Court File and Parties
COURT FILE NO.: CR-23-10000334-0000
DATE: 20230630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Vito BAILEY-RICKETTS
Glen Crisp, Adam Schultz, & Daniel MacAdam, for the Crown
Mark Hogan, for Bailey-Ricketts
HEARD: June 29, 2023
G. ROBERTS J.
Reasons for Judgment
[1] Vito Bailey-Ricketts complains that his right to make full answer and defence has been violated by the loss of April 21, 2020 video footage from the covert camera outside 568 Lauder Avenue. In particular, he complains that the loss of the video prevents him from showing that Kyle Guillaume’s grey or silver knapsack, which proved to contain drugs when Mr. Bailey-Ricketts, Victoria Dittmer and Kyle Guillaume were arrested near Barrie on April 21, 2020, was not in the BMW when Mr. Bailey-Ricketts and Ms. Dittmer left 568 Lauder earlier on April 21, 2020. As a remedy, he asks that I draw the inference that this bag was not in the BMW when Mr. Bailey-Ricketts and Ms. Dittmer left 468 Lauder on April 21, 2020, and that it belonged to Kyle Guillaume.
[2] Lost evidence applications are generally heard at the end of a trial, after the evidence is complete, as only then can prejudice be assessed and both the right and remedy properly analyzed: R. v. Bero, (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545 (Ont.C.A.). In this case, counsel agreed that the application could be heard at the conclusion of the Crown’s case.
[3] In addition to the evidence it called as part of its case, the Crown called evidence in response to the lost evidence application, specifically, additional evidence from Detective Patrick Plunkett and evidence from DC John Angus.
[4] Defence counsel did not call any evidence on the lost evidence application.
[5] After considering the application in light of all the evidence, and the submissions of counsel, I find there is no violation of s.7. As a result, there is no need to consider what remedy is appropriate.
Evidence on the Lost Evidence Application
[6] Detective Plunkett’s March 27 and April 21, 2020 observations from the covert camera outside 568 Lauder are part of the evidence at trial. However, Detective Plunkett also provided evidence specific to the lost evidence application relating to his efforts to save the footage from both dates, and his inability to later retrieve the footage from April 21, 2020, in response to a disclosure application.
[7] Det Patrick Plunkett was one of three detectives in charge of operation Sunder. Around 7 pm on April 21, 2020, he reviewed footage from earlier that day from the covert camera outside 568 Lauder Avenue. He bookmarked the footage on the system, so as to save it, and clipped stills from the footage which he inserted into the report he made about his observations (Exhibit 1 on voir dire). He observed the following:
- At 10:58 am the BMW CHTL 224 arrived and parked on the street outside 568 Lauder Ave.
- At 10:59 am Ms. Dittmer exited driver’s seat of BMW, opened the rear hatch of the BMW, looked through the trunk area, then returned to the driver’s seat.
- At 11:00 am Mr. Bailey-Ricketts exited front passenger seat, opened the rear hatch of the BMW, looked through the trunk, then returned to the front passenger seat.
- At 11:05 am Mr. Bailey-Ricketts entered 568 Lauder, appearing to use a key.
- At 11:14 am Mr. Bailey-Ricketts emerged from 568 Lauder and got back in the BMW.
- Neither Ms. Dittmer or Mr. Bailey-Ricketts were carrying any bags.
- When the rear hatch was open it was possible to see inside the BMW, but the view was obstructed by the person who opened the hatch standing in front of the open trunk. Det Plunkett could not recall seeing anything in the trunk. A close up from the covert camera would be so pixilated it would be blurry.
[8] Det Plunkett recognized Ms. Dittmer and Mr. Bailey-Ricketts from previous observations he had made of them. In addition, Mr. Bailey-Ricketts was wearing the same jacket that Det Plunkett had observed him wearing on March 27, 2020, and LBS data in relation to Mr. Bailey-Ricketts’s telephone showed that it was in the vicinity of 568 Lauder Avenue at the relevant time.
[9] Det Plunkett explained that footage from the covert camera must be bookmarked on the Genetec system in order to save it otherwise it will be over-written by new footage. Generally footage needs to be reviewed about every 24 hours and anything of interest bookmarked in order to preserve it. Detective Plunkett explained that in order to bookmark something, you go to the point in the video which you want to preserve, click on an icon, name the footage in a text box that pops up, and click ok. This will preserve the footage beginning 30 seconds earlier, and continuing for another 5 minutes. When footage is book-marked a flag shows up at the bottom of the screen on the time counter.
[10] Det Plunkett explained that it was his practice to bookmark footage where he made a report about the footage, and did so in this case in relation to the reports he made about covert camera footage from 568 Lauder on March 27 and April 21. It was also his practice to check for the flag that appears when footage is bookmarked, to ensure it worked, but he did not have a specific recollection of doing so in this case. Det Plunkett took screenshots of his observations from April 21, 2020 (exhibit 1B on the lost evidence voir dire). He also took screenshots of his observations from March 27, 2020 (exhibit 1A on voir dire).
[11] Det Plunkett discovered that the footage from April 21, 2020 was not preserved when he was asked to respond to a disclosure request from the defence on August 30, 2022. He was informed on Sept 6, 2022 by John Angus at intelligence systems support that the bookmarks were made but a technical issue resulted in the footage not being saved. Det Plunkett could not explain what happened, but noted that the team had difficulty with the covert camera throughout project Sunder, such as cameras freezing, not moving as required, and being unable to review footage in order to make bookmarks. In June of 2020, Det Plunkett wrote an email to John Angus at Intelligence systems complaining that he could not review footage from the camera at 96 Virtue, and expressing frustration with the Genetec system. A little over an hour later he received a reply that the Genetec software was a good system, and most problems resulted from the way the software was being used. However, DC Angus also recognized that there were problems with Genetec, “many of which revolve around bookmarking and preserving video”, and provided a list of planned improvements to “alleviate this bookmarking problem that seems to keep coming back” which included a software update to the latest release (exhibit 2 on voir dire).
[12] Detective Constable John Angus is one of two systems specialists at intelligence services within the TPS responsible for all the computer systems used at intelligence services, from the individual computers to the network and server structure. The TPS uses Genetec software to save relevant video from various different police video cameras. In general, each camera will have local storage for some period of time, generally between 24 hours to 7 or more days, depending on the camera and what is recorded. The footage must be viewed within the period of time it is saved on the local camera storage, and any relevant portion bookmarked on the Genetec system, otherwise it is erased and recorded over. The bookmark will cause the relevant portion to be saved on the police network. This is programmed to occur every hour.
[13] While Project Sunder was running in 2020 and before, there were some issues with the Genetec software and the police computer system. DC Angus explained that his June 2020 email response was about the difficult and convoluted process involved in reviewing and preserving footage where the camera did not have local storage, which was the case with the camera at 96 virtue. In addition, there were issues with the web version of Genetec that the police were using at the time, which sometimes prevented adding or reviewing bookmarks. More generally, hardware and software needed to be updated as part of regular maintenance, and a newer version of Genetec was available.
[14] In March of 2021, DC Angus discovered that occasionally the Genetec software would not download bookmarked video as it was programmed to do, or would stop part way through. As a result, daily manually checks were put in place to ensure that any bookmarked video had downloaded properly as it was programmed to do.
[15] In November of 2022, when a disclosure request was made, DC Angus learned that there was a problem with the covert camera at 568 Lauder Avenue. When he looked into it, he could see that footage from April 21 had been bookmarked, but it did not save to the network. He believed that the Genetec software failed to download the bookmarked footage, as it was programmed to do. The fact that Det Plunkett took screen shots of images that he also bookmarked should not have affected the bookmarking process. In addition, the footage could not have been accidentally deleted; once something is bookmarked, only a systems administrator can delete it.
[16] The TPS hardware and software has been refreshed since the download issue was discovered, and the latest version of Genetec is running. In addition, the police are not relying so heavily on bookmarks, and instead relying more on servers. If they have to use bookmarks, it is now standard practice to manually monitor these every day, but since the servers have been replaced there have been no problems.
Legal principles
[17] The principles of fundamental justice protected in the s.7 right to life, liberty and the security of the person include the right to make full answer and defence, which includes a duty on the Crown to make full disclosure. The police in turn have a duty to preserve relevant material in their possession so that the Crown can disclose it.
[18] Where an applicant shows that disclosable evidence has been lost, this violates s.7 unless the Crown can explain the loss, and show that it did not occur through unacceptable negligence. The Crown can do this by showing that reasonable steps were taken in the circumstances to preserve the evidence: R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680, at paras. 20-22; R. v. Hersi, 2019 ONCA 94, 373 C.C.C. (3d) 229, at para. 30; R. v. Janeiro, 2022 ONCA 118 at para.107. There is no universal standard of care that the police and the Crown must meet in safeguarding possible evidence, instead what is reasonable will depend on the circumstances known at the time, including: the relevance or importance of the evidence; whether substitutes or alternatives exist; the reasons for the loss; and the conduct of the defence.
[19] In addition, the accused may show that material is so important that its loss undermines the fairness of the trial: R. v. La, at para. 24; R. v. Bero, at paras. 49,52; R. v. Janeiro at para.109. It is not enough to show a reasonable possibility that the lost evidence could have assisted the defence, even where the inability to determine whether the lost evidence was harmful, helpful or neutral to police is because police lost it. Rather the applicant “must establish that the evidence would have played an important role in their defence”: R. v. Janeiro, at para. 109.
[20] In the event of a breach of s.7, s.24(1) of the Charter entitles the applicant to a just and appropriate remedy. Whether a remedy should be granted and, if so, what that remedy should be, turns on the prejudice caused by the breach: R. v. La, at paras. 24-25; R. v. Bero, at paras. 42-43; R. v. Hersi, at paras. 25, 36; and R. v. Atwima, 2022 ONCA 268 at para.101.
Analysis
[21] I am satisfied that the Crown has discharged its burden of showing that the footage from April 21, 2020 was not lost through unacceptable negligence. In reaching this conclusion, I rely on the following facts and circumstances:
- I accept Det Plunkett’s evidence that he properly bookmarked the footage from April 21, 2020 so as to preserve it. Indeed, there is no dispute about this. Det Plunkett knew any footage from April 21, 2020 from the 568 Lauder Avenue covert camera was important, based on the intercepted communications, and reviewed footage that day, well within the window of time required to preserve it. He had received instruction on the Genetec software and knew how to use it. He appears to have successfully save footage from other dates relating to the covert camera outside 568 Lauder (namely the March 27, 2020 footage). He took screen shots at the same time as he reviewed the footage.
- I am satisfied that in April of 2020, police were not aware of specific issues relating to footage that had been properly bookmarked not being downloaded and preserved. During argument, defence counsel reminded me of the line DC Angus’ June 30, 2020 email (exhibit 2) that “there are some problems with Genetec, many of which revolve around bookmarking and preserving video”. When I consider this line in the context of the email as a whole, and DC Angus’s evidence about what he was writing about, I am satisfied that DC Angus is referring to difficulty using the bookmark function in order to preserve video, not that properly bookmarked video was somehow not being preserved. I accept DC Angus’ evidence that the first time he learned that video that had been properly bookmarked was not always being preserved was in March of 2021, at which time manual daily checks were implemented to ensure bookmarked video was in fact properly downloaded.
- Since the investigation in this case, police have upgraded their hardware and software, and are running the latest version of Genetec. The upgrades mean there is less reliance on bookmarks, but DC Angus noted that the system of manual daily checks has been maintained.
[22] In addition, I am satisfied that the defence has not shown that the lost evidence is so important that its loss undermines the fairness of the trial. More specifically, the defence has not established that the lost evidence would have played an important role in the defence. I reach this conclusion for two reasons. First, I do not believe anything was actually lost. Second, even if I am wrong about this, and some evidence was lost, it is not significant in the circumstances of this case.
[23] Beginning with whether any evidence was actually lost, I accept as a general proposition that a witness’ evidence of what they saw on surveillance video is not the same as the actual surveillance video. The video is separate evidence that can provide more information, especially if the witness was focused on something in particular, as was the case here. In the circumstances of this case, however, I do not believe any evidence was lost. I accept Det Plunkett’s evidence, as supported by the screen shots he took of the lost video, that when Ms. Dittmer and Mr. Bailey-Ricketts opened the trunk of the BMW they blocked the view into the trunk. In addition, a blind, or something that looked like a blind, ran across the camera lens of covert camera obscuring part of the view into the trunk. Further, Det Plunkett explained that zooming in would pixelate the image to the point nothing could be seen. In all these circumstances, I do not believe the video would have assisted in showing the contents of the trunk of the BMW at the time Mr. Bailey-Ricketts and Ms. Dittmer left 568 Lauder on April 21, 2020.
[24] More importantly, even if the video could show that the grey or silver backpack was not in the BMW when Mr. Bailey-Ricketts and Ms. Dittmer left 568 Lauder on April 21, 2020, that is not particularly significant in the circumstances of this case. The Criminal Code provides that possession may be personal, constructive or joint. The particular form of possession is not important; what is important for all forms of possession is that the accused have knowledge and control. It is the Crown’s position that Mr. Bailey-Ricketts had knowledge and control of all the drugs being carried north in the BMW on April 21, 2020, regardless of whether they were in Ms. Dittmer’s pocket or Mr. Guillaume’s knapsack. Whether or not the knapsack was in the back of the BMW when Mr. Bailey-Ricketts and Ms. Dittmer left 568 Lauder on April 21, 2020 is of little significance in deciding this issue, especially in light of the other evidence in this case, including the evidence Mr. Guillaume was using the knapsack on April 21, 2020, and selected it as his baggage when he was the first to be released from the police station following the arrest. Indeed, it is the Crown’s position that Mr. Guillaume was using the silver/grey knapsack on April 21, 2020, and it was not in the BMW at the time Mr. Bailey-Ricketts and Ms. Dittmer left 568 Lauder on April 21, 2020.
[25] For all these reasons, I find that that there is no violation of s.7 in this case. The lost evidence application is dismissed.
G. Roberts J.
Released: June 30, 2023
COURT FILE NO.: CR-23-10000334-0000
DATE: 20230630
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
Vito BAILEY-RICKETTS
Glen Crisp, Adam Schultz, & Daniel MacAdam, for the Crown
REASONS FOR JUDGMENT
Mark Hogan, for Bailey-Ricketts
G. Roberts J.
Released: June 30, 2023