilton.

[79] Cst. Iversen continued to maintain that he did not take a statement from Mr. McMillan. He said Mr. McMillan was “shook up” and told him how he grabbed the first aid kit and performed CPR on the kids.

[80] Cst. Iversen testified what Mr. McMillan said to him was included in the narrative of his report.

[81] In pertinent part, the notes of Cst. Iversen reveal the following:

An unattributed narrative at page 76:

“ran back vehicle driver moaning driver one child moaning 4 kids 3 in car seats male driver responsive older girl unresponsive middle row older girl & infant, back boy & girl. Two girls unresponsive drivers side began CPR on all 3 kids. No pulse on either girls. Pulled all 3 out. 3 in car seats [unreadable] fatal injuries middle.”

An entry without a time at page 81:

“OPP request engineer give written statement”

[82] Also at page 81 the following entries are subsequently made:

“late entry” [out of sequence]

“13:36 took statement from Jim Hamilton train engineer”

[83] In pertinent part, the narrative portion of Cst. Iversen’s written report, at page 14, reveals the following:

Arrived 10:26

At 10:34 “interviewed” conductor Chris McMillan

“he advised once the train came to a complete stop he grabbed the first aid kit from the engine and made his way to the vehicle. Once on the scene conductor Chris McMillan advised he was the first responder, and there were four children in the vehicle, three of them were in car seats and one adult male. He then pulled three of the children from the car seats out of the vehicle. At that point Fire and Ambulance were on scene but on the North side of the road and the vehicle was on the South side. The conductor and train engineer Jim Hamilton then ‘cut’ the train in half so emergency personnel could attend to the victims.”

At 11:02 Cst. Iversen spoke to train engineer Jim Hamilton

“he advised that the minivan was travelling Southbound on Strong rd. Train 235-09 was traveling Westbound from London-Windsor at approximately 49 mph. Once the train approached the crossing Mr. Hamilton noticed the vehicle tried to slow down and at 0941Est Jim Hamilton advised that he heard a noise ‘and then the van disappear.’ Jim then put the train into emergency stopping the train. He also stated that his headlight was on, his horns and whistles were activated and ditch lights were on as well. Mr. Hamilton advised that he stayed with the engine to communicate with Rail Traffic Controller during the event, and Conductor Chris McMillan went to the vehicle.”

“At 1336 Est CST Iversen conducted an interview with train engineer Jim Hamilton and he provided a statement of events of what happened. Cst. Iversen forward the statement on to lead investigator OPP Cst Brad Williamson.”

At 1357 Est train re-crewed and headed to Windsor

Both engineer and conductor had no injuries but were “shaken up” from collision

Cleared scene at 1536 Est

[84] The hand-written unsigned statement of Mr. Hamilton by Cst. Iverson is facially dated June 10, 2012 and shows a start time of 1336 and an end time of 1358.

Principles Applied

[85] As an eye-witness, it is uncontested that any statement from Mr. McMillan about this event would be relevant and subject to disclosure. What is disputed is the existence of the statement.

[86] Cst. Iversen testified before me that he did not take a statement from Mr. McMillan. He did not waver from that position. That said, whenever a witness gives contradictory statements under oath on a material issue, caution must be taken before accepting the evidence of the witness. Before me is a relatively young and inexperienced police officer. But I do not consider either youth or lack of police experience valid reasons for not taking the oath seriously. Nor am I impressed by the explanations of the officer. Thus, I am compelled to look for other confirmatory evidence, if it exists.

[87] I find the evidence of Mr. McMillan, in this regard, of limited assistance. He said he gave a statement to Cst. Iversen but had no memory of ever seeing a written statement. He does remember Cst. Iversen writing while he was talking. Thus, whether Cst. Iversen was taking a written statement or simply taking notes during the interview is beyond the knowledge of Mr. McMillan. I find the unattributed notes of Cst. Iversen provide the answer. These notes are a narrative of what only Mr. McMillan knew because he was the first responder to the minivan.

[88] In addition, I find confirmation that no statement was taken from Mr. McMillan by Cst. Iversen from reviewing his notes, his report, and the Hamilton statement. It is clear what prompted the taking of the Hamilton statement was a direct request from the OPP. Indeed, the Hamilton statement was taken on an OPP form. There is an entry of the statement of Mr. Hamilton both in Cst. Iversen’s notes and his report. There is no entry of any statement from Mr. McMillan. Further, I accept the evidence of Cst. Iversen that Mr. McMillan was “shook up”. I watched Mr. McMillan give evidence before me. Even after many years, it was difficult for the man to give his evidence. I understand that the giving of a formal statement from Mr. McMillan would have been very difficult at best so shortly after the traumatizing events. I am sure Mr. Hamilton was traumatized too but not to the same extent as Mr. McMillan. Mr. Hamilton did not go back to the minivan and remove the lifeless bodies of the children.

[89] With this confirmatory evidence, I accept the evidence of Cst. Iversen that he did not take a statement from Mr. McMillan. I find Cst. Iversen simply made notes in his notebook while Mr. McMillan talked. I find that no statement was taken from Mr. McMillan by Cst. Iversen.

[90] This ends the issue: there being no statement, there is nothing to disclose.

The Original Black Box And The Original Train Video

Positions of the Parties

Defence

[91] The defence argues that neither the hard-drive from the train’s black box nor the hard-drive from the train’s camera were preserved and they have since been destroyed. The defence asserts that CP was in charge of preserving and collecting the evidence and, in addition, they had a regulatory duty to preserve evidence in this serious collision. The Crown and the police had a duty to make reasonable inquiries and to ensure that CP was preserving evidence of the collision. These failures to preserve have deprived the accused of his right to make full answer and defence and his right to a fair trial because there is no showing that the evidence from the black box and the video are accurate. The defence says it need not show prejudice to establish a s. 7 breach for non-disclosure.

Crown

[92] The Crown says the data from the train’s black box and the video and data from the train’s camera were downloaded and provided to the defence. All the data has been preserved. There is no evidence that it has been altered or otherwise changed from the original. After the downloads, the original data was taped over and lost as a matter of the standard business practice of the railroad. Neither the police nor the Crown ever had possession of the original black box or train video. There has been no showing how the original data would impact the trial in any way nor has there been any showing of prejudice to the accused by the failure to have the original data.

Facts

[93] This was a freight train minivan collision at a rural crossing. Many of the basic facts were admitted by the defence at the beginning of trial as reviewed above.

[94] The lead locomotive of the train involved in this collision had both an event recorder (commonly called a “black box”) and a video camera which also collected some data. The two systems are not integrated and are manufactured by different companies.

[95] The black box automatically collects and stores raw data concerning the operation of the train. The data collected can be analyzed per second of the train’s operation. The data collected includes train speed, distance travelled, braking, and the engagement of lights, whistles and cruise control.

[96] The black box physically is located in the locomotive usually in its front nose. It is approximately twenty inches deep, twelve inches high, and eight to ten inches wide.

[97] The train camera (also called the “loco cam”) is mounted just above and to the right of the middle split in the locomotive’s front windshield. Its view is straight ahead. The video and data storage equipment is located on the back wall of the locomotive behind the conductor’s seat.

[98] The data from both the black box and the loco cam are overridden over time. The evidence of when the overrides happened slightly differed. Kim Wachs, the retired Manager of Operating Practices at CP Rail, testified the override was between one to two weeks for the black box, usually within seven days. For the loco cam he said it was overridden in about eighty hours. Stefan Gelz, a trainmaster for CP, testified the black box data was overridden in six to seven days and the loco cam data was overridden, he thought, in seventy-two hours. Regardless of the exact numbers, the data on both systems is overridden within days. A download of the data does not delete the data from either the black box or the loco cam.

[99] At trial, I heard from the trainmaster, Mr. Gelz. He responded to the scene of this collision the same day. One of his responsibilities on the scene was to extract the data from both the black box and the loco cam before the train left the scene. He was specifically trained to do so. He extracted the data for each separately in the locomotive. He attached cables from both the black box and the loco cam to his laptop computer. Using separate extraction programs in his computer, Mr. Gelz testified he downloaded the data from each system into his computer. The downloads are stored into data files in his extraction programs in his computer. After the downloads, Mr. Gelz testified he opened the files to make sure he obtained the correct data. He also watched the video in the locomotive to make sure he obtained the video. Back at his office, Mr. Gelz testified he sent these data files to separate places. He sent the video file to a secure site maintained by the CP police. The black box data file was sent to a number of people within CP as an attachment to e-mails. Mr. Gelz continued to store the black box data on his computer. Years later, when Mr. Wachs got involved in the case as an expert, Mr. Gelz sent the black box data file to Mr. Wachs from his original download on his computer.

[100] Neither the black box nor the video recorder were physically removed from the locomotive. According to Mr. Wachs, in the last ten years he knows of only one black box being seized and that was by the Transportation Safety Board (“TSB”). He knows of a hold order being made for another. Mr. Wachs testified he is 100 per cent certain that the data on both systems is overridden by now. According to Mr. Wachs, there is no requirement to remove the black box or the video recorder if the data can be extracted. Mr. Gelz testified the black box stays with the locomotive. He is there only to extract its data; that is what he is trained to do. With regard to the video data, Mr. Gelz testified he can remove the video recorder if he is unable to download the data and has done so in the past. He was able to extract the data in this case so he did not need to remove the recorder itself.

[101] Mr. Gelz testified that he showed the video two days later to a representative of the TSB at their request. The defence introduced, as an exhibit, a TSB “Deployment Notice” dated June 11, 2012, which stated: “The Transportation Safety Board of Canada (TSB) is deploying an investigator to the site of a collision between a motor vehicle and a freight train in Lakeshore, Ontario. The TSB will gather information and assess the occurrence.” I have no evidence that TSB was otherwise involved.

[102] Cst. Brad Williamson testified that he received the black box data sheet four days after the collision, on June 14, 2012, per the request of his Staff Sergeant.

[103] Mr. Wachs was accepted as an expert witness and allowed to give opinion evidence on two issues: 1) the interpretation and analysis of the train event recorder (black box) data including its relation to the train video recorder; and 2) CP Rail protocol including its rules and regulations.

[104] Mr. Wachs testified that he received the video and its data from the CP police and the black box data file from Mr. Gelz. They are different systems manufactured by different companies. They are not integrated. He examined and compared the two and concluded that the data refers to the same incident; the events essentially match up. Mr. Wachs did notice a time difference of 7 seconds and opined that the black box time is more accurate. The time difference, according to Mr. Wachs, is because they are two different systems with separate manufacturers.

[105] According to Mr. Wachs, the raw black box data cannot be changed, corrupted or tampered with. The data is embedded in the downloaded file. Mr. Gelz testified, that as far as he knew, the black box data cannot be changed.

[106] The CP police officer on the scene, Cst. Kristian Iversen, testified on the motion voir dire that he had no training in preserving a black box and that was not his responsibility.

[107] The accused, Andrew Williams, testified at trial. He was shown a clip from the train video showing the minivan just before the collision. From that video clip he identified his minivan and himself as its driver.

[108] The information in this case and the arrest of Mr. Williams were on July 30, 2013. Mr. Williams’ current counsel, Ms. Joy, was not his original counsel. Ms. Joy requested disclosure on December 13, 2013. It requested “all information in your possession”. The preliminary hearing commenced on January 30, 2015. On January 29, 2015, the eve of the preliminary hearing, the defence made a disclosure request which included:

• This is extremely important. This train, that is the subject matter in question, had a black box (proper term: event recorder).

• The black box indicate speeds, whistles, etc. How come this, most critical piece of disclosure has not been provided to the defence.

• We require the manufacturer and the model of the black box.

• I do not have any notes that indicate the preservation of the black box, the contents of the black box and whether or not OPP seized it. Where is it now?

• All I know as per Chris MacMillan’s statement, that his manager, whose name is not listed, attended, seized the black box and downloaded the data from the black box.

• Who is the manager? When and where was the data downloaded. How was the integrity and continuity preserved, was it videotaped and where is the black box now?

• It appears that we are missing portions of the video as well. Our video does not include a time stamp.

[109] On January 30, 2015, the day of the start of the preliminary hearing, the defence made another “black box” disclosure request which included:

1. Make and model

2. Serial # of event recorder

3. Protocol for downloading in the event of an accident. Also, who is in possession of the event recorder?

4. Why is there no time and date stamp on the video?

5. There is no video counter to ensure that the video is intact with no interruptions or deletions.

[110] During the trial, the defence made oral assertions of adding grounds to the motion for stay including for the lost or destroyed black box and train video.

[111] On December 23, 2016, the defence filed its Notice of Amended Application formally adding grounds to its original motion to include the original black box hard-drive and the original video and data from the train camera.

Principles Applied

[112] The issue before me concerns the failure to preserve and disclose the original black box hard drive and the original video and data from the train camera. It is uncontested that both are destroyed and were not disclosed to the defence before they were overridden. Did this failure constitute a s. 7 breach?

[113] To answer this question, I follow the approved approach for lost evidence summarized in Bero, at para. 30.

1. Are they relevant evidence in the possession of the Crown?

a. relevant evidence

[114] Without question both requested pieces of evidence satisfy the disclosure relevancy threshold because both contain information on the collision in question.

b. possessed by the Crown

[115] There is no evidence that the original black box hard drive and the original video and data from the train camera were ever in the possession of the Crown, the OPP, or the CP Police. It is clear the Crown disclosed what it had, copies of the downloaded data from the black box and the train camera. That is what it was obligated to do.

[116] However, the defence asserts, in essence, that CP Rail was acting as an agent for the police in preserving and collecting evidence of the collision. Because of this agency relationship, the same disclosure obligations apply to CP Rail here.

[117] Although there is authority for applying disclosure obligations on third parties acting as a police agent in possessing an item, see Prosa (CFS and blood samples), there is no evidence that there was an agency relationship between the police and CP Rail in this case. After the extraction of the data from both systems, the original data simply was taped over within days in the normal course of running a railroad. I have no evidence that the OPP or the CP Police delegated evidence collection or preservation to CP Rail. I have no evidence that the police ever asked CP Rail to hold or preserve the original black box or video data.

[118] I find that neither the Crown nor the police ever possessed the original black box or video data. I further find that CP Rail never acted as an agent for the police or the Crown in this case.

2. Did the Crown have the duty to preserve the originals?

[119] Both the Crown and the police have the related duty to preserve the fruits of the investigation. La, at paras. 17 and 20. “The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant.” La, at para. 20. Moreover, although the Crown has no obligation to canvass the world on every case, it does have the duty to make inquiries if it is put on notice of the existence of relevant information. McNeil, at paras. 48-49.

[120] I have no evidence before me that in the few days before the overriding of the original data here the Crown or the police were on notice of the relevancy of the original data from the black box or the video recorder. The police did ask for and receive, on June 14, 2012, a copy of the black box downloaded data. I have no evidence when and how the Crown obtained the video. I find the conduct of the police in this case under the circumstances to be reasonable. I do not find that the failure of the police to freeze or seize the originals in this case to be unreasonable.

[121] Alternatively, the defence asserts that CP Rail had an affirmative duty to preserve the original black box and video recorder data and by its failure have deprived Mr. Williams of his right to a fair trial.

[122] The first part of the claim generally is accurate, all railroads have a regulatory duty to “preserve and protect any evidence relevant to the reportable accident”. See Transportation Safety Board Regulations, S.O.R./92-446, s. 9(1). “Reportable accidents” include accidents at crossings and fatal accidents. See Transportation Safety Board Regulations, s. 2. Whether the downloading of the data equals preservation in this context has not been decided. I did hear evidence from Mr. Wachs that the TSB has the authority to seize the black box and has done so at least on one occasion in the last ten years. I have no evidence that they did so in this case. The evidence before me is that a representative from TSB attended at the office of Mr. Gelz and watched the video. There is no evidence the TSB was otherwise involved in this collision.

[123] Although I believe that a faithful extraction of the data from the black box and the video recorder satisfies this regulatory preservation duty, I reject the defence position on a more basic ground. CP Rail has no obligation to Mr. Williams to preserve any evidence from the collision. CP Rail is a private party and is not an agent of the Crown or the police. Regulatory obligations on a private business do not extend rights or privileges to an accused in a criminal case.

3. Was there a right to have the originals produced?

[124] The law is clear that there is no absolute right to originals. It is the information that is important and is to be disclosed, not the original vehicle containing the information. When the originals are not available and they had been in the Crown’s possession, then the Crown should explain their absence. If the explanation is satisfactory, the Crown has discharged its obligation unless the conduct which resulted in the absence or loss of the original is in itself an abuse of process. Stinchcombe #2, at para. 2.

[125] I agree that an intentional tampering with evidence to either defeat a disclosure obligation or to defeat justice is a serious abuse which may be so prejudicial to the accused’s right to full answer and defence as to mandate a stay even if not committed by the Crown. See R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80. I also agree that if the copies offered had been altered in a material way, this could mandate the need for the originals. But where is the evidence of that in this case? Where is the evidence of intentional destruction of evidence for the purpose of obstructing justice? Or, indeed, where is the evidence of inadvertent alteration?

[126] In short, there is no direct evidence of such serious misconduct or unintentional alteration. Instead, the major defence thrust is the assertion of claimed weak continuity evidence for both the black box and the video recorder data. As for proof, the defence strongly asserts that the defence has no onus; it is the Crown’s onus to prove continuity. Although I have ruled on the admissibility of the data and the video in the trial, and hereby reaffirm that ruling here, I do have to re-examine the continuity issue for weight when deciding the case proper. I also believe it is appropriate to examine some of the related issues in this abuse of process context: the accuracy of the copied data, the use of Mr. Wachs’ opinion evidence, and the onus question.

a. accuracy of the copied data

[127] The defence challenge to the accuracy of the data we have is interesting given the conduct of the defence. The defence used the black box data to challenge the evidence of the train engineer, Mr. Hamilton, regarding both when he commenced blowing the whistle, whether the train was in cruise control mode, and when he braked.

[128] The video we have shows the minivan approaching the crossing on a rural road in farmland. It is short in length. Again, the defence used the video to challenge very damaging evidence from Mr. Hamilton that shortly before the collision the driver looked up at the locomotive, shrugged his shoulders, and went forward suggesting he was trying to outrun the train. The defence put to Mr. Hamilton, and he agreed, that the shrugging of the shoulders and the dipping of the front end of the minivan were not captured on the video. Moreover, and very importantly, during Mr. Williams’ evidence he admitted the minivan in the video was his minivan and he identified himself as the driver in the video.

b. Mr. Wachs’ opinion evidence

[129] During submissions on the stay motion, defence counsel for the first time challenged the evidence of Mr. Wachs that the data was tamper-proof as being beyond the scope of his expertise and argued that it should not be considered.

[130] Although the timing of the objection is less than optimal, I do consider it now. Mr. Wachs was accepted by me as an expert witness authorized to give opinion evidence, in pertinent part, on the “interpretation and analysis” of the black box data. Thus, the question arises: does his opinion on the sanctity of the data extracted from the black box fall within the scope of the authorized areas? I am keenly aware of my responsibility to ensure that an expert does not stray beyond the scope of the recognized expertise.

[131] I agree with the defence. Expertise in the interpretation and analysis of data extracted from a machine is not the same as expertise in the proper functioning of the equipment itself or in the inviolability of the data retrieved. Mr. Wachs may be an expert in the latter but I received no evidence in that regard and I did not qualify him to give such evidence. Accordingly, I will not consider Mr. Wachs evidence on that issue nor will I consider the like lay-person’s opinion of Mr. Gelz.

c. onus

[132] It is accurate that the Crown has the burden of proving continuity in the trial proper. It is also accurate that the accused does not have to show any prejudice to establish a s. 7 breach for non-disclosure. Dixon, at para 22. That does not end the matter, however. Depending on the issue in this area, the onus shifts. Where the Crown has met its disclosure obligations, for the defence to establish a s. 7 breach for lost evidence, the defence must show actual prejudice. La, at para. 25. Moreover, except in non-disclosure cases, the onus is on the applicant to establish a Charter breach. O’Connor, at para. 68.

4. Has the Crown reasonably explained the absence of the originals?

[133] Here, as found above, the Crown never had possession of the originals. But even assuming it did, I find the explanation for the loss of the originals, normal taping over in the course of the business, entirely reasonable.

[134] In making this finding, I have made the necessary considerations as set forth by the Supreme Court in La at para 21:

In order to determine whether the explanation of the Crown is satisfactory, the Court should analyze 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.

[135] Here, it is common ground that the importance of the black box and the video recorder is in the data, not in the physical vessels that happened to contain the data. Indeed, the concern of the trainmaster, on arriving at the scene, was the extraction of the data. Having successfully downloaded the data from both systems, the black box and the video recorder were released to continue on the railroad and eventually to get taped over in the normal course of business. I heard no evidence from any of the officers on the scene that they even turned their mind to the black box or the train video. Indeed, neither of the two officers I heard from, Williamson or Bortolon, had ever investigated a train fatality. That said, I find nothing unreasonable in the normal business destruction of the original black box data and video data of the collision that day after the data had been extracted and saved.

5. Relevancy Revisited

[136] In this context, the court should consider the relevancy of the lost evidence as it was perceived at the time. The more relevant the evidence the more care should have been taken to preserve it.

[137] By the very nature of the black box data, its information is solely on the operation of the train: its speed, when it blew the whistle, when it braked, etc. In a criminal driving case like this one, such information is of little help to the defence because the focus of the accusations is the driving of the accused not the operation of the train. This is not a civil case in which contributory negligence may be a live issue. Moreover, the law on criminal causation is very broad: the conduct of the accused does not have to be the sole cause of the accident, or even the major cause, but it must be at least a significant contributing cause. R. v. Smithers, 1977 CanLII 7 (SCC), [1978] 1 S.C.R. 506; R. v. Nette, 2001 SCC 78, [2001] 3 S.C.R. 488, at para. 71.

[138] In sum, I find the Crown never possessed the original black box or the original video recorder. Moreover, I find the explanation for their loss of both the original black box and the original video recorder is satisfactory, taking into consideration all the circumstances surrounding the losses. I specifically find that these losses were not through unacceptable negligence.

The Minivan

Positions of the Parties

Defence

[139] Originally, the defence complained of the loss of the driver’s door by the police. The door was relevant to the issue of whether the window of the door was up or down at the time of the collision. However, mid-trial the defence withdrew this dimension to the motion.

[140] Now, the defence argues the minivan was improperly secured and exposed to the elements which could have resulted in an inferior mechanical inspection. Defence counsel added that if this was the only issue, it would not be brought.

Crown

[141] The Crown acknowledges the minivan was not properly stored and was exposed to the elements. However, this exposure did not materially impact the conclusions drawn from the mechanical inspection of the minivan. Thus, there is no showing of any prejudice to the accused.

Facts

[142] A number of facts related to this issue are uncontested. Mr. Williams did brake before reaching the railroad crossing. The braking effort was insufficient to bring the minivan to a stop before the crossing. The minivan was severely damaged in the collision. The police had the minivan towed to Myers Towing, a private local storage facility which provides space to the police for seized vehicles.

[143] Cst. Brad Williamson testified at trial. He acted in the capacity of a technical collision investigator with regard to this collision. He was on the scene following the collision and inspected the damaged minivan there. He again inspected the minivan at Myers Towing on June 12 and 14, 2012. The minivan was preserved at his request until June 14, 2012, when he advised the detective in charge that he no longer required the vehicle. He did not request a mechanical inspection of the vehicle because he did not believe it was necessary at the time. Now Cst. Williamson believes a mechanical inspection should have been requested. He did not order the mechanical inspection in 2014.

[144] Former Cst. Stephen McEvoy testified at the trial as an automobile mechanical expert. He was qualified as such and permitted to give expert opinion evidence on the mechanical condition of the minivan specifically with regard to its brakes, steering and tires. Cst. McEvoy’s report was introduced into evidence at trial. At the request of OPP Det. Paul Bawden, Cst. McEvoy inspected the minivan at Myers Towing on April 11, 2014. The officer found the minivan outside in the elements. He stated in his report, “The vehicle had been left unsecure and outside. The elements played some of a role in the condition of the vehicle when it was inspected.” At trial, Cst. McEvoy testified that some of the car components were rusted which he took into consideration during his evaluation. His final conclusion in his report reads as follows: “In my opinion the vehicle would have been able to steer and stop during the collision. The damage to the braking system and suspension were all collision related.”

[145] The accused, Mr. Williams, testified at trial that he thought his brakes worked fine and that he would not have driven if he thought otherwise.

[146] The filing of the information in this case and the arrest of Mr. Williams were on July 30, 2013. Mr. Williams’ current counsel, Ms. Joy, was not his original counsel. Ms. Joy requested disclosure on December 13, 2013. It requested “all information in your possession”. Counsel made a supplemental disclosure request on February 5, 2014, which, in part, asked, “could you please advise if the Caravan or carseats from the accident have been scrapped?”

[147] Ms. Joy’s associate, Ms. Janta, testified at the motion voir dire and said that the minivan was still being stored at Myers Towing and Mr. Williams was paying for the storage. She believed the minivan was available to the defence.

Principles Applied

[148] The Crown appropriately concedes the minivan was left out in the elements and not stored properly while in the possession of the police. I agree. The damaged minivan was relevant evidence for which the police had an obligation to preserve. Moreover, what little explanation I have as to why the minivan was not preserved properly shows the type of indifference condemned by the Ontario Court of Appeal in Bero, at para. 39, more than ten years before this collision. Although there is no evidence of any improper motive, indeed, like Bero, the evidence points to a failure to look beyond the perceived needs of the police. This was a serious departure from the duty to preserve and constitutes an abuse of process.

[149] Thus, I must turn to the appropriate remedy.

[150] A stay of the proceedings is not appropriate. I have nothing before me that this failure to preserve has caused harm to the accused’s ability to make full answer and defence that cannot be otherwise remedied. Further, I do not find the integrity of the judicial process to be compromised by the continuation of the case. The only evidence I have before me is that the vehicle’s condition did not negatively impact the mechanical inspection or its conclusions. This evidence is uncontradicted and the defence have access to the minivan. Moreover, there is no evidence of any systemic disregard of the police obligation to preserve relevant evidence nor of any intentional or malevolent conduct by the police.

[151] From the evidence and submissions, it appears the only real significance of the minivan evidence to the defence is the condition of its brakes. If the brakes of the minivan were faulty at the time of the collision, especially without the knowledge of Mr. Williams, that fact could be relevant for the defence regarding the mens rea element.

[152] However, there simply is no direct evidence of this and no circumstantial evidence upon which to base an inference that the rear brakes were faulty. Indeed, all the evidence is to the contrary. Accordingly, I find the police failure to properly preserve the minivan in the circumstances of this case caused no prejudice. Having found no prejudice, there is no need to remediate. Thus, no remedy is appropriate here.

The 911 Call To Rail Traffic Control (“RTC”)

Positions of the Parties

Defence

[153] The defence argues that the train engineer’s 911 call to and subsequent conversations with CP Rail’s Rail Traffic Control (“RTC”) in Montreal after the collision were taped but were neither preserved nor disclosed. The defence asserts that CP was in charge of preserving and collecting the evidence and, in addition, they had a regulatory duty to preserve evidence in this serious collision. The Crown and the police had a duty to make reasonable inquiries and to ensure that CP was preserving evidence of the collision. Moreover, there is no sworn evidence that the tapes were lost or destroyed. This failure to preserve has deprived the accused of his right to make full answer and defence and his right to a fair trial.

Crown

[154] The Crown argues that CP recordings did exist but were never in the possession of either the police or the Crown. When the Crown learned of the possible existence of these recordings, the Crown requested them from CP but CP advised that the tapes were lost and could not be located. The Crown asserts that it met its disclosure obligations. Furthermore, the Crown says that it is unknown whether the recordings would help the defence or not.

Facts

[155] Immediately following the collision, the train engineer, Mr. Hamilton, called CP Rail’s RTC in Montreal to report the accident and to get emergency services to the scene. Thereafter, there was ongoing communications between the RTC and the engineer. According to Mr. Hamilton, the tragedy was discussed. It is now conceded that these communications were recorded at the RTC. The CP recording has not been disclosed. CP has advised the Crown that the recording no longer exists.

[156] The defence filed materials on the voir dire including a booklet entitled “Supplementary Charter Materials” which was accepted for consideration on the motion. Therein were four written supplemental disclosure requests dated February 5, 2014, January 29, 2015 (two), and January 30, 2015. None request the recordings at issue here. Tab 7 of the booklet contains a list of disclosure issues raised during the preliminary hearing. One issue states, “911 call to RTC wasn’t disclosed to defence by the time engineer questioned * Transcript of April 1, 2015, page 30”.

[157] A review of pages 29 and 30 of the preliminary hearing transcript of April 1, 2015, shows the following questions to and answers from the train engineer, Mr. Hamilton:

Q. Okay, first thing you did was call Montreal because that’s the protocol, right?

A. Yes.

Q. So even though you might want to call 911 first, you can’t. Your worker’s instructions are you call them first, right?

A. That is a 911 call. That’s how you do it on a train, 9-1-1.

Q. Right and the 911 goes to …

A. Montreal.

Q. … Montreal?

A. At that time.

Q. Right, so my whole point is this, is the 911 on a train isn’t the same 911 I would call on my cell phone. If I call 911 I’m not getting Montreal?

A. No, I don’t, no.

Q. Your program, CP has a program that the 911 distress goes to …

A. The rail traffic controller.

Q. Right, now as it relates to that tape, you know that that is all recorded? You’re aware of that?

A. What tape?

Q. When you’re calling in. Any of the questions and answers being given.

A. What tape are you talking about?

Q. When you call in for 911 and first report the incident, sir.

A. Are you talking about the RTC Centre’s …

Q. Yes.

A. … tape?

Q. Yes.

A. Okay.

Q. Have you heard it?

A. That it’s been, it’s recorded? Yes.

Q. You know it’s recorded, right?

A. Yes.

Q. Okay and I haven’t had that provided yet, Your Honour. I’ve asked for it. So I’m hopeful that that obligation will be met.

[158] A number of e-mails relating to this issue were admitted on the voir dire. One dated April 13, 2015 from OPP Det. Paul Bawden to CP Police Cst. Kristian Iversen asked:

Would you be able to obtain the locomotive Engineer’s ‘911’ call to dispatch requesting assistance and provide it to me? Either burnt to a CD and I can meet you to pick up, or emailed if the file is not too large.

The Court is requesting the recording – next court date is June 26^th, but I would need it by middle of May?

[159] The next e-mail is from Cst. Iversen to Det. Bawden dated April 25, 2015. It says:

I’ve contacted the CP technical support office in Calgary, and they do not have that recording. The engineer would call the RTC (Rail Traffic Controller) which is part of railway operations and not the Police dispatch center.

[160] Then I have an e-mail prefaced by “DISCLOSED TO CROWN AND DEFENCE 12 May 2015” dated May 12, 2015 from Det. Bawden. It reads as follows:

Detective Bawden on the request of Crown Magri contacted Constable Kristian Iverson of the CP police to ascertain the whereabouts of the 911 phone call made by Engineer Jim Hamilton.

April 28^th, 2015 Cst Iverson contacted DC Bawden by phone and advised there is no recording of the call made by Hamilton. Cst Iverson advised the following:

• Jim Hamilton would call the Radio Traffic Controller which is part of the railway operations and has nothing to do with the CP Police dispatch centre * The rail traffic controller would then contact CP Police Cst Iverson advised he spoke to CP technological support and was advised there is no archived recording of the phone call made by Jim Hamilton and the rail control centre.

With the above information obtained DC Bawden advises the court there is no recorded “911 call” between Jim Hamilton and the rail control centre he contacted at the time of the collision.

[161] During the trial, the defence made oral assertions of adding grounds to the motion for stay including for the lost RTC recording.

[162] On December 23, 2016, the defence filed its Notice of Amended Application formally adding grounds to its original motion to include the RTC recording.

[163] At the voir dire, Cst. Iversen testified. He was asked about the RTC recordings and advised that he was told the RTC moved from Montreal to Calgary after the incident. Somehow, so he was told, this recording and other recordings are missing, misplaced or stolen. Cst. Iversen emphasized that he is only a messenger with regard to this information.

[164] On December 29, 2015, the trial Crown asked Cst. Iversen to check again to see whether the recordings had been found. The e-mail communications on that day were filed on the motion. The first message is from Cst. Iversen to a number of people and is referenced “Fatality Court Case Windsor Sub June 10, 2012” and states:

Apologize for the late request but I need these questions answered immediately.

1. At the time of this incident was the emergency call from the engineer (Jim Hamilton) to the RTC recorded?

2. If it was recorded do you have the recording? And if not what happened to it?

3. And does someone scribe these incidents out on paper or email word for word.

Just need quick straight to the point answers yes/no and if we have the recording.

It’s a major court case and need your help with this today.

[165] Selina Landau from CP “OC Support” in Calgary responded within two hours to Cst. Iversen’s request with the following e-mail:

The directors who came from Montreal are looking through files and old emails to see if they have any of the information, but you probably won’t have the answer to this today.

I have left a message with Sean O’hara so I can find out if there are recordings from the Montreal office from 2012, and if so how to access those recordings.

Incidents are scribed on a case by case basis depending on what is asked for by the General Managers, usually in cases of rules violations.

[166] The next e-mail is unattributed, about two hours later, and is a reprint of the initial questions with the following short answers beside each: 1. unknown; 2. unknown; and 3. possibly.

[167] Selina Landau sent another e-mail the same day. It reads as follows:

I sat down with Gilles, and couldn’t find anything in their old email or in their folder on the server.

Marc – I don’t know if by any chance you still have anything on this incident (the old recordings, transcription of emergency call), but it you do could you forward it on?

Sean – are you able to access the recordings from this incident?

[168] The final e-mail of that day submitted to the court is from Cst. Iversen to Mr. Costa. He advised Mr. Costa that there was a recording, it had not been transcribed, and he had left a message for Sean O’Hara who would have access to the recording if it was still archived but he is on vacation.

[169] On January 4, 2017, at the end of the evidence of Cst. Iversen and after discussion with counsel, I directed the Crown to get the answer from Sean O’Hara through Cst. Iversen on whether the recording existed. The answer came that afternoon: the recording is gone. Mr. O’Hara’s e-mail to Cst. Iversen reads as follows:

The status of the NICE recording system from Windsor station in Montreal has been lost or misplaced. The NICE recorders have been lost from either the movement of RTC from Montreal to Calgary or the sale of the Windsor Station all together. In short, we have lost the entire NICE system with all recordings and cannot retrieve the audio recordings you would like to have at this location.

The entire system most likely had a setup of 1 or 2 hard drives where we stored on one drive for short term audio recordings and then the other drive for long term recordings. All audio recordings have been lost.

If any clarification is required, feel free to contact me.

[170] Later that same day, defence counsel telephoned Sean O’Hara in Calgary and tried to talk with him about the recording. The associate of Ms. Joy took the stand and testified that after they explained who they were and what they wanted they were put on hold. A person who identified himself only as “Kevin” came back on the line and, after counsel explained that he did not have to answer any questions if he did not want to, declined to answer any questions.

Principles Applied

[171] The issue before me concerns the non-disclosure of the RTC recording. It is uncontested that the RTC taped the 911 call from the train engineer, Mr. Hamilton, and their subsequent conversation. It is uncontested that the RTC recording has not been disclosed. Did this failure constitute a s. 7 breach?

[172] To answer this question, I again follow the approved approach for lost evidence summarized in Bero, at para. 30.

1. Is the relevant evidence in the possession of the Crown?

a. relevant evidence

[173] Without question the contemporaneous recording of the initial reporting of the incident and the subsequent conversation about it does satisfy the disclosure relevancy threshold. The recording contains the initial words of an eye-witness to the collision itself by the driver of one of the two vehicles involved.

b. possessed by the Crown

[174] There is no evidence that the RTC recording was ever in the possession of the Crown, the OPP, or the CP Police. In this regard, it is clear the Crown had nothing to disclose.

[175] However, like with the black box/video issue, the defence asserts that CP Rail itself was acting as a criminal investigator. In essence, says the defence, CP Rail was acting as an agent for the police in preserving and collecting evidence of the collision. (During this argument, the defence concedes, and I agree, that CP Rail and CP Police are not the same entity. The defence further concedes, and again I agree, that CP Rail is a private corporation and not an agency of the government.) Because of this role as a criminal investigator, because of this agency relationship, the defence says the same disclosure obligations apply to CP Rail in this case.

[176] I reach the same conclusion I reached above on the black box/video issue: I have no evidence that the OPP or the CP Police delegated evidence collection or preservation to CP Rail. I have no evidence that the police ever asked CP Rail to hold or preserve the RTC recording. And I have no evidence CP Rail acted as a criminal investigator in this case.

[177] Accordingly, I find that neither the Crown nor the police ever possessed the RTC recording. I further find that CP Rail never acted as a criminal investigator in this case or as an agent for the police or the Crown.

2. Did the Crown have the duty to preserve the RTC recording?

[178] As reviewed above on the black box/video issue, both the Crown and the police have the related duty to preserve the fruits of the investigation. Moreover, although the Crown has no obligation to canvass the world on every case, it does have the duty to make inquiries if it is put on notice of the existence of relevant information.

[179] I find that neither the Crown nor the defence were aware of the existence of the RTC recording until the preliminary hearing in 2015, more than two years after the event.

[180] When the RTC recording was requested during the extended 2015 preliminary hearing is contested. During submissions, defence counsel said she “clearly” “on the record” requested the RTC recording in January. There is no defence written request for the RTC recording in the January or February supplemental disclosure requests provided. The only arguable reference to the RTC recording in the preliminary hearing for January 30, 2015, is a reference to a “voice recorder” in the “Disclosure Issues” filed in support of the motion. But a review of the context of that request reveals that it is related to the black box being requested. Moreover, a request made in the written January 29, 2015 supplemental request states: “The newer trains are to be equipped with voice recorders to record inside the car. Was there one for this train?” From this I find that the “voice recorder” being requested does not refer to the RTC recording.

[181] The first specific RTC recording question in the record is noted in the defence “Disclosure Issues” for April 1, 2015: “911 call to RTC wasn’t disclosed to defence by the time engineer questioned” citing page 30. The transcript of that date does verify the request was made during the cross-examination of Mr. Hamilton. Moreover, defence counsel also asserted then, “I’ve asked for it.” It is unknown whether the statement was meant to refer to a general disclosure request or a specific request for the RTC recording. If it was the latter, I do not have it before me. And I certainly do not have before me a “clear” “on the record” defence request for the RTC recording.

[182] Accordingly, based on the evidence I do have, I find the first specific defence request for the RTC recording was during the preliminary hearing in this case on April 1, 2015.

[183] I find the conduct of the Crown and the police in this case under the circumstances not only reasonable but commendable. When put on notice of the possible existence of relevant evidence in the hands of a third party they promptly sought it from the third party. Then, midtrial, the Crown again made another effort to confirm the continued non-existence of the recording.

[184] Alternatively, the defence asserts that CP Rail had an affirmative duty to preserve the RTC recording and by its failure have deprived Mr. Williams of his right to a fair trial.

[185] For the same reasons reviewed above on the black box/video issue, CP Rail had no legal obligation to Mr. Williams to preserve any evidence from the collision. Moreover, CP Rail did preserve the RTC recording. The recording was lost inadvertently, along with other tapes, during a move across the country.

3. Has the Crown reasonably explained the absence of the RTC recording?

[186] Here, as found above, the Crown never had possession of the RTC recording. But even assuming it did, I find the explanation for its loss, during the move of the RTC office from Montreal to Calgary, entirely reasonable.

[187] In making this finding, I have made the necessary considerations as set forth by the Supreme Court in La.

[188] One factor is the perceived relevance of the missing evidence at the time. The more relevant the evidence, the more care should have been taken to preserve it. Here, it is unknown whether the recording will help or hurt the defence. Assuming that it contains a statement from Mr. Hamilton which is inconsistent with his trial evidence, the tape certainly could be used to bring the witness back to his original statement or, if not, as impeachment. However, the focus of this trial generally is on the driving of the minivan, not the driving of the train. But Mr. Hamilton does give one piece of evidence which bears directly on the issue of the driving by Mr. Williams. Mr. Hamilton claims the accused shrugged and then went forward leading to an inference that the accused was trying to outrun the train. If accepted, that evidence is very negative to Mr. Williams. Thus, if Mr. Hamilton said something different in the RTC recording, or if he failed to mention it, that inconsistency could make the RTC recording very significant. A reasonable investigative officer would be aware of the potential uses and significance of such a tape.

[189] That said, it appears no one turned their mind to the recording because no one was aware of its existence. Moreover, CP Rail, it appears, did preserve the recording and it was lost inadvertently, along with other tapes, during a move across the country. I accept the explanation from CP Rail as reasonable.

[190] The defence says we don’t know when the tapes went missing and, indeed, if they are missing because we do not have any sworn evidence from any knowledgeable CP Rail official. All that is true but in large part the defence must shoulder the blame. When the Crown has sought evidence from a third party and the third party declines to produce the evidence, the Crown has an obligation to advise the defence so the defence may pursue whatever course it deems appropriate. McNeil, at paras. 48-49. In the face of non-disclosure, the defence cannot be passive but must pursue. Dixon, at para. 37. The defence knew since the spring of 2015 that CP Rail said the RTC recording was missing yet took no formal action until midtrial in very late 2016. Now the defence complains. If the defence did not believe CP Rail that the recording was lost, then a third party records application was available to the defence. Instead the defence chose to be passive. That course of conduct is unacceptable.

[191] In sum, I find neither the Crown nor the police ever possessed the RTC recording. I find that CP Rail was not acting as a criminal investigator in this case nor was acting as an agent for the police. Moreover, I find the explanation for the loss of the RTC recording is satisfactory taken into consideration all the circumstances surrounding the loss. I specifically find that the loss was not due to unacceptable negligence.

Issue Two: Pre-Charge Delay

Positions of the Parties

Defence

[192] The pre-trial delay of approximately 14 months was so great that it affected the fairness of the trial and violated the accused’s rights under ss. 7 and 11(d) of the Charter. The criminal charge was filed only after, and in response to, the family’s civil action against the railroad. The lengthy pre-trial delay was a factor in the loss of the evidence.

Crown

[193] The pre-trial delay in this case is not a violation of any Charter right and thus does not require any remedy. There is no showing of any inability to make full answer and defence nor any showing of any connection between any claimed inability and the pre-trial delay. Furthermore, there is no connection between the filing of the civil suit and the commencement of the criminal action.

Facts

[194] The collision was on June 10, 2012. The filing of the information and the arrest of Mr. Williams was on July 30, 2013. The time between the two events is 13 months and 20 days.

[195] Mr. Williams gave evidence at the trial that he was charged a few months after his wife and children brought a civil case against the railroad for the collision.

[196] The Technical Collision Investigative Accident Report of OPP Cst. Brad Williamson was submitted on April 29, 2013.

[197] The mechanical inspection of the minivan by then OPP Cst. Stephen McEvoy was on April 11, 2014.

Legal Principles

[198] Staying charges based on the mere passage of time would be the equivalent of imposing a judicially created limitations period. R. v. L. (W.K.), 1991 CanLII 54 (SCC), [1991] 1 S.C.R. 1091, at p. 1100. This is not the law in Canada under the common law abuse of process doctrine or under the Charter. L. (W.K.), at p. 1100. As stated by the Supreme Court in L. (W.K.), at p. 1099:

Delay in charging and prosecuting an individual cannot, without more, justify staying the proceedings as an abuse of process at common law. In Rourke v. The Queen, 1977 CanLII 191 (SCC), [1978] 1 S.C.R. 1021, Laskin C.J. (with whom the majority agreed on this point) stated that (at pp. 1040-41):

Absent any contention that the delay in apprehending the accused had some ulterior purpose, courts are in no position to tell the police that they did not proceed expeditiously enough with their investigation, and then impose a sanction of a stay when prosecution is initiated. The time lapse between the commission of an offence and the laying of a charge following apprehension of an accused cannot be monitored by Courts by fitting investigations into a standard mould or moulds. Witnesses and evidence may disappear in the short run as well as in the long, and the accused too may have to be sought for a long or a short period of time. Subject to such controls as are prescribed by the Criminal Code, prosecutions initiated a lengthy period after the alleged commission of an offence must be left to take their course and to be dealt with by the Court on the evidence, which judges are entitled to weight for cogency as well as credibility. The Court can call for an explanation of any untoward delay in prosecution and may be in a position, accordingly to assess the weight of some of the evidence.

[199] This does not mean to suggest that pre-charge delay has no consideration in a ss. 7 and 11(d) trial fairness determination. It does, but not standing alone. The pre-charge delay must impact the fairness of the trial. As stated by Lamer J. in dissent in R. v. Mills, 1986 CanLII 17 (SCC), [1986] 1 S.C.R. 863, at p. 945: “Pre-charge delay is relevant under ss. 7 and 11(d) because it is not the length of the delay which matters but rather the effect of that delay upon the fairness of the trial.”

[200] An accused has the onus of showing a Charter infringement based on pre-charge delay. L. (W.K.), at para. 19. “[I]n the absence of any evidence of bad faith or ulterior motive, there [is] no basis for placing a burden on the Crown to explain the investigative and prosecutorial processes.” R. v. National Steel Car Limited (2003), 2003 CanLII 30223 (ON CA), 63 O.R. (3d) 693 (C.A.), at para. 12. The accused must show actual prejudice that the pre-charge delay led to the lost or missing evidence which impaired his right to a fair trial. R. v. Lee Valley Tools Ltd., 2009 ONCA 387, 264 O.A.C. 213, at paras. 20-33.

Principles Applied

[201] On a motion alleging Charter infringement based on pre-trial delay, the onus is on the accused to show either bad faith or actual prejudice by the delay. The pre-charge delay must impact the fairness of the trial. Simply put, there has been no showing of bad faith or ulterior motive in bringing the charge in July of 2013 nor has there been any showing of prejudice due to the delay. There is no evidence that the charge was laid in retaliation of the civil suit against the railroad. There is no evidence that the delay had any bearing on the timing of the original Williamson report or the mechanical inspection. Moreover, Cst. Williamson supplemented his report to include his calculations with ABS brakes before the trial and the trial proceeded. Thus, I see no connection with the timing of these reports, pre-charge delay, and trial fairness.

[202] Accordingly, I find no bad faith or ulterior motive in the bringing of the charges or in the timing of the charges. I find no prejudice caused by the pre-charge delay. I find no breach of the accused’s right to a fair trial as guaranteed by ss. 7 and 11(d) of the Charter for pre-charge delay.

Issue Three: Preliminary Hearing Committal

Position of the Parties

Defence

[203] The preliminary hearing committal relied upon the faulty original report of Cst. Williamson and thus was a violation of s. 7 of the Charter. The defence asserts that it could not have brought a certiorari application because other evidence was relied upon by the preliminary hearing judge and the application would fail. The defence argues that while this portion of the motion may not be particularly strong, the motion must be assess cumulatively.

Crown

[204] The Crown argues that it is inappropriate to challenge the preliminary hearing committal at trial. Further, said committal was not based solely on this claimed faulty evidence. Moreover, the challenged evidence was not wrong but was based on information Cst. Williamson had at the time. Finally, there is no showing of any inability of the accused to now make full answer and defence at his trial.

Facts

[205] On April 29, 2013, Cst. Brad Williamson released his Technical Collision Investigative Report concerning this collision. Therein the officer made slide to stop calculations based on non-ABS brakes. This was an error. At the preliminary hearing, Cst. Williamson gave evidence based on his erroneous belief the minivan had non-ABS brakes.

[206] Cst. Williamson testified at trial that at the time he mistakenly believed the minivan had non-ABS brakes. (It is uncontested that there is a difference in stopping performance between ABS and non-ABS brakes.) Before trial, Cst. Williamson learned the minivan had ABS brakes and submitted a supplementary report with that adjustment disclosed on November 2, 2016.

[207] The preliminary hearing commenced on January 30, 2015, and continued over eight days through the summer. The reasons for committal were given by the presiding judge, Marion J., on September 24, 2015. Those reasons have been made part of the record on this motion.

[208] The reasons have been transcribed and are nineteen pages in length. In his review of the evidence, Justice Marion, did include the evidence of Cst. Williamson, including his slide to stop calculations, in three paragraphs at pages 13-14. In the analysis portion of the reasons, which begins at page 16, Cst. Williamson was mentioned only once and that was to note the officer was unable to determine the speed of the minivan. There was no reliance on the slide to stop calculations.

Legal Principles

[209] The test for committal at a preliminary hearing is “whether or not there is any evidence upon which a reasonable jury properly instructed could return a verdict of guilty.” United States of America v. Shephard, 1976 CanLII 8 (SCC), [1977] 2 S.C.R. 1067, at p. 1080.

[210] The purpose of a preliminary hearing was explained by the Supreme Court in Skogman v. The Queen, 1984 CanLII 22 (SCC), [1984] 2 S.C.R. 93, at p. 105:

The purpose of a preliminary hearing is to protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process. In addition, in the course of its development in this country, the preliminary hearing has become a forum where the accused is afforded an opportunity to discover and to appreciate the case to be made against him at trial where the requisite evidence is found to be present.

Principles Applied

[211] I fail to understand how erroneous evidence at a preliminary hearing can deprive an accused of a fair trial when the error is discovered, corrected, and disclosed before trial. Moreover, I agree with defence counsel, there was ample evidence, without that of Cst. Williamson, to commit Mr. Williams at his preliminary hearing. Indeed, Marion J. did not rely on the evidence of Cst. Williamson in reaching his committal conclusion. Thus, the committal was not founded on erroneous evidence.

[212] In theory, I can comprehend a potential claim for an intentional, wrongful use of the preliminary hearing under the residual category of s. 7. If corrected before trial, such misconduct would not impact the fairness of the trial but possibly could be considered to be state conduct that was so offensive to societal norms of fair play and decency that proceeding with the trial would be harmful to the integrity of the justice system. Babos, at para. 35. But that circumstance is not this case. The evidence before me here shows only a mistake by a police officer. Mistakes are very far from the type of conduct captured by the residual category.

[213] Accordingly, I find no s. 7 breach and no abuse of process as a result of the preliminary committal here.

Issue Four: Late Disclosure

Positions of the Parties

Defence

[214] The defence says the revised calculations of Cst. Williamson were disclosed the morning he was called as a Crown expert witness at trial. This, according to the defence, was a violation of s. 7 of the Charter. Defence counsel concedes that the issue was raised during the trial and only additional time was requested and given. The defence says the calculations were so important that additional relief is warranted.

Crown

[215] The Crown responds that the material upon which these calculations were based was disclosed to the defence a month before trial. There was no violation of s. 7. If it was late disclosure and was a problem for the defence, then the defence should have sought a remedy of adjournment to review the material before cross-examining Cst. Williamson. The defence did not seek any further adjournment and should not be heard to complain about it now.

Facts

[216] In the morning of the third day of trial, December 7, 2016, before Cst. Brad Williamson took the stand, the defence complained of late disclosure. The defence said it was given amended brake calculations earlier that morning. The late disclosure is in evidence. The requested remedy was time to review the new disclosure before defence counsel was called upon to cross-examine the witness. The Crown said the calculations were done the preceding night and were based on the officer’s supplementary report disclosed the month before, but he agreed to the remedy of time to review. Defence counsel was content for the Crown to commence with the witness, wanted time to review the material before called upon to cross-examine the witness, and indicated she could do the calculations over lunch. Cst. Williamson was called as a Crown witness and questioning began by the prosecution. Cst. Williamson was still on the stand at the conclusion of the court day.

[217] On the next day, shortly before the lunch break, the Crown asked the witness, Cst. Williamson, to calculate train’s distance to impact given its black box speed and its black box time when the train horn was engaged the first and the second time. This request was a basic time-rate-speed calculation. After lunch these new calculations were given to defence counsel. These calculations are in evidence. Defence counsel responded that she could commence her cross-examination but would like more time before she addressed these new calculations.

[218] Shortly thereafter, the Crown finished with Cst. Williamson and it was time for the defence counsel to cross-examine the witness. Counsel advised the court that there were many areas of cross-examination but, as it related to the new calculations, she was consulting with another unnamed person and needed more time. I advised counsel that she should go as far as she could and if she needed more time to just ask. Defence counsel commenced the cross-examination of Cst. Williamson which carried over into the next day. No further relief was sought.

[219] Then, on the morning of day ten of the trial, on December 16, 2016, the court asked defence counsel if the defence was seeking more time before the Crown closed its case. This inquiry was made in regard to the previous defence motions for adjournment which had been denied without prejudice. The court asked if the defence was seeking any more time. The defence said it was seeking no relief.

[220] Defence counsel was not heard from again on this late disclosure issue until the filing of the Amended Notice of Application at the end of the case on December 23, 2016.

[221] Cst. Williamson issued his Technical Collision Investigative Report on April 29, 2013. Page 17 of the report is entitled, “Speed/Time/Distance Considerations”. Therein the officer set forth the slide to stop calculations for the minivan at three hypothetical speeds in kilometres per hour: 60, 80 and 100.

[222] Subsequently, Cst. Williamson wrote an “Investigative Supplementary Report” disclosed on November 2, 2016, which noted that he subsequently learned the minivan had ABS brakes. That fact, he wrote, “would result in a lower friction value or drag factor when braking on a gravel surface as compared to a non-ABS braking application.” For ABS drag factors, the officer used a published paper entitled, “Braking on Dry Pavement and Gravel With and Without ABS” and attached a copy of the article. Using this new information, the officer calculated the time and distance required to stop but only for one set of factors: 80 kph and the average drag factor, 0.495.

[223] The initial calculations disclosed on the morning of the first day of Cst. Williamson’s evidence are hand-written and three pages in length. The first page is entitled, “ABS Caravan Distances Required to Stop”. The second page is entitled, “Caravan Time to Stop”. The third page is entitled, “Train Time/Distance Consideration”. (I heard little concern over the last page which is simple time/rate/speed calculations for the train.) The new calculations on the first two pages are based on three hypothetical speeds in kilometres per hour: 60, 80 and 100. The drag factors used in these new calculations are from the attached article. They are not the average drag factor used in the supplemental report but are 0.42 and 0.55, the highest and lowest drag factors reported in the attached article.

[224] The second calculations disclosure is entitled, “Train Time Distance Calculations”. It is hand-written and one page in length. It was requested by the Crown during direct examination. Specifically, the Crown asked Cst. Williamson to calculate the distance to travel given the speed of the train’s black box and given the time of 11 and 19 seconds. The second calculations provided are simple distance = time x velocity (or speed). That is what was provided.

Principles Applied

[225] The issue before me is the appropriate relief for late disclosure, not non-disclosure. Late disclosure commonly is remedied by giving the defence adequate time to sufficiently digest the new information. That is precisely what the defence requested and the court granted. The late calculations were previously unseen so they can be fairly characterized as new but they were very basic mathematical calculations based on information in the hands of the defence. It is not uncommon for a lawyer to ask a witness to make a new calculation based on the information before the court. Indeed, defence counsel asked Cst. Bortolon to calculate various measurements from his scale diagram. I see nothing in the late disclosure which required relief beyond what was given, time. The failure of defence counsel to contemporaneously pursue any further remedy supports this conclusion. Moreover, it is appropriate to consider counsel’s failure to request any further relief in consideration of any subsequent relief request.

[226] Accordingly, I find no further relief appropriate for the late disclosure.

Issue Five: Police Mechanical Inspection Report

Positions of the Parties

Defence

[227] The mechanical inspection report of former Cst. McEvoy did not include his inability to confirm that the rear brakes were in working order at the time of the collision. At trial, Mr. McEvoy admitted his inability to confirm the working order of the rear brakes. His failure to include this conclusion in his written report deprived the accused of his right to make full answer and defence and his right to a fair trial. With regard to remedies, the defence does not want the exclusion of the evidence of Mr. McEvoy, asserting that his evidence is helpful to the defence.

Crown

[228] At trial, Mr. McEvoy made no material change from his report. He was unable to test the rear brakes because of the collision damage to the brake line. He continued his opinion that the braking system was in working order. Furthermore, a change in a witness’ evidence is not uncommon and is subject to factual challenge at trial. Without more, such a change does not give rise to a breach of any Charter right.

Facts

[229] There is evidence of heavy braking by the minivan as it approached the crossing. It comes from the two eye-witnesses, Mr. Hamilton and Mr. McMillan, as well as from the physical evidence on the gravel road at the scene. Indeed, defence counsel relies in part on the braking by Mr. Williams as evidence of the lack of criminality.

[230] Former OPP Cst. Stephen McEvoy was called to give evidence on his examination of the minivan on April 11, 2014. Mr. McEvoy was qualified as an expert witness to give opinion evidence on the mechanical condition of the minivan specifically on its brakes, steering and tires. He did so.

[231] Mr. McEvoy testified that there were two separate, unconnected braking systems on the minivan – the front and the rear. The braking capacity of the two systems was not equally divided. The front braking system was 70 per cent of the vehicle’s braking capacity and the rear braking system was 30 per cent.

[232] With regard to the front brakes, Mr. McEvoy said all the components were present. In addition, he was able to test the system and conclude that the front brakes were functioning. With regard to the rear brakes, Mr. McEvoy testified that all the components were present but that he was unable to test the rear braking system. Mr. McEvoy explained it is a sealed hydraulic system. Because the left rear wheel was torn from the minivan severing the system he was prevented from testing it. Thus, in contrast with the front brakes, Mr. McEvoy was unable to prove the rear brakes were functioning. From his examination, however, Mr. McEvoy opined that the rear brakes were functioning.

[233] Mr. McEvoy’s report entitled, “Mechanical Inspection Guide and Evaluation” was made an exhibit. The “Brakes” section of the report is technical. There is no indication to me, a non-expert, of any testing or inability to test. In the report’s conclusion, Mr. McEvoy wrote,

“In my opinion the vehicle would have been able to steer and stop during the collision. The damage to the braking system and suspension were all collision related.”

[234] Mr. Williams, the accused, testified at the trial. He testified that he had the minivan for about two years before the collision. He said the brakes were working that day and if he thought otherwise he would not have driven.

[235] This issue was raised for the first time in the defence Amended Notice of Application filed on December 23, 2016. With regard to this issue, the amended notice states:

“The mechanical inspection report by Constable McEvoy in its written conclusion did not include that he could not confirm that the rear wheel brakes were in working order, which he said in his testimony at trial.”

Principles Applied

[236] Facially, Mr. McEvoy’s report neither states his ability to test the front brakes nor his inability to test the rear brakes. That part of his vehicle examination was elicited in his evidence at trial. He did conclude, in his report, that it was his opinion the vehicle would have been able to stop during the collision. Mr. McEvoy had the same opinion at trial, the rear brakes were functioning.

[237] The defence says that this failure of the report to include the inability to confirm the author’s opinion through testing is an abuse of process and denied the accused his right to a fair trial. Yet, the defence specifically does not want the exclusion of the trial evidence of Mr. McEvoy believing it is helpful to the defence.

[238] I confess puzzlement over this claim. It seems to me that Mr. McEvoy comported himself as an expert witness should, by conceding any weaknesses in his opinion. I know of no rule that requires an expert witness report to include all the potential challenges to the expert’s opinion. Certainly s. 657.3(3) and (4) of the Criminal Code, R.S.C. 1985, c. C-46, do not. There certainly is no accusation or evidence that the witness or the Crown intentionally hid any exculpatory evidence. Finally, it is telling that the defence specifically does not want the court to exclude the evidence of Mr. McEvoy because of the belief that it is helpful to the defence.

[239] Accordingly, I find no breach of the accused’s fair trial rights. I find no abuse of process.

CONCLUSION

[240] For the foregoing reasons, the motion is dismissed

“original signed and made an Exhibit in court by Justice K. Munroe”

Kirk W. Munroe

Justice

Released Orally: January 27, 2017

CITATION: R. v. Williams, 2017 ONSC 572

COURT FILE NO.: CR-15-3488

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

Andrew Williams

RULING ON MOTION TO STAY

Kirk W. Munroe

Justice

Released Orally: January 27, 2017

[^1]: With the exceptions of the late disclosure and mechanical inspection report claims, throughout the trial the defence made oral assertions of adding these grounds to the motion.