R v Panepinto, 2014 ABQB 673

Court of Queen ’ s Bench of Alberta Citation: R v Panepinto, 2014 ABQB 673 Date: 20141105 Docket: 131226748S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - David Michael Panepinto Appellant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice B.R. Burrows _______________________________________________________ [ 1 ] David Panepinto appeals his conviction for driving with a blood alcohol level over the legal limit. At trial in the Provincial Court, Mr.

Panepinto alleged that his Charter s. 7 rights had been breached when the Crown failed to preserve for disclosure a videotape recording of the administration of the breathalyser test on Mr. Panepinto at the police station. The Provincial Court Judge ruled, in a voir dire , that the video was not relevant, that if it was there had been no negligence by the police or Crown in failing to preserve it, but if there was, that the remedy Mr. Panepinto sought, the exclusion or the test result pursuant to Charter s. 24(1), was not appropriate. [ 2 ] On September 28, 2013 an EPS officer observed Mr.

Panepinto operating his vehicle at a speed significantly over the speed limit and stopped him. The officer noticed a slur in Mr. Panepinto’s speech and an odour of alcohol on his breath. Mr. Panepinto acknowledged he had consumed beer. Mr. Panepinto failed a breath test using an approved screening device. He was arrested for impaired driving. He was taken to the police station to provide samples of his breath for analysis by a qualified technician. Upon completion of that test he was charged with driving with a blood alcohol level over the legal limit. [ 3 ] Mr. Panepinto retained counsel to advise him.

On October 24, 2013 his counsel wrote to the Crown Prosecutor’s Office to obtain disclosure. The letter listed several categories of items of which disclosure was sought including, “A copy of any videotape

evidence relevant to the accused.” [4] Evidence on the voir dire established that the police station to which Mr. Panepinto was taken has over 150 video cameras. There is a video camera in the breathalyzer room where the breathalyzer technician dealt with Mr. Panepinto. At the time, the EPSpolicy was to keep the video recording made by the various video cameras in the police station for 30 days. After 30 days, the videowould be recorded over and a recording made more than 30 days would be lost. This was consistent with a directive from the Provincialgovernment.

The directive and policy changed as of January 1, 2014 – such video recordings are now kept for a year. [5] It was possible to preserve a specific video recording if a request were made that it be preserved. The requested video wouldbe copied to a DVD. The copying process is simple.

EPS policy provided that preservation of such video could be requested where thevideo was related to “an incident or occurrence that results in, or is likely to result in a charge, complaint, or other formal recourse.” Mr.Panepinto observes that this was video of an event, the administration of a breathalyzer test, which resulted in a charge against him. [6] Mr. Panepinto’s counsel’s letter requesting disclosure was received by the Crown, at best, only a few days before the videoof Mr. Panepinto’s breathalyzer test was recorded over. The disclosure request had not been processed in the Crown’s office.

Norequest to preserve the video was made. [7] On November 14, 2013 Mr. Panepinto’s counsel wrote to the Crown Prosecutor’s Office and raised a point specificallyrelevant to Mr. Panepinto’s defence. Mr. Hart of the Crown Prosecutor’s Office responded on November 22. It does not appear thateither lawyer had the disclosure of video in mind in this exchange of correspondence. In any event, by this date, the video would havebeen lost. [8] On January 23, 2014 Mr. Panepinto’s counsel again wrote to the Crown Prosecutor’s Office.

On this occasion hespecifically requested cell block video. “. . . please provide me with any cell block video related to this investigation.” As Mr.Panepinto had been charged with impaired driving as well with .08, it is likely that by “cell block video” the lawyer meant videorecording Mr. Panepinto’s actions in the cell in which he was lodged more than video of the administration of the breathalyzer test.

Inany event, by that time, video of both events had been lost. [9] The evidence of the person responsible for the CCTV system at the police station indicated that the video recording made isnot of good quality. He acknowledged, however, that the quality is good enough that the direction a person’s head is pointing, that aperson is writing something down, that a person has a breathalyzer mouthpiece in his mouth, or that a person is pushing buttons on thebreathalyzer could likely be seen. [10] During the voir dire, after the Court heard the evidence of the police witnesses who had dealt with Mr.

Panepinto, the Crowninvited the dismissal of the impaired driving charge and it was dismissed. Prior to that, the voir dire had related to the loss of the videorecordings of both Mr. Panepinto’s behaviour in cells, and of the administration of the breathalyzer test. After the dismissal of theimpaired driving charge, the voir dire issue narrowed. It related to the loss of the video recording of the administration of thebreathalyzer test only.

The Decision of the Provincial Court Judge [11] The Provincial Court Judge held that the defence had not established that the lost video would have contained relevantevidence. Therefore, he held, there was no Crown obligation to disclose it. Its loss was not a breach of the Crown’s disclosureobligation. On this appeal the Crown concedes that the video was relevant and, but for its loss, would have been subject to disclosure. [12] The Provincial Court Judge further held that if, contrary to his first conclusion, the video was relevant, defence counsel hadnot been sufficiently diligent in seeking its disclosure.

The initial request was a general request for relevant videotape. The later morespecific request had been for cell block video. There was no specific request for video of the administration of the breathalyzer test.

Heheld that defence diligence is necessary because it is to be expected that in circumstances such as these, routine video will be overwrittenif no specific request for its preservation is made. [13] The Provincial Court Judge further held that if the video was relevant, and if the defence had been sufficiently diligent, thenthere had been no unacceptable negligence on the part of the Crown in failing to preserve the video.

According to the evidence, thevideo cameras had been installed in the police station “. . . to ensure officer safety, to provide transparency to the public for what goes onin a police station, and to provide security in areas like cells.” Given those purposes, “the policy of retaining [the video] for 30 days wasnot unreasonable.” [14] Finally, the Provincial Court Judge held that if, contrary to his other findings, there had been a Charter breach, no s. 24(1)remedy was appropriate. He held that prejudice is an important factor in the analysis leading to a s. 24(1) remedy. He was not satisfiedthat Mr.

Panepinto had been significantly prejudiced by the loss of the video. Evidence from the arresting officer who observed thetests, the breath technician and Mr. Panepinto himself could possibly have established whether there had been a malfunction of themachine or an error in its operation, even better than the “quirky video of what went on in the breathalyzer room.” In the absence ofprejudice, the test result should not be excluded even if the loss of the video was a Charter breach.

Crown Explanation for Loss is Satisfactory [15] Where disclosable information has been lost, there is no Charter breach if the Crown provides a satisfactory explanation forthe loss. In R v. La, (SCC), [1997] 2 S.C.R. 680, Sopinka J. said (para. 21): In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding theloss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in thecircumstances to preserve the evidence for disclosure.

One circumstance that must be considered is the relevance that the evidence wasperceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that itwill 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. But as the relevance increases, so does the degree of care for its preservation that is expected of the police. [ 16 ] That passage indicates that perceived relevance of the lost disclosure should be considered. What relevance was the video of the administration of the breathalyzer perceived to have prior to it being lost? It appears clear that neither the police nor the Crown perceived it to have any relevance. Their perception, the Crown now admits, was wrong. It further appears that defence counsel had not really considered whether such video, if it existed, was relevant.

It never asked specifically for the disclosure of video of the breathalyzer administration until the Charter notice was filed. In my view the circumstances include that no one perceived that this video was relevant prior to it being overwritten and thereby lost. [ 17 ] The circumstances also include that the video was of poor quality and that the likelihood that it would show anything upon which a conclusion that the breathalyser machine had malfunctioned or been improperly operated was low.

This, and the fact that the video was made for a purpose unrelated to creation of evidence as to the operation of the machine, in my view, justifies the conclusion that the failure of the police to perceive its possible relevance was reasonable. [ 18 ] The video was not lost because someone failed in a duty to take proper care of it. It was lost because as far as the police were concerned the purpose for which it was made in the first place did not require it to be kept for longer than 30 days.

The Provincial Court Judge found, and I agree, that that policy was reasonable. [ 19 ] In my view the Crown’s explanation for the loss of the video in question is satisfactory. I therefore agree with the conclusion reached by the Provincial Court Judge. There was no Charter breach. [ 20 ] Given this conclusion, it is not necessary for me to review the Provincial Court Judge’s conclusion regarding remedy. [ 21 ] I dismiss the appeal. Heard on the 23 rd day of October 2014. Dated at the City of Edmonton, Alberta this 5 th day of November 2014. B.R. Burrows J.C.Q.B.A.

Appearances: Susanne Thompson for the Respondent Steve Smith for the Appellant