Court File and Parties

COURT FILE NO.: CR-17-104 DATE: 2022/02/28 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – James Elliot Cornell Appellant

COUNSEL: Timothy Kavanagh, for the Crown (Respondent) Dylan Finlay, for the Appellant

HEARD: August 26, 2021 - Napanee

REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL

Somji J.

Overview

[1] This appeal addresses two issues: first, whether the Crown’s refusal to provide a breath room video to the appellant as a self-represented person undermined his right to disclosure and a breach of his right to right to full answer and defence under s. 7 of the Charter; and second, whether the trial judges remarks to a self-represented accused constituted reasonable apprehension of bias.

[2] The appellant James Elliot Cornell was convicted on February 28, 2017, for failing to provide a breath demand contrary to s. 254(3) of the Criminal Code (“Code”) by the Honourable Justice Griffin of the Ontario Court of Justice. The applicant was sentenced to a fine of $1,000 and a one-year driving prohibition for the refusal conviction. He was also tried for impaired driving but was acquitted of that charge. The appellant was self-represented at trial.

[3] Mr. Cornell appeals his conviction for failing to comply with a breath demand on the grounds that one, the trial judge erred in not finding a breach of his s. 7 Charter rights in relation to the manner in which disclosure was provided, namely that he was not provided a video of his time in custody when asked to give the breath demand (“video”); and two, the trial judge exceeded his jurisdiction when making statements that revealed a reasonable apprehension of bias towards the appellant thereby resulting in an error of law.

[4] The Crown argues that there was no breach of the appellant’s s. 7 Charter right because the video was disclosed to the appellant’s initial counsel, the appellant was given opportunities to view the video as a self-represented person, and the appellant viewed the video the morning of trial and again during trial. Moreover, the video contains an unequivocal refusal and could not reasonably have affected the verdict or trial fairness. In addition, while the trial judge expressed frustration at the stuttered progress of the case through the courts and the absences of either counsel or the accused at court appearances, the comments cannot be interpreted to suggest bias. The judge tried the case in an impartial manner as evidenced, in part, by the fact that the accused was acquitted for impaired driving.

[5] The issues to be decided are:

1. Did the trial judge err in failing to find a breach of the accused’s s. 7 Charter rights because of his inability to access and view the video prior to trial?
2. Did the trial judge’s remarks and conduct of the trial result in a reasonable apprehension of bias so as to constitute an error of law?

[6] All legislative references are to the Criminal Code unless otherwise specified.

Background Facts

[7] On/around September 17, 2015, a civilian contacted the police to report a person on the 401 highway driving poorly and changing lanes repeatedly. Based on the license plate provided, Sgt. Watkins intercepted the appellant’s vehicle, formed grounds to arrest for impaired driving, and arrested the appellant.

[8] Sgt. Watkins read the appellant a breath demand at 1:37 a.m. and asked him if he understood. The appellant replied “yes”. Sgt. Watkins then asked the appellant to repeat what he said in plain language and the appellant said he understood. Sgt. Watkins asked again “what does it mean?”, and the appellant replied, “You’re asking me for a breath sample”. The officer told the appellant it was not a request but a demand, that he was legally obligated to comply with the request and failure to comply constituted a criminal offence. The appellant replied he was not going to provide a sample. The appellant said he wanted to speak to duty counsel. Sgt. Watkins retrieved the appellant’s cigarettes and phone from his car, locked up the appellant’s vehicle, and took the appellant at 1:43 a.m. to the Loyalist OPP Detachment for a breath sample.

[9] Following their arrival, the appellant spoke to duty counsel from 2:10 a.m. to 2:15 a.m. The appellant said, “That guy’s an idiot” suggesting he was not satisfied with the call. The appellant was taken to the breath room where a second officer and qualified breath technician, Cst. Martell had a video running. The appellant was asked if he understood the lawyer’s advice and replied he did understand. The appellant refused to give a sample. The demand was given several times and the officers also explained the jeopardy of failing to comply, but the appellant maintained his refusal.

[10] Sgt. Watkins offered the appellant another opportunity to call duty counsel so he could be sure the appellant clearly understood his jeopardy. It took some time to reach another lawyer, but the appellant spoke to another counsel from 2:42 a.m. to 2:47 a.m. The appellant returned to the breath room where the video was running and refused again to provide a sample. The appellant did not provide a reason for his refusal. He indicated he wasn’t trying to be difficult, but that he wasn’t going to do it. Both conversations addressing the refusal were captured on the video.

[11] Cst. Martell’s testimony corroborated the evidence of Sgt. Watkins. Cst Martell testified the appellant was taken to the breath room around 2:17 a.m., given a breath demand, and refused to provide a sample (“clip 1”). The appellant was given another opportunity to speak to counsel, returned to the breath room at 2:39 a.m., and was recorded again at 2:44 a.m. refusing to provide a breath sample (“clip 2”). Both clips were recorded and transferred onto the same video which was later transferred onto two discs for disclosure purposes, referred here as the video.

[12] The contents of the video are addressed further below, but suffice to say both officers and the appellant can be clearly seen and heard on the video. Other than a discrepancy between the time stamp on the video and the officer’s own notes, a discrepancy that was explained by Cst. Martell, the video corroborates the testimony of both officers regarding the appellant’s refusal.

[13] The appellant initially retained Joshua Clark as counsel. It is not disputed that he received the full disclosure package, including the video. Mr. Clark was later discharged and the disclosure returned to the Crown’s office. The appellant later retained David Amber, but he was also discharged as counsel. The appellant argues that after he discharged his initial counsel, he requested disclosure from the Crown including the video. The Crown provided written disclosure, but would not provide the video to the appellant as a self-represented person. Instead, the Crown offered the appellant to attend the Crown’s office or the Napanee OPP detachment to view the video, but he did not follow through. Details of the disclosure correspondence and the opportunities for viewing are addressed further below.

[14] The appellant only viewed the video on the morning of trial. In addition, the appellant argued at trial and on appeal, that he was not permitted to fully view the video. He argues that during the viewing, the second clip stopped working 31 seconds into play. The appellant stated at trial that he informed Cst. Martell that he was unable to complete the second clip, but Cst. Martell did not offer to assist him with playing the clip to its completion. The appellant stated that he had told the officer the video ended at 2:48 and the officer had replied, “that’s all we have”. The appellant told him I am not here to fight you on this. The appellant argues the second video contained another 6 minutes and 21 seconds of recording. The Crown clarified at trial that Cst. Martell was not present at the viewing of the video on the morning of trial and offered to have the officer who was present testify. The appellant did not take the Crown up on that offer.

[15] Justice Griffin presided at many of the court proceedings leading up to trial and was aware of the lengthy history of the file including an adjournment of two trial dates. When the appellant raised the issue of non-disclosure of the video, Justice Griffin reviewed the history of the file and expressed frustration at the pace at which the matter had come to trial. He did, however, consider the appellant’s arguments and invite him to testify on the disclosure issues. The appellant argued with the judge that there was something amiss with the events that transpired on the night of the offence, that he had not been in the area that evening, that he had moved around, and that the video was not an accurate representation of what transpired. Justice Griffin invited the applicant to take the stand should he wish to give evidence that Sgt. Watkins was untruthful or to present a different version of events. The appellant continued to argue with the judge suggesting that they, I surmise the police, are being misleading and making things difficult, that he had been given a fumbled up tape on the morning of trial, and that given the distance between Odessa and Napanee, it meant that the officer had staged the phone call.

[16] Following submissions from the Crown and the appellant, the trial judge ruled that upon review of the appellant’s written materials on the motion, the disclosure correspondence filed, counsel and the appellant’s submissions, and having had the benefit of being present at multiple court proceedings involving the matter, he was not satisfied that there had been a violation of the appellant’s rights to disclosure. He found that while it may have been somewhat problematic to have the appellant view the video at the detachment, the appellant had many opportunities to address the shortcomings of disclosure in court as well as opportunities to view the video at the police detachment or at the courthouse and failed to follow through. Justice Griffin accepted the appellant’s evidence that he had not seen the video until the morning of trial, but found that it did not matter if he would have seen it earlier or the morning of trial because the video demonstrated the appellant’s clear and unequivocal refusal to give a breath demand.

[17] Following the Charter ruling, the appellant testified on the substantive charges. He acknowledged he had at least two glasses of wine in Ottawa with a friend Gwen Tuppert and left around 7:45 or 8 p.m. headed for Picton. He stopped at the Enroute along highway 401 pm at 11:24 p.m. where he wrote some emails. When he returned onto the highway, he realized about 40 minutes later that he had gone the wrong direction. He stopped to text Ms. Tuppert about what had happened and to tell her he was not going to make it because he had run out of gas and has no cash. It was at this point that Sgt. Watkins pulled him over. Sgt. Watkins informed the appellant that the police had received three calls about him. The appellant was arrested for impaired and taken to the detachment.

[18] The appellant denies ever seeing Cst. Martell at the scene or initially at the detachment. He testified he had a conversation with a younger officer with whom he joked. He was then placed in cells and taken to the breathalyzer room 20 minutes later. He acknowledged he was not satisfied with the advice of the first counsel he spoke to and Sgt. Watkins had given him an opportunity to speak to a second lawyer. The appellant testified he asked the second lawyer if he would “come down here” and that he would retain him. The appellant testified he told the lawyer he didn’t know if the breathalyzer machine was out of date.

[19] The appellant testified he understood this had all happened from 12:45 a.m. and onward and that he was fingerprinted at 2:27 a.m. and eventually released at around 6:30 a.m. The Crown suggested the fingerprinting occurred closer to 4 a.m. The appellant acknowledged in cross-examination that there was nothing physically or medically preventing him from providing a sample, but he was concerned that the machine was tampered with. However, the Crown pointed out in closing submissions that the appellant had already told Sgt. Watkins at the time of arrest that he would not provide a sample.

[20] The trial judge was not satisfied based on the totality of the evidence, including the evidence the civilian who testified, that the appellant was impaired at the time and acquitted the appellant on that charge. However, the trial judge found the video showed the appellant providing a clear refusal and convicted the appellant for refusing to provide a breath sample.

Issue 1: Did the trial judge err in failing to find that the accused’s s. 7 Charter rights were breached because of his inability to access and view the video prior to trial?

[21] Defence argues that despite repeated written requests, the appellant was never provided the video for personal viewing until the morning of his trial and even then, he was not afforded the opportunity to fully view the video. Consequently, the appellant’s Charter right to disclosure was breached and he is entitled to a remedy of a new trial.

A. Law on breach of s. 7 rights resulting from improper disclosure

[22] The right to full disclosure is a constitutionally protected right under section 7 of the Charter and a breach of that right entitles an accused to a remedy under section 24(1) of the Charter by way of a new trial or a stay of proceedings. However, it is not in all circumstances that the failure to disclose will result in a breach of section 7. The Supreme Court of Canada set out a two-part test in R. v. Dixon, [1998] 1 S.C.R. 244 for determining whether the failure to disclose infringes a person’s right to make full answer and defence under section 7.

[23] The first step is to determine whether there is a reasonable possibility that the non-disclosure affected the outcome of the trial. If so, an applicant is entitled to a remedy under section 24(1) of the Charter. If not, one must move to the second part of the test which is whether there is a reasonable possibility that the non-disclosure affected trial fairness: Dixon at para 36; R. v. Barra, 2021 ONCA 568 at para 141, 143, and 144.

[24] In assessing a violation of the accused’s right to disclosure, the court must also consider the appellant’s diligence in obtaining the disclosure. Where, for example, the appellant knew or ought to have known on the basis of other disclosures that the Crown had failed to disclose information and yet remained passive as a result of a tactical decision or lack of due diligence, it will be difficult for the courts to accept a breach of trial fairness: Dixon at para 38.

[25] The principles and two-part test set out in Dixon apply equally to delayed disclosure: Barra at paras 152 to 166.

[26] The standard on appeal is a balance of probabilities Where a person claims that a Charter right has been violated, he or she must prove on a balance of probabilities that the violation occurred. In other words, the court must find that it was more likely than not that the Charter right in question was infringed or denied: Dixon at para 32.

[27] Where an appellate court finds that non-disclosure affected either the outcome or the fairness of the trial, an appellant is entitled to either a stay of proceedings or a new trial under section 24(1) of the Charter. The choice of remedy depends on the extent of the prejudice to the appellant. Dixon at paras 35 and 39.

B. Application of the law to the facts of this of case?

i. Did the Crown unfairly restrict the appellant’s access to the video and was the applicant diligent in obtaining the video?

[28] As the record of the proceedings demonstrate, this was not a case of non-disclosure but rather delayed disclosure. The Crown did provide disclosure, including the video, to the appellant’s initial counsel. Following the discharge of two counsel over a period of 15 months, the disclosure was returned to the Crown. When the appellant became self-represented, the Crown told the appellant how to obtain the initial disclosure package. The appellant received the disclosure package well before trial, but it did not include the video and some police notes which he requested. With respect to the video, the Crown provided the appellant an opportunity to view the video at the Crown’s office and also directed him to contact the police to view the video at the detachment, but the appellant did not follow through. The appellant only viewed the video on the morning of trial.

[29] The appellant was charged on September 17, 2015. The appellant was present at his first appearance and directed an agent to adjourn the matter. He did not attend the second appearance and an agent adjourned the matter on his behalf. On the third appearance on November 24, 2015, an agent appeared again for the appellant and indicated that she had a letter from Counsel Joshua Clark who was retained and requesting an adjournment to December 22, 2015.

[30] It is not disputed that the Crown disclosed the video to the appellant’s initial counsel, Joshua Clark, on December 2, 2015.

[31] On December 22, 2015, an agent appeared on behalf of the appellant and Mr. Clark and indicated that there had been a meeting with the Crown earlier that month and that Mr. Clark wished to speak to his client and obtain instructions. The matter was adjourned to January 19, 2016. On that date, no one appeared and the matter was adjourned to February 2, 2016, when an agent appeared requesting another adjournment on behalf of Mr. Clark. The agent reported that Mr. Clark had requested further disclosure. There was no indication on the record what the missing disclosure was, but on February 16, 2016, an agent appeared indicating that Mr. Clark had requested and received dispatched logs and wanted to review the entire file with his client.

[32] The appellant attended only one of the seven initial appearances in this matter. The agents who appeared on his behalf and counsel Mr. Clark made no mention of the video as piece of outstanding disclosure during any of these seven appearances.

[33] On March 1, 2016, the appellant appeared personally and an agent appeared on behalf of Mr. Clark confirming that a designation had been filed on November 24, 2016, and requesting a trial date to be set for May 24, 2016. Neither the appellant nor his counsel referred to any outstanding disclosure and both were prepared to set a trial date. There is no evidence filed to suggest that the appellant’s counsel has been unable to view the video or discuss the contents of it with his client in the four months that he was retained.

[34] On March 31, 2016, an agent appeared on behalf of Mr. Clark indicating he wished to be removed as counsel of record. The appellant was present. The presiding judge reviewed the history of the file. The judge allowed the withdrawal. He also told the appellant that the May 24, 2016, trial date could be accommodated should he obtain new counsel.

[35] On May 24, 2016, the appellant did not show up for his trial. The Crown informed the court that the appellant had contacted them a few days earlier indicating he could not make it. The Crown told the appellant to send a representative. The appellant’s mother and his girlfriend Ms. Gwen Tuppert appeared on the appellant’s behalf and stated the appellant could not attend because he had just started a new job. Ms. Tuppert reported that “we” do not have disclosure. When asked when the disclosure was requested, Ms. Tuppert explained that the appellant had only requested disclosure recently because he believed his former lawyer was going to keep it until he got a new lawyer. She also reported that when the disclosure was ready, the appellant had been unable to attend the Crown’s office to retrieve it.

[36] The Crown informed the court that there had been numerous discussions with the appellant the previous week where they explained to him the process for obtaining disclosure, but the appellant asserted that he had no intention of showing up in court and would collect the disclosure later. The Crown opposed the trial adjournment given the lengthy history of the matter and that the trial had been ordered to proceed with or without counsel. However, Justice Waugh granted the adjournment recognizing that it is an “age of difficult employment” and the importance of disclosure. Justice Waugh noted that the onus was on the Crown to make sure the appellant knew they had the disclosure and that it was up to the appellant to make a formal application. Justice Waugh also directed the Crown to provide the disclosure to Ms. Tuppert who was present in court on that day. Ms. Tuppert was directed to attend the Crown Attorney’s office in the same building for that purpose.

[37] The appellant acknowledges in his affidavit dated August 18, 2021 (“Affidavit”) that on June 17, 2016, he received a disclosure package from the Crown, but that it did not contain the video. He acknowledges he was informed to contact the Napanee OPP detachment and indicates he did so between June 17 and 28, 2016. He states he was told the Crown could send the video to another police detachment. He does not explain why he could not attend their detachment.

[38] On July 15, 2016, the matter returned before Justice Griffin. The appellant was not initially present. The Crown Ms. Monica Heine explained that the appellant had met with her and duty counsel on June 17. The Crown had provided the appellant disclosure and informed the appellant of the Crown’s position. Justice Griffin noted the “tortured history” of the file and inquired why the matter did not proceed to trial. The matter was stood down to await the appellant’s attendance. When the appellant arrived, a new trial date was set for October 4, 2016.

[39] At this juncture, the appellant had written five letters requesting disclosure and had highlighted in the letters of May 19 and June 1, 2016, that he was still seeking the video. However, it is also clear from the record that the appellant had a discussion with the Crown about attending their office to view the video because on July 13, 2016, just two days before court, the appellant wrote to the Crown Attorney’s office to confirm an appointment for viewing the video. He suggested his preference was to view it on July 15, 2015, between 3 and 5 p.m.

[40] The appellant states in his Affidavit that he expressed concerns on July 15th about disclosure, and specifically the recordings, but I find the transcript does not indicate any meaningful discussion of the issue. The excerpt from the transcript of July 5th on the issue of disclosure is limited to the following:

The Court: October 4th for you trial. Thank you. Mr. Cornell: thanks. Ms. Heine: thank you Mr. Cornell: And, uh, so then the rest, like getting the screen, or the, uh, the recordings, I believe, is that also the uh, the incident report, you know, when th operator….got (ph) the audio for that …. Ms. Heine: You’ve got all the disclosure that we have. Mr. Cornell: Is it there? So, I guess, that’s, that’s sent to, uh, Elgin Street Police Station Ms. Heine: I told you to speak with Ms. Maycock (ph) downstairs and she’ll make… Mr. Cornell: Okay. All right. I just want to make sure that’s…. The Court: Okay, sir, no that’s fine sir. You understand the trial is going to proceed that day with or without your lawyer, right. Right now you’re representing yourself. If you get a lawyer that’s good you don’t have to. October 4th for trial. Mr. Cornell: Exactly. Thank you very much….

[41] The appellant does not inform the court that he is having difficulty with accessing the video as per the Crown instructions. This is likely because he had himself scheduled a viewing at the Crown’s office that day. The transcript indicates that Ms. Heine directed the appellant to attend the Crown’s office downstairs and speak to Ms. Maycock. The appellant acknowledges in his Affidavit that he did attend, but does not elaborate what further discussions took place. He simply states he was not given an opportunity to view the video at the time. On the other hand, the Crown who presided at trial indicated to the trial judge that according to Crown Attorney Heine who was present in court on July 15th, the appellant was given an opportunity to view the video on a computer just like he had on the morning of trial, but the appellant disappeared from the building and never returned. The trial judge accepted this evidence.

[42] On July 29, 2016, the appellant sent another letter to the Crown’s office confirming that he would be available to view the video at their office on July 29, 2016 after 3:00 p.m. It is unclear what transpired on that date, but on August 10, 2016, a Senior Crown Attorney wrote to the appellant and directed him to contact the Napanee OPP detachment to view the video.

[43] The appellant later retained another counsel David Anber. On September 20, 2016, an agent for Mr. Anber requested an adjournment of the trial date because Mr. Anber was not available on October 4, 2016 due to a religious holiday. A new trial date was set for February 23, 2017. However, on November 22, 2016, Mr. Anber was removed as counsel of record. It is unclear what disclosure Mr. Anber reviewed and discussed with the appellant in the period in which he was retained.

[44] The matter was adjourned to November 29, 2016. The appellant did not appear on that date. A trial date was confirmed for February 28, 2017, with or without counsel.

[45] Following Mr. Anber’s discharge, the appellant was once again representing himself. The appellant continued to write to the Crown’s office requesting outstanding disclosure. On December 13, 2016, he wrote specifically requesting PC Detlor’s supplementary notes and if they could not be provided, an explanation for non-disclosure. On December 21, 2016, the appellant wrote to the Crown’s office informing them that it had been recommended to him that he obtain all of the disclosure in regards to the police notes and breath room videos before his potential lawyer can provide a detailed opinion on the merits of his defence and an estimate cost for the upcoming trial date. The appellant requested the breath room videos and notes of P/C Detlor to be forwarded ASAP to his residence in Ottawa and offered to pay for the costs of delivery. He also requested information on what was not being provided to him and an explanation for such non-disclosure. The appellant does not address in either letter whether he contacted the Napanee OPP Detachment to watch the video and why that option was not feasible.

[46] On January 11, 2017, the Crown emailed the appellant to tell him that additional disclosure was available for pick up at the Crown’s office. The appellant replied asking whether it contained the breath room video and PC Detlor’s notes. It is unclear what further correspondence there was between the Crown and the appellant, but what is clear is that the appellant filed a disclosure motion shortly after which was scheduled to be heard for February 16, 2017. According to the trial judge, who was also present on the motion date, the appellant did not show up for the motion due to alleged car trouble. The motion was rescheduled to be heard on the trial date. The appellant did not file a transcript of the February 16, 2017, proceeding.

[47] The Crown argues this is not a case of non-disclosure because the appellant’s initial counsel was given the video and he did view it prior to trial. I do not find, however, that providing the video to counsel discharged the Crown of its disclosure obligations. The Crown’s disclosure obligation is ongoing: R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1. When the appellant became self-represented, the Crown was obliged to provide the disclosure to him or alternatively, explain why it could not provide all or portions of the disclosure.

[48] In this case, the Crown did inform the appellant of the process for obtaining the disclosure when the appellant became self-represented and the appellant did obtain the bulk of the disclosure. However, because the appellant was self-represented, the Crown refused to provide him the video for personal viewing. The Crown argues that it was entitled to refuse because one, privacy interests of the police are engaged by the creation of any video that is made as part of an investigation, and two, security interests need to be considered since the video captures a secure location inside a law enforcement facility. The Crown argues it is not in the interest of police or public safety for footage of such facilities to be disseminated. The Crown takes the position that its policy of requiring self-represented accused persons to attend at a location to view the video is reasonable in these circumstances.

[49] The Crown has a legal duty to disclose all relevant information to the defence, but the duty is not absolute. The Crown has discretion to withhold information or control the timing and manner of disclosure in certain circumstances: Stinchcombe at paras 19-21; R. v. Papageorgiou, 65 O.R. (3d) 1 2003 ONCA at para 8. For example, where records give rise to issues of privilege or relevance, the Crown may have valid reasons to withhold information: Stinchcombe at para 20.

[50] In addition, there may be circumstances in which the Crown is entitled to restrict the accused’s access to certain categories of disclosure containing sensitive information, including video recordings. In these instances, the disclosure obligation may be satisfied by providing the applicant with an opportunity for private viewing: R. v. Blencowe, [1997] O.J. No. 3619 at paras 28, 51, and 52. Papageorgiou, at para 10. Requiring a self-represented person to view a video in a controlled environment may not always be ideal, but has been found to be reasonable: R. v. Calabrese, 2018 ONCJ 609 at para 15.

[51] The problem with the Crown’s argument that it was justified in its refusal is that even if the reasons for limiting the appellant’s access to the video were reasonable in these circumstances, the Crown never explained its policy to the appellant. In fact, the appellant had specifically written in his letters of December 13 and 21, 2016, that he wished for an explanation of any disclosure that could not be provided. Furthermore, the Crown has not filed to date any Crown written policy outlining in what circumstances the manner of disclosure might be limited in the case of self-represented persons. As defence counsel rightly points out, unlike in cases involving witness statements, there is nothing particularly sensitive about police officers asking a detainee to provide breath samples: Papageorgiou at para 11.

[52] It is also not readily apparent what the privacy concerns were as the video shows little more than a room with three occupants in it. Given that the video related to the gravamen of the offence – the act of refusal - I find the Crown had an obligation to disclose it, and if it could not, to provide the appellant an explanation for why it was controlling the manner of disclosure. With that information in hand, the appellant would have been in a better position to assess whether the restrictions on accessing the disclosure were reasonable and in accordance with the Crown policy, and if not satisfied, have the issue determined by the court. The Crown’s discretion to restrict access to disclosure is reviewable and may be overridden if the restrictions impair the accused’s right to make full answer and defence: Papageorgiou at paras. 8, 16, and 17. Crown policies that restrict disclosure do not necessarily prevail over the constitutional right of disclosure: Blencowe at para 55; R. v. Carter, [2018] O.J. No. 1128 at para 50.

[53] The failure of the Crown to adequately explain to the appellant at the time of the proceedings its reason for restricting access to the video is not, however, determinative of whether there was a s. 7 Charter breach. As stated in R. v. Bramwell, the disclosure process is one which engages both Crown and defence and the appellant cannot remain a passive receiver of information: R. v. Bramwell, (1996), 106 C.C.C. (3d 365 (B.C.C.A.), Aff’d , [1996] 3 S.C.R. 1126, cited at paragraph 37 of Dixon.

[54] The applicant relies on his correspondence to the Crown to demonstrate his diligence in obtaining disclosure. The appellant sent letters to the Crown requesting disclosure on May 19, June 1, June 16, June 28, July 3, July 15, August 31, and December 21, 2016. Due diligence, however, cannot be assessed solely on the number of letters written by the appellant. The court must also consider the ongoing dialogue between the Crown and the appellant on disclosure, the opportunities provided to the appellant to view the video, and the appellant’s own failure to follow through on these opportunities or seek further guidance from the court.

[55] While the Crown may have fallen short in failing to explain its policy for restricting release of the video, it is clear that the Crown continued to make efforts to have the appellant view the video at their office and the police detachment. The appellant was given an opportunity to view the video at the Crown’s office on July 15, 2015, but the evidence suggests, which the trial judge accepted, that he did not follow through. Following this, a Senior Assistant Crown Attorney responded to the appellant’s disclosure requests on August 10 and 31, 2016, and advised the appellant that some disclosure had already been provided to him on May 19, 2016, and that other materials requested, such as the notes of P/C Detlor would be forwarded upon receipt. With respect to the video, the Crown directed the appellant to contact the Napanee OPP Detachment to arrange for a mutually convenient time to review the audio/video material. The appellant states in his Affidavit that he contacted the Napanee detachment, but does not explain why he did not attend there for viewing.

[56] In assessing due diligence, I must also consider the appellant’s failure to raise the issue in the months preceding trial including his failure to attend his own disclosure motion. Of the 16 court appearances leading up to the final trial date, the appellant only attended court on five occasions and never once raised with the court an inability to access the video. As Justice Griffin right pointed out in his s. 7 Charter ruling:

Mr. Cornell says he’s never had a chance to see that video. There is in my view the letter of August 10th, 2016 signed by Senior Assistant, Crown Attorney where Mr. Cornell is told that he can contact Sgt. Watkins at 354-3369 to arrange for a mutually convenient time to review the audio/video material in this case that he had that chance. He had that chance and that it was made available to him. I also accept Mr. Floyd’s submissions to me, the Senior Assistant Crown Attorney, that there was another time where Mr. Cornell was in the building and Crown Attorney, Ms. Hind, was present and he could’ve that day looked at the video. But I know because I was here on over 16 occasions where if this man had come, I would’ve said, show him the video, but he chose not to come. No, no, no, there’s been no violation of this man’s disclosure, there’s been no s.7 violation. The application is dismissed. [Emphasis mine]

[57] Furthermore, the appellant filed a disclosure motion which was scheduled to be heard on February 16, 2017, approximately 10 days before trial. The appellant did not show up to court for the motion because of alleged car trouble. Had the appellant attended, he would have had ample opportunity to inform the court that he had not yet viewed the video and the matter could have been remedied prior to his trial. He chose not to do so.

[58] Counsel for the appellant argues that given the appellant was self-represented, he cannot be held to the same standard of due diligence that a defence lawyer would be expected to adhere to. The appellant had lost his driver’s license, worked long hours, lived in Ottawa, and had concurrent family law proceedings that took his attention. I respectfully disagree. The appellant was more than capable of navigating the judicial system. He was able to contact duty counsel, retain counsel, and communicate clearly with the Crown on the missing disclosure. This was not a situation where the appellant failed to comprehend what was going on.

[59] While the appellant insists he was he was diligent in his pursuit of disclosure, I find that his failure to attend the Napanee detachment or the Crown’s office to view the video, his failure to raise the issue with the case management judges, and his own absence at the disclosure motion 12 days before trial where the issue could have been resolved constitutes at minimum, a lack of due diligence, and even possibly, as Justice Griffin stated, conduct consistent with someone deliberately intending to delay the matter from proceeding to trial. As Justice Griffin stated at p. 155 of his decision:

I have already ruled that there was no violation, that the Crown has met its obligation for disclosure and moreover, so it’s clear an unequivocal, I am of the view that Mr. Cornell’s approach to this matter has on the record been one of delay and an intention on his part not to have the matter proceed in a timely manner.

There was no s. 7 violation. Full disclosure was provided in a fashion that met the obligations the Crown has to meet the requirements of fundamental justice, and it is true, I accept, that the viewing of the video was somewhat problematic and required in these circumstances some effort on the part of Mr. Cornell requiring to come back to this area to look at the video. But I am of the view that he made no significant effort to follow through on that and quite frankly so if there’s any misunderstanding, it he had arrived on any of these dates that he did not arrive int eh first five months I would have simply said, “Sir, you are going to watch the video today. If it’s here, you’re going to go watch it. Come to the Court, come to where we are. Do not avoid us; do not stay away.” That would have been my answer and I am confident that it would have happened. But he chose to --- and I am not saying that he chose out of anything other than a busy life, but he chose remain away from the Court until today’s date.

[60] The appellant also argues that he was not able to view the entirety of the video on the morning of trial. This issue was addressed at trial. The appellant explained to the presiding judge that he had taken a screen capture when the officer pressed play and that he was only shown 31 seconds of the second clip. The trial judge was not persuaded that the screen capture demonstrated that he did not view the video in its entirety. I would agree. The fact that the appellant took a screen capture of a portion of the video does not in and of itself establish an improper viewing. More importantly, the Crown invited the appellant to examine the officer who conducted the viewing that morning to take the stand about what transpired and the appellant did not take him up on it. Based on the evidence presented, I find that Justice Griffin was entitled to find that the appellant had sufficient opportunity to view the video the morning of the trial.

[61] In conclusion, I find that notwithstanding the failure of the Crown to adequately explain the reason for restricting access to the video, the delayed disclosure in this case resulted from the appellant’s own lack of due diligence. Even if I am wrong on this issue, I find, as discussed below, that delayed disclosure of the video did not affect the trial result or trial fairness.

ii. Did the delayed disclosure of the video affect the trial result or trial fairness?

[62] Where an appellate court finds that the accused’s right to disclosure has been breached, it does not automatically follow that there will be a new trial. The reviewing court must further consider if there is reasonable possibility that the non-disclosure, or in this case delayed disclosure, would have affected the trial result or undermined trial fairness: Dixon at para 24; A remedy may also be available where late disclosure compromises the integrity of the justice system: Barra at para 145; R. v. Bjelland, 2009 SCC 38 at para 23.

[63] A video containing the two clips of what transpired in the detachment breath room on September 15, 2017, was filed as an exhibit on appeal. In the first clip the officers confirmed with the appellant that he understood he was being asked to give a sample and that he was brought to the detachment to obtain a sample even though he had earlier refused. The appellant replied that he understands he is being brought in to do the test and that his position is still “I am saying no”. The appellant states this twice. The officers confirm with the appellant that he understands by refusing to give a sample he is committing a criminal offence to which the appellant replies he understands it is “double jeopardy” and that he is not providing a sample. The appellant states at one point that duty counsel was useless. There is also further questioning by the appellant what the next steps are, what is happening with his vehicle, whether his vehicle will be towed, whether his license will be suspended and whether he can call someone. The appellant is very polite with the officers.

[64] The video continues to run and the appellant is then brought back to the same room where one views the second clip. The officers confirm with the appellant that he has had an opportunity to speak to a second duty counsel and ask him if he is satisfied with what that person said. The appellant replies “yes”. One of the officers suggests to the appellant that he was better treated than the first time, and the appellant replies, “yes, way better”. The appellant is asked if he is going to provide a sample and the appellant replies, “no”. One of the officers asks the appellant if he was told that he could be charged if he didn’t provide a sample and the appellant replies that it was explained to him the reason behind it, that he is fine with it, and that he has no choice. The appellant indicates he does not mean to offend. The officers confirm with him again that he understands his jeopardy, and the appellant replies that he understands his jeopardy. There is further discussion about calling a person who can pick him up.

[65] Upon watching the video, I find the trial judge was correct in concluding that the appellant viewing the video earlier could not have affected the outcome on the charge of refusal. It is evident on the video that the applicant clearly and unequivocally refuses to provide a breath sample after having consulted counsel twice. There is nothing in the video that suggests that the appellant did not understand the officer’s demand or his jeopardy in failing to provide a sample. The appellant indicates clearly in both the first and second clip that he is choosing not to give a sample. The video clips are also consistent with the testimony of both officers.

[66] The appellant argues that delayed disclosure of the video undermined his right to trial fairness. In assessing trial fairness, one must consider the reasonable possible avenues of investigation that were closed to the accused as a result of the delayed disclosure such as missed opportunities to pursue additional lines of inquiry with witnesses or to gather additional evidence arising out of the disclosure material: Dixon at paras 34 and 50. Barra at para 145; R. v. T.S., 2012 ONCA 289 at para 127. The appellant’s diligence in pursuing the disclosure remains a relevant consideration: T.S. at para 127.

[67] The appellant argues that had he received the video earlier, he could have provided it to an expert for analysis of alleged defects. However, the appellant does not elaborate what these potential defects were and how they could have impacted the appellant’s evidence on the refusal. The Crown does not dispute that video had some irregularities, but as Crown explained at trial and continues to maintain, the irregularities consisted of letters and numbers along the top of the images which do not impair a viewer from seeing and hearing the content of the video.

[68] The irregularities were also explained at trial. Cst. Martell testified that when he hit the record button and did the initial test for sound and audio/visual, he did not see those characters. However, during the recording, those letters were added because he believes both clips were made using the same video. Cst. Martell testified he didn’t think it tainted the video quality. I would agree. One can see and hear both officers and the appellant in the video and the characters do not distract from the appellant’s refusal to provide a breath sample.

[69] The other irregularity identified at trial with respect to the video was a discrepancy between the time stamp on the video and Cst. Martell’s notes. When the video was played, the appellant asked Cst. Martell why he had it was 2:17 a.m. when he entered the breath room which was distinct from the time stamp on the video. The trial judge explained to the appellant that in his experience, it was not uncommon to have time discrepancies between the time stamp on videos and the actual time. The trial judge also invited Cst. Martell to provide a further explanation. Cst. Martell testified that there was likely a minute or two difference between the time stamp on the video and the time on his own phone that he used for taking notes and that this time discrepancy applied to both video clips. Cst. Martell explained that it was at 2:17 a.m. when the appellant had started talking about the refusal. Cst. Martell explained that the video ends around 2:26 a.m. because that is the time it took to provide the appellant the opportunity to provide a sample and explain the consequences of not providing a sample. Cst. Martell also explained that between the first and second clips that were watched, there was essentially 20 minutes of dead air, an empty room. The appellant did not cross-examine Cst. Martell further on the time discrepancy or the integrity of the video. Even if there was a minor discrepancy in the video time stamps and the officer’s notes, the appellant has not explained how this discrepancy affected the evidence on the video clips of his refusal.

[70] The appellant suggested to the trial judge that something was amiss with respect to the timeline of events on the night in question. However, his own testimony at trial is largely consistent with the timelines testified to by both officers. The appellant testified that he left Ottawa around 8:45 p.m., arrived at Enroute at 11:30 a.m., turned around and drove the wrong direction for 40 minutes, and then stopped by the side of the road when approached by Sgt. Watkins. The appellant believes he was stopped at 12:45 a.m., but did not specify where he derived this time from. The appellant also believed that he was fingerprinted at around 2:27 p.m., but it was suggested to him that perhaps it was closer to 4 pm which is consistent with Sgt Watkin’s evidence.

[71] Sgt. Watkins testified that after the appellant refused to give a sample, the police began contacting people who could attend to pick him up as they did not believe it was safe to release him in his condition. The police contacted the appellant’s girlfriend Ms. Tuppert who informed them that should she be able to pick up the appellant, she would be driving from Ottawa. To facilitate the pick-up, Sgt. Watkins testified that he drove the appellant from the Loyalist OPP Detachment to the Napanee OPP Detachment around 3 a.m. Sgt. Watkins fingerprinted the appellant at the Napanee detachment and released him from police custody sometime after 6 a.m. The trial judge preferred the officers’ evidence on the timeline of events, and the appellant has provided no basis upon which to interfere with his finding.

[72] The appellant also argues that a forensic analyst could have examined the video to see if it was tampered with. However, the appellant has not made any effort since the trial and before this appeal to have the video analyzed by any expert. Had he done so, and if an expert would have found the video was tampered with, the appellant could have filed fresh evidence on appeal to substantiate his argument. In failing to take this step, the appellant’s argument that earlier disclosure would have allowed him to identify alleged defects or tampering remains purely speculative. The burden is on the appellant to demonstrate that there is a reasonable possibility that the delayed disclosure affected trial fairness and reasonable possibility requires more then speculative arguments: Dixon at paras 33 and 34.

[73] In addition, the appellant argues that not having the video earlier prevented him from properly phrasing questions for the police officers or explaining what he understood when questioned by them. However, the appellant does not elaborate what additional questions he would have asked and how they relate to his defence. Furthermore, the appellant’s cross-examination of Cst. Martell who was the officer responsible for the video focused largely on events outside of the breath room. The appellant queried Cst. Martell about when he arrived at the scene, whether there was other video footage of the appellant’s movements within the detachment, what rights he had been provided, and when he was transported to the Napanee OPP Detachment. Other than the time discrepancy, the appellant did not appear to take any issue with the integrity of the video, the questions that the officers asked in the video with respect to the breath demand, or his own responses and refusal to provide a sample during the video recording. In short, the appellant did not challenge the officers’ evidence of his refusal at trial and has not identified what additional questions he would have asked to challenge the evidence of refusal.

[74] Finally, the appellant had approximately 17 months to prepare for trial. As the Crown points out, the video was not a piece of evidence about which the appellant had no knowledge, either of its existence or its contents. He was a participant in the video and would have been aware of his own conduct and responses to the breath demand on the night in question. Save for the video, the appellant had all the disclosure, including the notes of the key officers Cst. Martell and Sgt. Watkins in regards to the arrest, the breath demand, and the refusal. The appellant has the burden of showing not only that his right to full and timely disclosure was breached, but that the delayed disclosure has some identifiable impact: R. v. Wood at para. 84; Dixon at para 36. I find the appellant has not established that there is a reasonable possibility that the delayed disclosure foreclosed lines of inquiry with the officers.

[75] I find that even if the delayed disclosure of the video was not due to the appellant’s own lack of diligence, the appellant has not established that the delayed disclosure of the video affected the trial result or trial fairness so as to constitute a breach of his s. 7 Charter right to full answer and defence.

Issue 2: Did the trial judge’s remarks and conduct of the trial result in a reasonable apprehension of bias so as to constitute an error of law?

[76] The appellant argues that the trial judge made several comments throughout the proceedings that revealed a reasonable apprehension of bias towards the accused. In particular, the appellant argues the trial judge’s frustration with the pace of proceedings and the use of agents influenced and clouded his reasoning and ruling on the disclosure motion.

[77] Fairness and impartiality is the cornerstone of judging. Judges are sworn to be impartial, and there is a presumption that judges will respect their oath of impartiality. This presumption can be displaced only where there is cogent evidence demonstrating that a judge has engaged in conduct or commentary that gives rise to a reasonable apprehension of bias: R. v. R.D.S., [1997] 3 S.C.R. 484 at para 117.

[78] The test for determining reasonable apprehension of bias is ‘what would an informed person, viewing the matter realistically and practically, and having thought the matter through –conclude. Would he think that it is more likely than not that the decision maker, whether consciously or unconsciously, would not decide fairly.”: R.D.S. at para 31 quoting Grandpre J. in Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369. Put more simply, is there must be some indication that the judge was not approaching the case with an open mind fair to all parties: R.D.S at para 49.

[79] Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high: R.D.S. at para 113. When one alleges reasonable bias, one is calling into question not simply the personal integrity of the judge, but the entire integrity of the administration of justice.: R.D.S. at para 113.

[80] The appellant argues that the judge’s comments in reviewing the history of the proceedings leading up to trial which included remarks about the stuttered pace at which the matter came to trial, the appellant and counsel’s absences at many court proceedings, the multiple adjournments including of trial dates, the propriety of withholding certain types of evidence from self-represented persons, and the judge’s reliance on emails from the Crown’s office informing the appellant he could make arrangements to view the video, were indicative of bias. I respectfully disagree.

[81] The judge’s commentary on the above-noted issues must be examined in the context of the circumstances in which they arose and in light of the whole proceeding: R.D.S. at para 141. The trial judge had no cause to review the history of the proceedings or examine the conduct of the appellant, counsel, and Crown during those proceedings, including correspondence between them, but for the fact that the appellant brought a motion for non-disclosure twelve days before the trial and having already adjourned two previous trial dates.

[82] As already discussed, an integral component of the disclosure motion was the appellant’s diligence in obtaining disclosure. As explained by the Ontario Court of Appeal in R. v. Sandeson, 2020 NSCA 47, part of the rationale for requiring the accused to be diligent in the pursuit of disclosure is to catch non-disclosure as early as possible with the hope of curing any resulting prejudice without need for a new trial and to discourage tactical decisions not to pursue disclosure: Sandeson at para 69.

[83] It is for this reason and in this context that the judge reviewed each of the previous court appearances, many of which he presided over, to determine who was present, what transpired, and whether the appellant raised the issue of his inability to access the video. While the trial judge may have made some passing comments about the pace of the proceedings over 17 months and his own frustration for not having better handled the case, his primary focus was on determining whether the appellant had been provided reasonable opportunities to access the disclosure and/or raise the matter with the court in order for him to rule fairly on the disclosure motion. Furthermore, given the responsibilities on case management judges post-Jordan to move cases efficiently through the criminal courts and to ensure that persons are tried withing a reasonable time, the judge’s frustration at the pace of proceedings is entirely understandable.

[84] Ultimately, the trial judge concluded that the appellant had multiple opportunities to raise the issue of disclosure with the court and moreover, had the appellant raised the issue, he would have as the presiding judge on many of those court dates, assisted the appellant in resolving the disclosure issue. Seen in this context, I find that a reasonable, informed member of the public, viewing the matter realistically and practically, would not conclude that the trial judge was biased, but on the contrary, that he was engaged in a fair and thorough analysis of the case history for the purpose of assessing due diligence and determining the merits of the appellant’s motion. I find there is no basis to conclude that the trial judge’s comments or conduct in this case demonstrated reasonable apprehension of bias.

[85] The appeal is dismissed.

Somji J. Released: February 28, 2022