COURT FILE NO.: CR-17-50000003-00AP
DATE: 20180710
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HARRINAUTH DEESASAN
T. Kranjc, for the Respondent, the Crown
N. Xynnis , for the Appellant, Harrinauth Deesasan
HEARD: 16 May 2018
s.a.Q. akhtar j.
[1] On appeal from the conviction entered on 11 October 2016 by Justice Antonio Di Zio of the Ontario Court of Justice.
Introduction
[2] The appellant was convicted, after a four day trial, of (1) driving a vehicle while his ability to do so was impaired by alcohol contrary to s. 253(1)(a) of the Criminal Code and (2) refusing to provide a breath sample without reasonable excuse contrary to s. 254(5) of the Criminal Code.
[3] He appeals his conviction on two grounds: the police failure to record their interactions with him whilst in custody, and the judge’s failure to consider the evidence of a defence witness.
[4] For the reasons set out below, his appeal fails.
FACTUAL BACKGROUND AND OVERVIEW
The Crown’s Case
[5] In the early hours of the morning of 5 April 2014, John Daniel, an electrician, was driving home from work, heading eastbound on Highway 401. Taking the exit heading southbound to Black Creek Drive, he noticed a green Honda Civic swerving in the road. Mr. Daniel followed the car down Black Creek Drive to the intersection with Lawrence Avenue where the car stopped three car lengths before the traffic lights.
[6] Mr. Daniel pulled up alongside the Civic and saw the appellant seated behind the wheel, with his eyes closing and looking like he was “going to pass out or something”. Concerned, Mr. Daniel told the appellant he should stop driving, park the car and find a place to sleep. The appellant replied by swearing at Mr. Daniel, who noticed a slurring of speech.
[7] As the light turned green, the appellant drove off followed by Mr. Daniel who, at one point, believed the appellant was trying to swerve the Civic into his vehicle. Mr. Daniel trailed behind the appellant testifying that the Civic came very close to hitting the centre concrete barrier three times.
[8] The Civic came to a stop at Eglinton Avenue West pulling over at the side of the road. Driving past the appellant, Mr. Daniel noticed a police cruiser and spoke to the officers inside the vehicle informing them of his observations. Mr. Daniel pulled over but continued to watch the appellant’s car through his rear view mirror.
[9] Several cruisers surrounded the appellant’s car, and at some point, the Civic reversed backwards into a cruiser parked behind it.
[10] Two officers, PC Ryan Bartley and PC Alexander Juhasz approached the appellant and asked him to step out of the car. Both officers testified to visual signs of impairment: the appellant had trouble keeping his eyes open; was very unsteady on his feet, slurred his words and smelt of alcohol. Both officers testified to the appellant’s belligerent behaviour as he swore and insulted the police. When he exited the car, the appellant had to be assisted by PC Juhasz to ensure that he remained on his feet.
[11] The appellant was read the breath demand, was cautioned, read his right to counsel and transported to a nearby mobile unit. The officers testified that, en route, the appellant continued to be truculent and uttered swear words. When they arrived at the mobile unit, the appellant again needed to be helped out of the car because he was unable to get out by himself and continued to require further assistance after that.
[12] After speaking to duty counsel, the appellant remained antagonistic and continued to swear. When spoken to by the breath technician, the appellant denied being on medication but refused to provide a breath sample. The police video of the interaction showed the appellant slurring his words and stuttering. The breath technician concluded that the appellant was significantly impaired and he was transported to 12 Division.
The Defence Evidence
[13] The appellant testified that he had left his mother’s house at approximately 9 p.m. to go to a funeral at Jane Street and Finch Avenue, arriving there at around 11:30 p.m. The appellant left at 2:30 a.m. with Marlon Sanichar, a person he met at the gathering, and drove him to Lawrence Avenue West at Black Creek. The appellant maintained that there was nothing unusual about his driving and added that his windows were tinted so Mr. Daniel would not have been able to see inside his car.
[14] The appellant explained that he felt that Mr. Daniel appeared to be driving close to him causing him to fear that Mr. Daniel was going to “jam me on the side”. Feeling scared, the appellant stopped on Eglinton Avenue West under a bridge near Weston Road, where he saw Mr. Daniel drive past him.
[15] Shortly afterwards, the appellant saw PC Bartley and PC Juhasz approach his car. One of the officers asked him how much alcohol he had consumed that night. According to the appellant, PC Bartley pulled him out of his car and placed him on the ground handcuffing him. PC Juhasz hit him with his knee and uttered racial slurs calling him a “fucking Paki”. The appellant testified that he was wearing a bandage as a result of previously fracturing his wrist. He claimed that he told the officers about this injury but they ignored him and refused his request to loosen the handcuffs. He also testified that he told the officers about various health concerns such as an unstable bladder and being prone to panic attacks.
[16] Despite these complaints, the police took no steps to accommodate the appellant and, continued to use racial slurs during his transport to the mobile unit.
[17] The appellant explained his refusal to provide a breath sample by claiming that he was not in a proper state of mind because of panic attacks caused by the fact that he could not use the washroom and because of the wrist fracture. He had no memory of refusing the breath demand and claimed that he had no alcohol in his body that night.
[18] The defence also called Mr. Sanichar who confirmed that he left the funeral with the appellant at approximately 2:30 a.m. Mr. Sanichar indicated that no alcohol was served at the wake and that he did not smell any alcohol on the appellant or notice any signs of unusual driving. After being dropped off at Black Creek and Lawrence, Mr. Sanichar testified that he took a bus home.
[19] The in-car cameras would, in the normal course of events, have recorded the appellant’s arrest and his interactions with the police. However, these devices were not working that night and there was no footage of the appellant’s arrest available at trial. In addition, the in-car camera used when transporting the appellant to the mobile unit appeared to record only video and not audio.
[20] The appellant alleged his s. 7 Charter rights had been breached by the absence of footage and the actions of the police. The trial was conducted as a blended Charter voir-dire with the evidence adduced therein applied to the trial proper with the consent of both parties.
The Trial Judge’s Reasons
[21] The judge found no breach of the appellant’s Charter rights and refused to stay the proceedings as requested by the defence.
[22] The judge rejected the appellant’s explanation of his ongoing health issues as raising any reasonable doubt in either the impaired offence or the refusal to provide a breath sample. He concluded that there was more than sufficient evidence that the appellant was impaired given the signs of intoxication witnessed by the police officers and Mr. Daniel.
[23] Accordingly, he entered findings of guilt to both charges.
Grounds of Appeal
[24] The appellant advances two grounds of appeal. He argues that the trial judge erred by:
(1) Declining to stay the proceedings or exclude evidence due to the failure of the police to record events after the appellant had been placed in police custody; and
(2) Failing to consider the evidence of Mr. Sanichar when arriving at a verdict.
DID THE TRIAL JUDGE ERR BY REFUSING A STAY OF PROCEEDINGS?
[25] The central issue in this appeal is the police failure to record all interactions with the appellant after he had exited his car. Clearly, there were diametrically opposed accounts given by both the appellant and the police with respect to what happened next.
[26] The police denied any wrong doing, and insisted that no injuries were either seen or reported by the appellant at the time of his arrest. They also testified that the appellant did not request washroom facilities, as he claimed.
[27] There is no doubt that this type of credibility contest would be quickly resolved if a video/audio recording existed of the incident. However, as noted, the in-car video that would have captured the appellant’s arrest failed to operate. A second malfunction occurred when the appellant was transported to the mobile unit as although the video was captured, the audio was not.
[28] As at trial, the appellant relies upon the cases of R. v. Carosella, 1997 402 (SCC), [1997] 1 S.C.R. 80, and R. v. La, 1997 309 (SCC), [1997] 2 S.C.R. 680, as authority for the proposition that by failing to properly record the events, the police and the Crown failed to provide relevant and material disclosure. The appellant argues that had the recordings been available, the appellant would be able to fully advance his defence that he was manhandled by the police. It would also resolve questions at the centre of the trial such as whether the appellant was belligerent; whether there were signs of impairment such as falling asleep; and whether the appellant complained about his injuries and needing to use the washroom. The appellant further submits that the video evidence would have established that he suffered a panic attack which caused him to refuse the breath test.
[29] The appellant’s position is that the disclosure should have existed and its absence was not explained by the Crown. As a result, the matter should have been stayed or any evidence prior to the breath test should have been excluded.
[30] I find this argument to be misconceived. Unlike Carosella or La, this was not a case where the police had material evidence and had lost, destroyed, or failed to preserve it. Here, the evidence did not exist.
[31] As is well settled, the Crown could only disclose what it had: R. v. Stinchcombe, 1995 130 (SCC), [1995] 1 S.C.R. 754, at para. 2. There is a significant distinction between evidence that was once in the hands of the police but has later disappeared and evidence it did not possess even though the defence thinks it should have.
[32] The duty to preserve evidence does not oblige the police to create evidence. In R. v. Khan, 2010 ONSC 3818, at para. 13, MacDonnell J. sitting as a Summary Conviction Appeal court summarised the distinction in the following way:
The Crown's disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. For example, both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that the police record videotape or audiotape custodial interrogations: R. v. Moore-McFarlane (2001), 2001 6363 (ON CA), 160 C.C.C. (3d) 493, at paragraph 61-65 (Ont. C.A.); R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321, at paragraph 46 (S.C.C.). Consistent with those authorities, the law in Ontario is clear that the police are not obliged to make a videotape of the breath testing process.
[33] Khan is a good example of how a failure to record is treated by the courts. After failing a roadside screening test, Khan was arrested, given a Breathalyzer demand, and transported to the detachment. The Breathalyzer room was equipped with video equipment, but the detachment had run out of tapes and so the interaction was not videotaped. The accused testified that he made best efforts to provide a suitable sample, but was unable to do so because he was asthmatic. MacDonnell J. determined that the failure to videotape did not amount to a breach of the Charter because,
the video evidence was not lost evidence, since it never existed, and
the failure to videotape did not render the trial unfair, since there was sufficient evidence from the police and the appellant to make the relevant determination: at paras. 12-16.
[34] As in Khan, the evidence in this case never existed, and there was sufficient evidence from the police and the appellant to determine the question at issue.
[35] The same principle applies to the failure to record the arrest and transport of the appellant. Whilst it certainly would have been ideal had the camera footage existed, there was no obligation on the police to create a recording or even turn on the in car camera: see R. v. Kurmoza, 2017 ONCJ 139, at para 17. The trial judge’s findings govern the law that applied in this case: the judge found no nefarious intent on the part of the police and accepted that the fault to be a technical malfunction. In my view, he was correct in determining that the case did not fall within the ambit of the Carosella/La principles.
[36] Moreover, it should be noted that whilst the police must preserve evidence, there is no obligation to investigate or acquire evidence simply because the defence desires it. In other words, an accused does not have a constitutional right to an adequate investigation. Whilst an inadequate investigation may lead to the Crown’s failure to prove its case beyond a reasonable doubt, it does not in itself equal a breach of an accused’s right to make full answer and defence: R. v. Darwish, 2010 ONCA 124, 252 C.C.C. (3d) 1, at para. 29.
[37] Even missing evidence that affects the defence case does not, per se, form the basis for a breach of the right to make full answer and defence. In order to establish a stay, an accused person must demonstrate actual prejudice. As was made plain in R. v. Bradford (2001), 2001 24101 (ON CA), 52 O.R. (3d) 257 (C.A.), at para. 8:
Actual prejudice occurs when the accused is unable to put forward his or her defence due to the lost evidence and not simply that the loss of the evidence makes putting forward the position more difficult. To determine whether actual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the same information as the lost evidence is an essential consideration.
[38] The judge evaluated the impact of the malfunctioning equipment on the appellant’s ability to defend himself and concluded that it had no impact. In his view, it was pure speculation that the non-existent audio or video would have supported the appellant’s position. The appellant was more than able to advance his arguments as to the merits of the Crown’s case through his own testimony and called his own witness to refute the allegations of impaired driving.
[39] In addition, as the judge noted, there was an abundance of evidence of the events in question including the testimony of several police officers, video evidence in the breath room, and an independent civilian witness who was observing the interactions on scene and who testified that he never saw the appellant on the ground or any police misconduct. He rejected the defence evidence as incredible and incapable of raising a reasonable doubt. After a review of the entire evidence, the judge concluded that the evidence overwhelmingly pointed to the appellant’s guilt.
[40] I find that the judge made no error in his conclusions and this ground of appeal fails.
Did the Judge Err in Failing to Consider Mr. Sanichar’s Evidence?
[41] The appellant’s second ground of appeal centres on the judge’s treatment of Mr. Sanichar’s evidence, which, on its face, exculpated the appellant. The chief complaint is that in reviewing the evidence, the judge “did not even consider the evidence” of a witness whose evidence cast real doubt on the impaired driving charge.
[42] According to the appellant, the trial judge only mentioned Mr. Sanichar in a single paragraph that did nothing other than recount the evidence. The appellant therefore argues that the trial judge failed to comply with the Supreme Court of Canada’s decision in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, which mandates that a judge provide sufficient reasons for a verdict.
[43] Sheppard did indeed impose upon trial judges the duty to provide reasons explaining their verdicts. The following principles have since emerged in the caselaw:
A judge need not review every piece of evidence or explain in each step of the reasoning process so long as the findings linking the evidence to the verdict can be logically understood: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at para. 20; R. v. Campbell, 2017 ONCA 209, at para. 15.
The judge’s reasons must be read as a whole and in conjunction with the evidence, issues, and submissions at trial, together with an appreciation of the purposes or functions for which they are delivered: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 15; R.E.M., at para. 16; Campbell, at para. 15. The central question is whether the reasons, read in context, show why the trial judge decided the way he or she did: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639, at para. 15. Put another way, the reasons “must clearly tell the losing party why he or she lost and must provide for meaningful review”: R. v. Newton, [2006] O.J. No. 1008 (C.A.), at para. 3.
[44] In R.E.M., at para. 55, the court explained the role of an appellate court reviewing reasons:
The appellate court, proceeding with deference, must ask itself whether the reasons, considered with the evidentiary record, the submissions of counsel and the live issues at the trial, reveals the basis for the verdict reached. It must look at the reasons in their entire context. It must ask itself whether, viewed thus, the trial judge appears to have seized the substance of the critical issues on the trial. If the evidence is contradictory or confusing, the appellate court should ask whether the trial judge appears to have recognized and dealt with the contradictions. If there is a difficult or novel question of law, it should ask itself if the trial judge has recognized and dealt with that issue
[45] I reject the appellant’s position that the trial judge merely recounted Mr. Sanichar’s evidence. At para. 4 of his reasons, the judge reviewed Mr. Sanichar’s testimony, noting that it contradicted Mr. Daniel. However, he returned to this contradiction at para. 24 of his reasons, explaining that he placed little value in Mr. Sanichar’s evidence because he had his eyes closed at the time of driving. In addition, the judge concluded that Mr. Sanichar did not have an opportunity to evaluate the appellant’s manner of speech because there was a lack of conversation between them. The judge also pointed out that Mr. Sanichar was not even in the car when the “worst and most dangerous” part of the driving occurred.
[46] In other words, the trial judge gave concise but cogent reasons, grounded in the evidence, for rejecting Mr. Sanichar’s evidence. Read in conjunction with the entire judgment, these reasons disclose why the judge found the appellant guilty and rejected the defence evidence.
[47] In my view, it is clear that Mr. Daniel’s testimony, the evidence of the officers on scene, the evidence of the breath technician, and the video evidence provided overwhelming proof of the appellant’s guilt.
[48] Accordingly, I find that the judge did consider Mr. Sanichar’s evidence and provided reasons that informed appellant why he had been convicted and, in addition, provided meaningful appellate review.
[49] For these reasons, the appeal is dismissed.
S.A.Q. Akhtar J.
Released: 10 July 2018
COURT FILE NO.: CR-17-50000003-00AP
DATE: 20180710
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
HARRINAUTH DEESASAN
REASONS FOR JUDGMENT
S.A.Q. Akhtar J.