COURT FILE NO.: 7862AP
DATE: 2019-12-20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Heidi Mitchell Counsel for the Respondent
Respondent
- and -
JAMIE PARK
Anthony Orazietti, Counsel for the Appellant
Appellant
HEARD: December 19, 2019
VARPIO J.
REASONS ON APPEAL
[1] This is an appeal of, inter alia, Condon J.’s decision to dismiss the applicant’s Charter application dated April 23, 2018. The appellant was ultimately found guilty of impaired driving.
FACTS
[2] The trial judge was confronted with a situation where the accused was arrested for impaired driving on August 25, 2016. It was the defence theory that the arresting OPP officer lacked sufficient grounds for the arrest. The arrest occurred in Awares Township, just outside of Sault Ste. Marie, Ontario. The defence argued that the arresting officer did not have an ASD with him and, rather than wait for an ASD to arrive from the station which would have complicated the arrest, the arresting officer engaged in an unacceptable “short cut” to arrest the accused on scene, rather than make a breath demand.
[3] Prior to the hearing, the defence communicated his position to the Crown. On September 16, 2016, defence counsel wrote to the Crown indicating:
Could you please advise me whether or not the arresting officer in this case had an ASD available to him on the night in question.
If so, please provide “sign out” confirmation of the device with make, model and serial number
[4] The Crown responded on September 21, 2016 by stating that
[f]urther to your request in this matter, [the arresting officer] advises “I had one in the car but no notes & we don’t have a sign out log for them so I couldn’t tell you the serial #”
[5] The accused’s counsel [not appellate counsel], responded to this letter as follows:
This officer is not being truthful.
He must check out expensive equipment at the detachment. There are rules regarding police equipment. What is the detachment protocol for taking out an ASD?
Secondly, at the start of the shift he must not[e] the unit he has with him or radar gun or whatever [sic]. Did he do that?
Thirdly, it is inconceivable to me that he has no notes on this unit. Did he use it at all that night? He said he was on ride patrol so there must be other incidents for the same shift which would help him.
[6] The accused went to trial and brought a Charter application pursuant to sections 8, 9, and 24(2), stating that the arresting officer had insufficient grounds to arrest the accused for impaired driving and did so as a form of a “shortcut” because he did not have an ASD in the car with him. The officer’s credibility was therefore squarely at issue in this Charter application.
[7] The accused called Staff Sgt. Maville of the OPP on the application. The Staff Sgt. testified regarding best practices for signing out ASD’s from the station, as well as mandatory protocols for same. S/Sgt. Maville testified that it would be best practice for an officer to make a note in her/his notebook regarding which ASD they were signing out from an OPP Station prior to leaving the station at the start of her/his shift. S/Sgt. Maville indicated that exceptional circumstances could demand that no such notes are made.
[8] The Crown called the arresting officer who testified that immediately upon starting his shift, the arresting officer was forced to attend at the scene of an incident whereby the arresting officer had to deploy a spike belt to stop a motorist who had stolen gas from Wawa. During examination-in-chief, Crown counsel had the following exchange with the arresting officer:
Q. All right and Officer, can you just take me through what steps you’d normally take at the beginning of a shift?
A. Normally at the start of the shift you go through all your equipment in your notebook, list everything that you’d have with you, however, you’d check your e-mails, excreta [sic], see if there’s anything on going to pass on but on this date in question it was just a matter of getting a car and start travelling north.
Q. Okay and so did you make those notations about equipment?
A. Not on that date, no I didn’t, just to, no I didn’t make notes on the equipment that day.
[9] Defence counsel cross-examined the arresting officer vigorously regarding whether or not the latter was lying regarding the presence of the ASD in the cruiser.
[10] In accepting that the arresting officer had an ASD in his cruiser but failed to make a note of same, Condon J. stated at paragraphs 121 and 122 of his decision:
Staff Sgt. Maville did provide evidence regarding exceptions to the “best practices” [that officers should make a note of the ASD in their notes]. [The arresting officer] testified about the circumstances that existed at the start of his shift on August 24, 2016. The officer was called upon, at the very outset of his shift, to be on the road in order to participate in the interception of a vehicle travelling from Wawa after the theft of gasoline. I find this an explanation to be credible and it was unchallenged in cross-examination.
While the better course of action for [the arresting officer] would have been to take time, after this first incident to note the special equipment in the cruiser with him, the absence of this action does not undermine the officer’s testimony that there was an ASD in the cruiser being used by him. The assertion that [the arresting officer] had no ASD with him when he stopped the applicant is rejected.
[11] Of note, the accused did not stop the trial in order to ask for disclosure of the Wawa incident that caused him to fail to record the presence of that ASD.
[12] Condon J. then went on to find that the arresting officer was credible with respect to those parts of his evidence that were challenged in cross-examination. This finding was ultimately crucial to his dismissal of the Charter applications.
[13] Subsequent to the accused’s conviction, the appellant launched this appeal and asked the Crown for the officer’s notes regarding the Wawa incident. I heard a motion regarding same and ordered that the notes in question be disclosed: 2019 ONSC 62. At para 18, I stated:
This situation is similar to that found in R. v. McQuaid 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 [aka Dixon] where an accused sought disclosure of all relevant statements but did not receive them prior to trial. Instead, the accused received some statement[s] and some will-states generated from other statements. The accused failed to make a specific request for those statements where he only had will-states. The accused was convicted and he sought to overturn his conviction on the basis that the non-disclosure of the statements in question infringed his right to full answer and defence. The Supreme Court examined the statements in question and determined that the accused’s rights had not been violated by the non-disclosure. Obviously, in order to make such a determination, the statements would have had to have been disclosed to the accused and the Court on appeal.
[14] The arresting officer’s notes were disclosed. They contained the following entry from the start of the arresting officer’s shift:
1800 - Test CFW# x29002WAP
Assign Veh 4.486
Soft: 4K302
km start: 96074
finish:
Nothing in backseat
[15] The appellant argues that the entries indicating the “Test” ought to be interpreted as a test of a radar gun. Equally, the last entry shows that the officer did an inventory of the back seat. Accordingly, the appellant suggests that the arresting officer lied in his testimony when he indicated that “Not on that date, no I didn’t, just to, no I didn’t make notes on the equipment that day.”
[16] The Crown suggests that there could well be an innocent explanation for the aforementioned note and apparent inconsistency in the testimony. Accordingly, it would not be fair to order a new trial on the existence of one simple notebook entry.
ANALYSIS
[17] The test for ordering a new trial on the basis of new disclosure provided after trial was described in Dixon, supra. at para. 39:
In sum, all these factors must be appropriately balanced. In situations where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial. This balancing process must now be applied to this appeal.
[18] This test was summarized by the Supreme Court in R. v. Taillefer 2003 SCC 70 at para. 81:
Dixon thus sets out a two-step test. To assess the reliability of the result of the trial, “the undisclosed information must be examined to determine the impact it might have had on the decision to convict” (para. 36). As this Court held, the exercise is a difficult one when, as in this case, the verdict was rendered by a jury (paras. 31‑36). The fact that jury deliberations are secret makes it impossible to identify the evidence that was the determinating factor in the decision to find an accused guilty. Two comments are necessary on this point. First, the onus is on the accused to demonstrate that there is a reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence. The accused therefore does not have the heavy burden of demonstrating that it is probable or certain that the fresh evidence would have affected the verdict (Jarema, supra, at paras. 18 et seq.; Stinchcombe, supra, at p. 348). As this Court held in Dixon: “[i]mposing a test based on a reasonable possibility strikes a fair balance between an accused’s interest in a fair trial and the public’s interest in the efficient administration of justice. It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown’s disclosure obligations” (para. 34).
[19] Thus, the question before me is whether or not the notes disclosed raise a “reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence”.
[20] I find that the notes are highly material (albeit collateral) and that they do raise such a reasonable possibility.
[21] First, it is clear from Condon J.’s reasons that he wrestled with the validity of the officer’s explanation for why the arresting officer had no notes regarding whether he was in possession of an ASD. It was crucial to his finding that the arresting officer’s evidence was credible. Had Condon J. found the officer to be incredible on this point, the officer’s credibility would necessarily have been materially affected regarding other important findings of credibility such as the subjective element of the grounds to arrest. Such an impact would be unavoidable.
[22] This finding of credibility is affected by an apparent inconsistency regarding whether or not the officer had the opportunity to take notes of equipment in his cruiser. The officer’s testimony states that he would not have had such time at first, although he would have had time subsequent to the deployment of the spike belt. The officer’s notes, however, belie that position in so far as the officer, at the very least, took inventory of the backseat of the cruiser. The notes may well prove that the officer took inventory of the special equipment in the car. The ASD is, of course, conspicuously absent from the notes which could easily lead to a serious impact on the officer’s credibility.
[23] While I agree with Crown counsel that there may be an innocent explanation for this absence, there equally may be a more nefarious one. Without the benefit of testimony on this point, however, there is no way to know.
[24] Therefore, the arresting officer’s testimony regarding whether or not he was in possession of an ASD was vital to Condon J.’s findings regarding the Charter. The officer’s explanation for the lack of notes was the central issue to this analysis. The existence of notes that, on their face, appear to contradict the officer’s position (and the Crown’s consequent failure to disclose same)[^1] raises a “reasonable possibility that the verdict might have been different but for the Crown’s failure to disclose all of the relevant evidence”.
[25] Therefore, the appeal is successful, and a new trial is ordered.
Varpio J.
Released: December 20, 2019
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
JAMIE PARK
REASONS ON APPEAL
Varpio J.
Released: December 20, 2019
[^1]: I have no evidence that the Crown was aware that the notes existed at the time of trial. Nonetheless, it is always the Crown that has disclosure obligations. Given the fact that I am determining this appeal on the basis of the first prong of Dixon, I have no need to discuss the defence’s apparent lack of due diligence.