Introduction

1The applicant seeks a stay of these proceedings on the basis that the Crown has lost material evidence thereby compromising his fair trial rights. In the alternative, it seeks the exclusion of certain evidence.

[2] The applicant is charged with dangerous driving causing death arising from a collision that occurred on

Chronology

January 6, 2021, in London, Ontario. The accused was driving a Kenworth Hydro-Vac truck which failed to stop at a stop sign. When he took evasive action, the truck tipped and crushed an adjacent Hyundai vehicle whose driver did not survive her injuries.

3The applicant gave a statement to police on the day of the collision. He said that when he deployed the brakes, the truck did not slow enough to stop at the intersection. He wondered whether “brake fade” accounted for it. He also told police that the truck was fully loaded at the time.

4Logan Clarke, who was a passenger in the truck, also provided a statement. He told police:

So we were coming up to the stop sign, we were fully loaded, there was a lot of extra weight to the truck. Must have been coming up too fast tried slowing down and breaking [sic] and ugh then didn’t have time to stop so he decided to swerve because there was a car coming towards us. So tried to avoid it and swerved, all the weight and the momentum of the truck tipped it.

Chronology

January 6, 2021

Collision Truck towed to Ross Towing facility Truck inspected by London Police Service Officer Blair Jackson, a certified Commercial Motor Vehicle Inspector and collision reconstructionist

January 11, 2021

Truck inspected by Dan Funk, a Class A mechanic with Ross Towing

January 12, 2021

LPS released truck to its owner PGC Services located in Stouffville, Ontario

January 29, 2021

PGC moved truck to Impact Auto Impound, also in Stouffville

February 11, 2021

Accused charged with dangerous driving causing death

February 16, 2021

Initial defence request for disclosure

May 11, 2021

Crown disclosure provided

May 19, 2021

Further defence request for disclosure Defence counsel contacted LPS seeking to arrange an inspection of the truck Counsel advised vehicle at Impact in dry storage

June 18, 2021

Defence granted access to truck by PGC

November 19, 2021

PGC transferred ownership of truck to Economical Mutual Insurance Company, which removed the truck’s plates

December 21, 2021

Economical transferred ownership to Hammer Equipment & Powersports Inc. in Wainfleet, Ontario

September 14, 2022

Defence counsel contacted Hammer seeking access to vehicle for inspection by an engineer Permission granted.

The Truck

5The Hydro-Vac truck is a specialized machine that is used for minimally invasive excavating. It uses high pressure water to break down and liquify soil, which is then removed by vacuum and placed in tanks mounted on the truck.

6The truck is equipped with an automatic shut-off system that operates when it reaches its gross vehicle weight rating, which the defence suggests is the maximum weight at which the vehicle can be safely operated.

Police Inspection

7During the course of the inspection of the truck, the following evidence was gathered, preserved and has been disclosed to the defence:

a. Mechanical inspection by Dan Funk;

b. Mechanical inspection by Officer Blair Jackson;

c. Photographs of the truck at the scene, including numerous photos of the truck’s brakes, brake lines, and tires;

d. Photographs of the truck after it was removed from the scene and stored at Ross Towing;

e. Data from the truck’s GPS system, which captures the truck’s route and speeds throughout the day of the collision;

f. Data from the truck’s Forensic Link Adapter, which measures and records, among other things, any mechanical issues, braking events, and speeds;

g. Data from the Bendix Diagnostic system, which records any mechanical issues with the anti-lock braking system;

h. Photographs of the Hyundai both at the scene and at Ross Towing;

i. Data from the Hyundai’s Collision Data Recorder, which showed the speed of the Hyundai in the seconds prior to the deployment of the airbag.

Cause of Collision

8Constable Jared Park, a collision investigator at LPS, concluded that the collision was caused by three factors:

(1) the accused was speeding;

(2) the truck was overloaded; and

(3) the accused did not engage the brakes soon enough to stop the truck in time.

9The GPS data discloses that the truck reached a peak speed of 92 km/hr 25 seconds before the collision, which was in excess of the 70 km/hr speed limit. The truck slowed to 52 km/hr as it entered the intersection and turned to the right to avoid the Hyundai. The truck slowed to 30 km/hr at the time of impact.

10The Forensic Link Adaptor disclosed that there were three hard braking events in the seconds before the collision. The Bendix Diagnostics system showed no brake failure at the time of the collision.

11Officer Jackson also determined that the truck was 3,750 kg overweight at the time of the collision, even after spilling a significant volume of material.

The Defence Position

12The applicant submits that he requires access to the truck to determine its weight at the time of the collision and the condition of the brakes. The defence is particularly interested in the truck’s weight because it surmises that either the hydro-vacuum equipment was not engineered to the specifications of the chassis on which it was mounted, or the automatic shut-off system was faulty. It submits that the weight of the truck would have an effect on braking distance. It argues that the evidence was lost when LPS released the vehicle to PGC and as a result, the charge should be stayed or the evidence excluded.

The Crown’s Position

13The Crown submits as follows:

(1) evidence of the truck’s mechanical fitness is neither lost nor destroyed;

(2) there was no breach of the right to disclosure;

(3) there was no unacceptable negligence on the part of LPS;

(4) the defence has failed to act with due diligence in arranging its own inspection;

(5) there is no prejudice;

(6) a stay would be disproportionate and unjustified.

The Law

14The leading cases on the issue of lost evidence are R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 and R. v. Bero, 2000 CanLII 16956 (ONCA). In La, the police misplaced a tape recording of an early interview of a complainant for reasons unrelated to and before a criminal investigation of the accused began. The Court commented as follows:

The Crown’s duty to disclose all relevant information in its possession gives rise to an obligation to preserve relevant evidence. When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. The Crown fails to meet its disclosure obligations where it is unable to satisfy the judge and s. 7 of the Charter is accordingly breached. Such a failure may also suggest that an abuse of process has occurred. An accused need not establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

The court, in determining whether the Crown’s explanation is satisfactory, should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the police or the Crown took reasonable steps to preserve the evidence for disclosure. The relevance that the evidence was perceived to have at the time must be considered; the police cannot be expected to preserve everything on the 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. As the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

15In Bero, the accused was charged with impaired driving causing bodily harm. The only issue at trial was the identity of the driver. The car involved in the accident was towed to a police garage for mechanical inspection. Some months later, the vehicle was sold to an auto wrecker and destroyed. The defence sought a stay on the basis that its right to make full answer and defence was infringed. The accused submitted that he was prevented from conducting DNA analysis that might have exonerated him. Although the court concluded that a Charter breach had occurred, it declined to order a stay of proceedings. Other measures were available to attenuate any prejudice.

16The court summarized the proper approach to be taken in the analysis, quoting from R. v. F.C.B. (2000), 2000 NSCA 35, 142 C.C.C. (3d) 540 (N.S.C.A.):

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

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.

Is the Evidence Lost of Destroyed?

Is the Evidence Lost or Destroyed?

17The first step in the analysis requires a determination whether the evidence has been lost. If the evidence is not lost or destroyed, no further analysis is required. The onus is on the applicant to demonstrate on a balance of probabilities that the evidence has been lost or destroyed.

18I pause here to note that both the defence and the Crown were content to have the issue determined at this stage of the proceedings and in advance of jury selection.

19The Crown correctly notes that it is preferable for judges to rule on stay applications after evidence is complete. See, for example, Bero at para. 18 where Justice Doherty wrote that “except where the appropriateness of a stay is manifest at the outset of the proceedings, a trial judge should reserve on motions … until after the evidence has been heard”.

20Nevertheless, because the determination of whether the evidence has been lost or destroyed had a potentially dispositive result, I considered it appropriate to hear the application.

21In the circumstances of this case, I find that the defence has not established on a balance of probabilities that the evidence has been lost or destroyed. There is no evidence that the brakes or sensor or other parts have been lost, damaged or destroyed while the truck has been in storage. The Crown has preserved the various reports generated during the truck’s inspection immediately after the collision.

22The applicant has not demonstrated that he cannot access the truck or that he cannot obtain an independent mechanical inspection. The applicant was aware as early as May 19, 2021 that the truck had been released by the LPS to its owner. An opportunity to inspect was afforded at that time and again in September of this year. When counsel’s assistant wrote to Hammer on September 14, 2022, regarding an inspection, she said “we will gather any pictures and truck information that we need the day of viewing and won’t need the truck again thereafter”.

23I was advised by Mr. Reidy during oral argument that the defence has in fact obtained an expert report that it intends to use at trial, but no evidence was proffered that the expert’s ability to conduct an inspection was impaired because of the truck’s release to PGC, Economical or Hammer.

24The defence made no request for a preservation order at any time. This application was not brought until November 1, 2022.

25It is also noteworthy that when the judicial pre-trial in the Superior Court of Justice was conducted on October 22, 2021, no complaint was raised about the whereabouts of the truck. The only pre-trial motions that were contemplated related to the accused’s statement to police.

Conclusion

26The applicant has not demonstrated that the evidence has been lost or destroyed. It is unnecessary to undertake any further analysis.

27The application is dismissed.

Justice H.A. Rady

Released: December 7, 2022

COURT FILE NO.: CR-21-00000208

DATE: 20221207

ONTARIO

SUPERIOR COURT OF JUSTICE

HIS MAJESTY THE KING

– and –

CHRISTOPHER HAMILTON

RULING ON charter APPLICATION

Justice H.A. Rady

Released: December 7, 2022