R v Mathieu, 2016 ABQB 604

Court of Queen’s Bench of Alberta Citation: R v Mathieu, 2016 ABQB 604 Date: 20161104 Docket: 120265673Q1 Registry: Calgary Between: Her Majesty the Queen Crown - and - Christopher Mathieu Accused _______________________________________________________ Decision on the Voir Dire of the Honourable Mr. Justice W. A.

Tilleman _______________________________________________________ Introduction [ 1 ] There are two issues in this case: (1) whether the RCMP officer who pulled over the accused had enough grounds to form a reasonable suspicion that a drug related offense was being committed by the accused, thereby allowing the RCMP officer to perform a sniff search using a drug sniffer dog; and (2) should the Court stay the charge or exclude the evidence due to lack of disclosure, since the RCMP lost the DVD or dash cam that recorded the events of the traffic stop?

Background [ 2 ] On the evening of February 22, 2012 Constable Maja (“Cst. Maja”) worked with the RCMP’s roving traffic unit near Lake Louise, Alberta. At approximately 8:49 pm, he saw the accused, Mr. Christopher Mathieu, approach in a vehicle with a burned out fog

light. The driving conditions were poor and it was snowing. Cst. Maja pulled Mr. Mathieu over. [3] While speaking to the accused, Cst. Maja learned that Mr. Mathieu was returning to Calgary from a ski trip in Kelowna; thatMr. Mathieu had not skied on the trip; that Mr. Mathieu had no ski equipment with him in the car; that Mr. Mathieu was driving hiswife’s car; that Mr. Mathieu was guarded and not relaxed; that Mr. Mathieu lit a cigarette during his conversation with Cst. Maja; andthat the car Mr. Mathieu was driving had a “lived in” look. Further, the trip was short for such a long drive (8 – 9 hours each way).

AfterCst. Maja entered Mr. Mathieu’s operator’s licence information into his computer system database, Cst. Maja learned that Mr. Mathieuhad an outstanding drug trafficking charge from Golden, British Columbia. [4] Based on these factors, Cst. Maja detained Mr. Mathieu, read him his Charter rights and placed him in the back of his policecruiser. Cst. Maja requested the K-9 unit with a drug sniffer dog to sniff search the car. The dog did so and got a “hit”. Cst. Maja thenarrested Mr. Mathieu for possession of a controlled substance. Again, Cst. Maja read Mr. Mathieu his Charter rights. [5] From there, Cst.

Maja opened the trunk and found a sealed box with 10 pounds of marijuana in sealed bags. At that point,Cst. Maja read Mr. Mathieu his Charter rights and re-arrested him for possession for the purpose of trafficking marihuana and traffickingmarihuana. Once more, Cst. Maja provided Mr. Mathieu with his Charter rights. [6] Mr. Mathieu was later charged with the unlawful possession of Cannabis Marijuana for the purpose of trafficking contrary tos 5(2) of the Controlled Drugs and Substances Act, SC 1996, c 19 CDSA. [7] During the traffic stop, Cst.

Maja had an operational In Car Digital Video System (ICDVS, or “dash cam”) in his policecruiser. The dash cam recorded events in front of the cruiser and could be potentially used to record later events in the back seat. Foraudio, Cst. Maja had a lapel microphone attached to the outside of his jacket. Cst. Maja delivered the dash cam footage to the RCMPoffice in Blackfalds, Alberta. However, the DVD containing the footage was subsequently misplaced. [8] The validity of the initial traffic stop is conceded and that is not an issue.

In fact, random traffic stops are proper “so long asthe stop engages an objective of the Traffic Safety Act” (R v Ali, 2016 ABCA 261at para 7). In this case, Mr. Mathieu was driving a carthat had a burned out fog light. According to s 3 of the Vehicle Equipment Regulation, Alta Reg 122/2009, which is a regulation createdunder s 191of the Traffic Safety Act, RSA 2000, c T-6, “any equipment...installed in a vehicle by the manufacturer...must be maintainedin good working order...”. The burned out fog light was a piece of equipment installed by the manufacturer that was not in good workingorder. Therefore, Cst.

Maja justifiably pulled over Mr. Mathieu. [9] Also, based on the comments of Mr. Mathieu’s counsel, the certification of the marijuana and the subsequent arrest,including the reasonable and probable grounds for arrest resulting from the drug sniffer dog’s hit, are not in issue. [10] The defence initially listed four issues in their brief. However, during the voir dire, the parties narrowed the issues down totwo issues. Counsel for Mr.

Mathieu stated that these issues were (1) did the Police Officer have reasonable grounds to formulatesuspicion that could result in detention and subsequently allow for a drug dog search, and (2) what is the effect of the lost video – stay orexclusion or something else? The Court notes that although the defence alleged in their brief that s 8 and s 9 of the Charter were bothviolated, these two challenges “sink or swim together” (R v MacKenzie, 2013 SCC 50 at para 37 [MacKenzie]). In this case, if there wasa s 9 violation, there was a s 8 violation as well. In other words, if Mr.

Mathieu was unlawfully detained (s 9 violation), he was alsounlawfully searched (s 8 violation). First Issue: Did Cst. Maja have sufficient grounds to form areasonable suspicion to conduct a search with a drug snifferdog? The Law [11] Generally, the test for detaining someone following a traffic stop is whether the police officer has reasonable suspicion thatthe individual is involved in a particular crime. This reasonable suspicion can be based on different factors including the experience andknowledge of the detaining officer. See MacKenzie at para 73; R v Chehil, 2013 SCC 2013 49 at para 47 [Chehil].

Seemingly innocentfactors may have a very different meaning to an experienced officer (R v Rajaratnam, 2006 ABCA 333 at para 25). [12] From Chehil, the Supreme Court stated at paragraph 19 that deploying a single-profile narcotic dog is a search that does notrequire prior judicial authorization. However, these searches must meet the criteria outlined in R v Collins, (SCC),[1987] 1 SCR 265 [Collins] in order to comply with the Charter. The criteria from Collins are (1) the search must be lawful, (2) the lawitself must be reasonable, and (3) the search must be carried out in a reasonable manner.

In this particular case, the law and the manner inwhich the search was carried out are not being challenged.

The only relevant criterion is whether the search was lawful. [13] From R v Kang-Brown, 2008 SCC 18 at para 60 [Kang-Brown] and subsequently affirmed by Chehil at para 19 andMackenzie at para 63, deploying a sniffer dog is lawful where the police have a reasonable suspicion based on objective, ascertainablefacts that evidence of an offence will be discovered. [14] The reasonable suspicion standard requires that the court assess the totality of the circumstances to determine whether thepolice had objective grounds to suspect that an individual was involved in criminal behaviour at the time the search occurred (Chehil atparas 6, 68).

The court must consider the collective, as opposed to the individual, significance of the constellation of factors consideredby the police to form reasonable suspicion. Certain factors may only have significance when viewed in light of other factors, while otherfactors “may give rise to reasonable suspicion on their own” (Chehil at para 31).

[ 15 ] When comparing reasonable suspicion to other judicial standards, reasonable suspicion is “something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds” ( Kang-Brown at para 75 ). While reasonable suspicion deals with possibilities, not probabilities, “the police [must] have more than a mere hunch.... They must be able to point to objective facts that support the suspicion.” ( R v Savage , 2011 SKCA 65 at para 18 ). However, factors that give rise to a reasonable suspicion may also support completely innocent explanations ( Chehil at para 32).

This particular point was well explained in MacKenzie at paras 72 – 73 : Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.

Assessing whether a particular constellation of facts gives rise to a reasonable suspicion should not — indeed must not — devolve into a scientific or metaphysical exercise.

Common sense, flexibility, and practical everyday experience are the bywords, and they are to be applied through the eyes of a reasonable person armed with the knowledge, training and experience of the investigating officer. (emphasis added) [ 16 ] In an attempt to further clarify the distinction between reasonable suspicion and reasonable grounds for belief, some have defined reasonable suspicion as “whether the conclusion reached by the officers fell within the range of reasonable conclusions which could have been reached, because objectively discernible facts suggest that the accused is not innocent in the circumstances” (Terry Skolnik, “The Suspicious Distinction between Reasonable Suspicion and Reasonable Grounds to Believe” (2016) 47 Ottawa L Rev 223 at 245).

Crown’s Position [ 17 ] The Crown argues the collection of the various pieces of roadside-stop evidence, added together, and based on Cst. Maja’s experience, meet the reasonable suspicion test. The Crown argues that Cst. Maja’s suspicion was reasonable because: (1) it was a short trip but long drive; (2) the car was registered to Mr. Mathieu’s wife, who was not there;

(3) Mr. Mathieu went on a ski trip but had no ski equipment;

(4) Mr. Mathieu did not ski;

(5) Mr. Mathieu lit a cigarette and was generally nervous during the conversation; (6) the car had a lived-in look; and

(7) Mr. Mathieu had an outstanding drug trafficking charge. Defence’s Position [ 18 ] By contrast, the defence argues the suspicion was not reasonable. Specifically, the defence argues that Cst. Maja probably worked backward with the evidence, meaning once Cst.

Maja found the unresolved trafficking charge, he then used it to weave the rest of his “hunches’ into that key piece of evidence. [ 19 ] As to the seven pieces of evidence, the defence discounts those as follows: (1) it is not uncommon to take short trips; (2) a family car is not a Third-Party vehicle like a rental car, and driving a wife’s car is not unusual; (3) having no ski equipment is easily explained by understanding many people rent; (4) it is not uncommon to change your mind once arriving to ski or golf or to do anything else; (5) the accused lit a cigarette and was otherwise nervous, but all people are nervous when stopped by police; (6) driving a car with a “lived-in” look is not uncommon especially if it is a family vehicle which can include kids’ toys which this one did; and (7) the outstanding drug trafficking charge was two years old and that is not an indicator of criminal activity two years later.

Evidence and Findings of Fact [ 20 ] The training and background of the arresting officer is relevant ( Mackenzie at para 73; Chehil at para 47). In this case, Cst. Maja had 22 years’ experience, most being traffic-related, with the RCMP at the time of the arrest. He testified during the voir dire that in his traffic experience he has never dealt with a case involving a dash cam. However, he has dealt with more than 100 drug investigations with himself as a primary or backup investigator. [ 21 ] For drug training, Cst. Maja completed the “Operation Pipeline” course sometime prior to 2005.

The purpose of the course is to instruct police officers “to prevent criminals and terrorists from using transportation routes and systems to smuggle or transport people and contraband with emphasis on neighbourhood police awareness based on enhanced observational, conversational, and investigative skills” ( R v Tran , 2008 ABQB 287 at para 8 ). This course included these modules: drug trafficking; human behaviour; hiding places in cars; common highway routes; and interviewing techniques. [ 22 ] Cst.

Maja has had some follow-up training to the “Operation Pipeline” course; however, much of his knowledge comes from his 17 years’ road experience (out of his 22 year career) doing traffic-related functions. [ 23 ] Listening to Cst. Maja’s evidence over a period of two days, and watching him carefully, led me to conclude that he was credible. Here are the reasons why. [ 24 ] First, he had officer’s notes and the Court has reviewed his notes and his follow-up written report. With few exceptions, they are consistent internally and consistent with his oral evidence. Second, Cst.

Maja was candid and sincere in his evidence both for and against the Crown. To illustrate, on the issue of the lost (RCMP) DVD, he said he was flabbergasted it became lost. Third, the manner in which Cst. Maja conducted himself on the evening in question was calm, but more importantly, he was respectful of Mr. Mathieu’s other Charter rights. To illustrate, Cst. Maja went and got Mr. Mathieu’s personal cell phone in order to help Mr. Mathieu contact his personal lawyer. He was also thorough in providing Mr. Mathieu with notice of his Charter rights during each subsequent stage of the investigation.

Law Applied to the Court’s Findings [ 25 ] The test for determining whether there were sufficient grounds to perform the sniff search is whether the reasonable person, standing in the shoes of the officer, would have reasonable suspicion of criminal activity ( Chehil at para 6, MacKenzie at para 63). Further, "a judge is entitled to consider a police officer's training and experience in determining objective reasonableness" ( R v Rajaratnam , 2006 ABCA 333 at para 25 ). Based on this test, this Court finds there were sufficient grounds to establish reasonable suspicion that Mr.

Mathieu was engaging in illegal drug activity at the time of the traffic stop. As such, the sniff search did not violate the accused’s Charter rights." [ 26 ] In his evidence, Cst. Maja pointed to several factors that allowed him to form reasonable suspicion. Again, these factors are

(1) Mr. Mathieu’s trip was long (about 18 hours) for a 2 day trip; [1] (2) the car was registered to Mr. Mathieu’s wife, who was not there;

(3) Mr. Mathieu went on a ski trip but had no ski equipment;

(4) Mr. Mathieu did not ski during the trip;

(5) Mr. Mathieu lit a cigarette and was generally nervous during the conversation; (6) the car had a lived-in look; and

(7) Mr. Mathieu had an outstanding drug trafficking charge. [ 27 ] I have classified these factors into 3 categories and will discuss them in order. These three categories are:

(1) Mr. Mathieu’s overall circumstances;

(2) Mr. Mathieu’s nervousness, and

(3) Mr. Mathieu’s outstanding trafficking charge. Overall circumstances were consistent with drug trafficking behaviour [ 28 ] When taken in their totality, Mr. Mathieu’s overall circumstances led to a suspicion that was consistent with drug trafficking behaviour. The overall circumstances include the fact that Mr. Mathieu’s trip was long (about 18 hours) for a 2 day trip; that the car was registered to Mr. Mathieu’s wife, who was not there; Mr. Mathieu went on a ski trip but had no ski equipment and did not ski and the car had a lived-in look.

While it is true that any of the individual factors might have been explained away, like the car was his wife’s or Mr. Mathieu like all people can drive quick trips, and so on, the test is on the totality . These factors, ultimately, support Cst. Maja’s reasonable suspicion. [ 29 ] Based on Cst. Maja’s experience and evidence, which this Court accepts, persons involved in the drug trade typically make quick trips over long distances. They will also use third party vehicles in order to prevent the vehicle from being seized as the proceeds of crime in case they are caught by police.

Additionally, when questioned with respect to travel plans, persons involved in the drug trade will answer in a confused or inconsistent fashion. Lastly, persons involved in the drug trade typically drive vehicles that appear “lived- in”. [ 30 ] These factors may “go both ways”. These factors could apply to many innocent people as well as to people involved in drug trafficking. However, “neutral or equivocal information cannot be disregarded when assessing the constellation of factors” ( R v Navales , 2014 ABCA 70 at para 19 ). When viewed in the totality of the circumstances, these factors support Cst.

Maja’s reasonable suspicion. Nervousness exceeded the normal human nervous response to a traffic stop [ 31 ] The personal nervousness of Mr. Mathieu went well beyond the normal human response for nervousness at a traffic stop. Cst. Maja testified that Mr. Mathieu, during the course of their conversation, lit a cigarette and seemed nervous or guarded. Based on Cst. Maja’s experience, lighting a cigarette indicates nervousness. However, Mr. Mathieu’s nervousness went well beyond simply lighting a cigarette and being nervous. [ 32 ] Significantly, it was the way Cst. Maja described Mr.

Mathieu’s nervousness in Court through stiffening his own body to replicate how the accused behaved during the traffic stop. On the stand (and I observed Cst. Maja very closely during his testimony) he expressed what Mr. Mathieu did during the traffic stop through momentarily freezing his own muscles. To this Court, this was a real change in Mr. Mathieu’s physical appearance when he was questioned by Cst. Maja. That evidence goes far beyond the normal human nervous response to a traffic stop. [ 33 ] Also, according to Cst. Maja, Mr.

Mathieu’s nervousness did not abate during the initial questioning portion of the traffic stop leading up to the detention. Cst. Maja acknowledged that typically during traffic stops, people are initially nervous. However, Cst. Maja stated that, based on his experience, people’s nervousness quickly subsides once they engage in conversation with the police officer. According to Cst. Maja, Mr. Mathieu’s nervousness did not abate leading up to the initial detention – despite the fact that Cst. Maja informed Mr. Mathieu that he was pulled over for a burned out fog light.

Again, this evidence goes beyond the normal human nervous response to a traffic stop. When combined with the other factors, Mr. Mathieu’s elevated level of nervousness allowed Cst. Maja to form reasonable suspicion. Outstanding drug trafficking charge [ 34 ] Lastly, the outstanding drug trafficking charge allowed Cst. Maja to form reasonable suspicion that Mr. Mathieu was involved in drug related criminal activity. Mr. Mathieu’s defence counsel argued that at the time of the traffic stop, the drug charge was unresolved. Therefore, Mr. Mathieu was still presumed to be innocent and Cst.

Maja could not have reasonably been suspicious that Mr. Mathieu was involved in criminal activity at the time of the traffic stop. While Mr. Mathieu would certainly have been presumed innocent until proven guilty in a court of law, Cst. Maja was operating under a different legal standard. It was reasonable for Cst. Maja to suspect that Mr. Mathieu possibly committed a crime that he was charged for. [ 35 ] The drug charge was from Golden, British Columbia, which is a town one hour west of Lake Louise on the Trans-Canada Highway.

The proximity of Golden, British Columbia, and the nature of the pending charge were both strong indicators of the possibility that Mr. Mathieu was engaged in drug related criminal activity. Given the fact that Cst. Maja, based on his evidence, was already suspicious prior to learning of the outstanding drug offense, learning about this outstanding charge allowed Cst. Maja to form a reasonable suspicion that Mr. Mathieu was engaged in drug related criminal activity.

Combination of all the factors supports reasonable suspicion [ 36 ] More important, when considered in their totality, all of the factors support Cst. Maja’s reasonable suspicion that Mr. Mathieu was engaged in drug related criminal activity. He articulated the factors. And Cst. Maja’s reliance on the constellation of these several factors viewed objectively overcame, in this Court’s mind, the possibility that Cst. Maja subjectively linked some hunches, or worked backward from the discovery of the outstanding trafficking charge, a posteriori , to justify the other pieces of evidence into a reasonable suspicion.

When questioned directly on this point, Cst. Maja immediately denied it and the Court accepts his evidence. This Court sees Cst. Maja as considering the drug trafficking charge to be an important factor that worked together in totality to allow him to form reasonable suspicion. [ 37 ] Lastly, this case is factually similar to MacKenzie . In MacKenzie , the Supreme Court of Canada found that the police officer had reasonable grounds to detain the accused and subsequently sniff search the accused’s vehicle.

The factors assessed by the Court in MacKenzie were the accused’s erratic driving, the accused’s “extreme nervousness”, the accused’s physical symptoms of marihuana use and the accused’s course of travel. [ 38 ] While the nervousness of the accused in MacKenzie was higher than Mr. Mathieu’s nervousness, the accused in MacKenzie did not have any outstanding drug related charges. In this case, the outstanding drug charge is a significant factor. When combined with Mr. Mathieu’s high level of nervousness, and other factors, Cst. Maja had a reasonable suspicion that a drug related offence was occurring.

In the alternative s 24(2) does not warrant exclusion of evidence [ 39 ] If the Court is wrong and the Charter rights of the accused were breached, this Court nevertheless admits the evidence because doing so would not bring the administration of justice into disrepute. [ 40 ] The exclusion of evidence under s 24(2) of the Charter is governed by the framework outlined in R v Grant , 2009 SCC 32 [ Grant ].

In Grant , the Court set out a three-part analysis for determining whether the evidence, in light of a Charter breach, should be excluded: (1) the seriousness of the Charter - infringing state conduct, (2) the impact of the breach on the Charter - protected interests of the accused, and (3) society’s interest in the adjudication of the case on its merits.

The seriousness of the Charter - infringing state conduct [ 41 ] Under the first part of the Grant analysis, the court must “assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts...effectively condone state deviation from the rule of law” ( Grant at para 72 ). The court’s “main concern is to preserve public confidence in the rule of law and its processes” ( Grant at para 73 ). Inadvertent or minor breaches “minimally undermine the public’s confidence in rule of law” ( Grant at para 74 ).

Likewise, breaches done in good-faith “reduce the need for the court to disassociate itself from the police conduct” ( Grant at para 75 ). [ 42 ] Cst. Maja did not act in bad faith – just the opposite; he performed a valid traffic stop for equipment violation purposes. That is what traffic units do and it is proper for the goals of public safety on the highways to ensure that motor vehicle equipment is fully operational. In terms of the detention, Cst. Maja immediately alerted Mr. Mathieu that he was detained after forming reasonable suspicion. Further, Cst.

Maja subjectively believed that he had reasonable suspicion that a drug offence was being committed. He was respectful of Mr. Mathieu during the entire encounter. For example, Cst. Maja allowed Mr. Mathieu to sit in his police cruiser, without hand cuffs, and he eventually helped Mr. Mathieu use his cell phone to contact his personal lawyer. [ 43 ] Nothing in Cst. Maja’s conduct was flagarant; nothing in Cst. Maja’s conduct was reckless. Cst. Maja’s conduct showed that he was subjectively trying to respect Mr. Mathieu’s Charter rights as much as possible. This factor weighs in favour of admitting the evidence.

The impact of the breach on the Charter - protected interests of the accused [ 44 ] Under the second part of the Grant analysis, the court examines “the seriousness of the impact of the Charter breach on the Charter -protected interests of the accused” ( Grant at para 76 ). This analysis requires “an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed” ( Grant at para 76 ).

In determining the seriousness of the violation, the court should examine both the interests protected and the degree to which the Charter violation impacted those interests ( Grant at para 77 ). In the context of searches, “an unreasonable search that intrudes on an area in which the individual reasonably enjoys a high expectation of privacy, or that demeans his or her dignity, is more serious than one that does not” ( Grant at para 78 ). [ 45 ] In this case, the detention was brief, Cst. Maja’s conduct upheld Mr.

Mathieu’s dignity to the greatest extent possible and the sniff search was “minimally intrusive, narrowly targeted, and highly accurate” ( Chehil at para 28). Further, “motor vehicles, though emphatically not Charter -free zones, are places in which individuals have a reasonable but “reduced” expectation of privacy” ( MacKenzie at para 31 ). Therefore, the impact on Mr. Mathieu’s Charter -protected interests, while real, was minimal.

Society’s interest in the adjudication of the case on its merits [ 46 ] Finally, the third part of the Grant analysis “asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion” ( Grant at para 79 ).

The reliability of the evidence, the importance of the evidence to the prosecutor’s case, and, to a limited extent, the seriousness of the alleged offence, are all factors that courts may consider under this line of inquiry ( Grant at paras 81 – 84 ). [ 47 ] Given the particularly large amount of drugs, the reliability of the evidence, and the importance of the evidence to the prosecution’s case, society has an interest that this case be heard on its merits.

[48] In all of these circumstances the inclusion of the evidence does not bring the administration of justice into disrepute.Therefore, based on the Grant analysis, the evidence should be admitted. Conclusion [49] Cst. Maja properly had a reasonable suspicion to use the drug sniffer dog to search Mr. Mathieu’s vehicle. Mr. Mathieu’sCharter rights were not breached. The dog had a positive hit and the police easily discovered 10 pounds of marijuana in the trunk.Further, based on the analysis outlined in Grant, the evidence should be admitted even if Mr. Mathieu’s s 8 and s 9 Charter rights wereviolated.

Second Issue: Is the lost police video grounds for a stay orexclusion of evidence? [50] To quickly repeat the facts, Cst. Maja had a dash cam recording the traffic stop on the night in question. The dash camrecorded events in front of the cruiser and could be potentially switched to record later events in the back seat. For audio, Cst. Maja had alapel microphone attached to his jacket. However, Cst. Maja stated that the audio quality of the recording could be poor – especially ifthe audio source was located at a distance from the microphone. In this case, Cst. Maja was about five feet away from Mr.

Mathieuduring their initial conversation. The dash cam footage was lost at some point after the incident. The Law [51] In order to ensure that the right of disclosure is not “hollow”, the Crown is required to preserve evidence it knows to berelevant.

However, “despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence willoccasionally be lost” (R v La, (SCC), [1997] 2 SCR 680 at para 20). [52] The Supreme Court of Canada, in R v La, (SCC), [1997] 2 SCR 680 [La], outlined the framework fordetermining whether the Crown’s disclosure obligations under s 7 of the Charter are breached in cases of lost evidence. Subsequentcases have further summarized the law on lost evidence.

In particular, the Ontario Court of Appeal, in R v Cloutier, 2011 ONCA 484 atpara 71, neatly summarized the law as follows: When evidence is lost or destroyed the Crown must satisfy the trial judge that the evidence has not been destroyed or lost due tounacceptable negligence.

Section 7 has been breached if the trial judge finds that the evidence was lost due to unacceptable negligence. Ifthe trial judge finds that there was no unacceptable negligence then the Crown has not breached the duty to disclose. The onus then shiftsto the accused. If the evidence was not lost due to unacceptable negligence then, in order to establish a breach of

section 7, the accusedmust demonstrate that actual prejudice resulted from the loss of the evidence. If the trial judge determines that there has been a breach ofsection 7 (either through unacceptable negligence by the Crown or actual prejudice's being caused by the loss of the evidence), the trialjudge must then determine the most appropriate remedy under section 24(1). [53] Therefore, the framework for dealing with lost evidence can be broken down into three steps. In the first step, the Crown mustshow that the evidence was not lost due to unacceptable negligence.

In order to determine whether the Crown’s explanation issatisfactory, “the Court should analyse the circumstances surrounding the loss of the evidence” (La at para 21). In particular, theperceived relevance of the evidence at the time it was lost must be considered. Also, the court should consider whether the police actedreasonably in an attempt to preserve evidence (La at para 21). If the Crown fails to satisfy the court that the loss of evidence was not dueto unacceptable negligence, the accused’s s 7 right to disclosure was breached.

However, if the Crown satisfies the court that the loss ofevidence was not due to unacceptable negligence, the Crown’s duty to disclose was not breached. [54] At this first step, the Crown must also show the court that there was no abuse of process which resulted in the loss of theevidence. While abuse of process can happen, for example, if there is deliberate destruction of evidence, “in some cases an unacceptabledegree of negligent conduct may suffice” (La at para 22).

The Court in La defined abuse of process in paragraph 22: “by definition itmust include conduct on the part of governmental authorities that violates those fundamental principles that underlie the community’ssense of decency and fair play”. [55] In the event that the Crown satisfies the court that there was no unacceptable negligence or abuse of process, the analysisproceeds to the second step. In the second step, the accused must demonstrate that the lost evidence resulted in “actual prejudice to his orher ability to make full answer and defence” (La at para 25).

The Court in La referred to these circumstances as “extraordinarycircumstances...[where] the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the rightof an accused to receive a fair trial” (La at para 24). [56] If the court determines that the accused’s Charter rights have been violated in the first or second step, the court must proceedto the third step. In the third step, the court must determine the proper remedy for the Charter breach. The first possibility is a stay of theproceedings under s 24(1) of the Charter.

From R v O’Connor, (SCC), [1995] 4 SCR 411 at para 82: a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer anddefence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution werecontinued. [57] Another possible remedy for lost evidence is the exclusion of evidence under s 24(2) of the Charter. In R v Sheng, 2010ONCA 296 at para 53, Justice Laskin stated “that...lost evidence may...merit...a remedy short of a stay....for example, the exclusion ofevidence”.

Crown’s Position [ 58 ] In ultimately conceding negligence for losing the DVD, the Crown nevertheless strongly resists unacceptable negligence as per La , because, inter alia :

(1) Cst. Maja properly operated and then labelled the DVD when it was full;

(2) Cst. Maja kept the DVD in his car (which he had control over) until it was full;

(3) Cst. Maja marked and left the DVD with his RCMP supervisor in Blackfalds;

(4) Cst. Maja indicated the RCMP policy was that the DVD would then be put in the corporal’s inbox; (5) in spite of the passage of time, Cst. Maja checked with two sergeants, his former partner, and several other RCMP members all of whom looked for the DVD. [ 59 ] Further, the Crown argues that the loss of the DVD does not create a void of evidence. The Crown states that both Cst. Maja and Mr. Mathieu can provide reliable evidence as to what happened during the police stop. Therefore, the Crown argues, Mr. Mathieu’s right to full answer and defence is not impaired. Defence’s Position [ 60 ] The Defence argues that the loss of the dash cam video violated Mr. Mathieu’s s 7 and s 11(

d) Charter rights by substantially impairing his ability to make full answer and defence to the charge. The defence further argues that Mr. Mathieu was actually prejudiced by the lost evidence. The defence points out the dash cam footage would have at least recorded (1) the events in front of the police car, (2) the audio of Cst. Maja, and (3) once detained, the in-car statements of the accused. Also, if the camera was flipped back, it may have recorded the accused for demeanor purposes in the rear seat.

The defence further points out the lack of RCMP excuse or RCMP policy to deal with the dash cam footage, apart from labelling it once finished and dropping it in a corporal’s in-box or basket. Law Applied to the Court’s Findings [ 61 ] I found Cst. Maja to be credible; he testified on the evidence and recorded the traffic stop as per policy. He honestly had a distain that the DVD was lost by others. Yet, he also followed the procedure in place by placing the DVD where it always went – in the corporal’s inbox.

For whatever reason, the DVD eventually was lost. [ 62 ] According to La , when determining what to do in the case of lost evidence, this Court must engage in the three step analysis outlined above. Based on this analysis, this Court finds that Mr. Mathieu’s s 7 and 11(

d) rights were not breached by the loss of the DVD evidence. Evidence was not lost due to unacceptable negligence [ 63 ] The Crown has conceded that the loss of the DVD was negligent. However, unacceptable negligence...requires a greater degree of fault” than negligence ( R v Dessouza , 2012 ONSC 465 at para 107 ). The evidence shows that there was no deliberate act of destruction or any other “conduct on the part of governmental authorities that violates those fundamental principles that underlie the community’s sense of decency and fair play” ( La at para 22).

Therefore, losing the DVD did not result in an abuse of process. [ 64 ] While the DVD evidence was relevant to this particular case, there were many other pieces of evidence that provided similar evidence. For example, Cst. Maja’s general written report, or his notes provided much of the same evidence. On top of that, and far more important factually, there is very little the DVD would have added up to the time of detention besides the voice of Cst. Maja. Cst.

Maja testified in Court anyway. [ 65 ] Clearly, the dash cam footage would visually add nothing to the most critical evidence, which was the personal interaction between Cst. Maja and Mr. Mathieu prior to detention. Why? The car was dark inside – nothing could have been seen at night anyway: Exhibit VD-1 picture one proves that. In terms of audio, Cst. Maja testified that the audio recording system quality was poor – and potentially would not have recorded Mr. Mathieu’s responses during the pre-detention period.

Therefore, while the DVD was relevant, its loss does not create a void of evidence. [ 66 ] Further, the police’s actions were reasonable. Policy was followed in handling the DVD. However, humans make mistakes. In this case, there is no evidence that shows that the DVD was lost due to unacceptable negligence. The evidence shows that the DVD was misplaced accidentally. Therefore, this Court finds that losing the DVD did not constitute unacceptable negligence. The loss of the DVD did not Prejudice Mr. Mathieu [ 67 ] In the second part of the analysis, Mr.

Mathieu must satisfy the Court that the loss of evidence caused him actual prejudice. This Court finds that the loss of the DVD did not cause actual prejudice to Mr. Mathieu. [ 68 ] Both Cst. Maja and Mr. Mathieu could provide reliable evidence as to what happened during the traffic stop. As mentioned above, the loss of evidence does not create a void of evidence. Therefore, Mr. Mathieu is not prevented from making a full answer and defence to the charges. [ 69 ] Further, Cst. Maja’s evidence was not shaken on cross-examination. There was no suggestion that the evidence he gave was not reliable.

Even “an optimistic view” of what the DVD would have disclosed would likely do little to detract from the credibility of Cst. Maja. Cst. Maja’s evidence was largely consistent, and the likelihood that the DVD evidence would suggest otherwise is minimal. [ 70 ] It is true that the DVD could have recorded post facto events like the audio and appearance of the accused in the police vehicle. However, the only issue in question is the lawfulness of the initial detention. As already indicated, the DVD would not be able to add much to evidence of the pre-detention period. [ 71 ] Therefore, Mr.

Mathieu did not suffer actual prejudice from the loss of the DVD and his s 7 and s 11(

d) Charter rights were

not violated. [72] Lastly, this Court notes that Mr. Mathieu did not call evidence in the voir dire – nor was he required to. However, the Crown’sevidence stands uncontradicted, and based on the evidence before this Court, Mr. Mathieu did not suffer actual prejudice (R v Noble, (SCC), [1997] 1 SCR 874 at para 82). Remedy under s 24 of the Charter [73] Based on my above analysis, Mr. Mathieu is not entitled to a stay of proceedings or exclusion of evidence, as there was noCharter violation of s 7 or 11(d).

However, even if this Court is incorrect in its analysis, neither a stay, nor the exclusion of evidencewould be appropriate in these circumstances. A stay of proceedings is not an appropriate remedy [74] A stay of proceedings is only appropriate "in the clearest of cases", meaning either the prejudice to the accused's right to makefull answer and defence is irremediable or the integrity of the judicial system would be irreparably prejudiced if the prosecution werecontinued (R v O’Connor, (SCC), [1995] 4 SCR 411 at para 82). [75] This particular case does not fit into the category of “the clearest of cases”.

The prejudice suffered by Mr. Mathieu can beremedied through a cross-examination of Cst. Maja and through reliance on other evidence – such as photographs taken at the scene andpolice notes. Conversely, although Mr. Mathieu did not have to take the stand, he could have taken the stand to challenge Cst. Maja’sevidence. Further, whatever prejudice exists is repairable and the integrity of the justice system is not brought into question. Exclusion of evidence is not an appropriate remedy [76] The Grant analysis for the exclusion of evidence under s 24(2) of the Charter is outlined above.

In this particular case, theexclusion of evidence would be an inappropriate remedy. In cases where lost evidence could potentially result in the exclusion ofevidence, there is typically some connection between the reliability of the evidence being admitted and the lost evidence. For example, inR v Maslanka (2011), 104 WCB (2d) 814 (ONCA), the defence sought, in the alternative to a stay, the exclusion of DNA evidence fromsaliva found on strawberries.

The police had destroyed the strawberries, thus eliminating the possibility of further testing or scrutiny ofthe DNA sample. [77] In this case, the loss of the DVD does not prejudice Mr. Mathieu’s ability to make a full answer and defence. As mentionedabove, any prejudice Mr. Mathieu has suffered is remediable through a cross-examination of Cst. Maja and through reliance on otherevidence – such as police notes and photographs. Additionally, there is not a strong connection between the reliability of Cst. Maja’sevidence and the dash cam footage. The Court found Cst.

Maja’s evidence to be consistent with his police notes and his evidence was notshaken on cross-examination. The probability that the dash cam footage would undermine Cst. Maja’s evidence is very unlikely.Therefore, the exclusion of evidence is not an appropriate remedy in this case. Conclusion [78] Loss of the dash cam footage does not amount to unacceptable negligence, nor did Mr. Mathieu suffer actual prejudice as aresult of the loss of evidence. Therefore, s 7 and s 11(

d) of the Charter are not violated. In the alternative, if Mr. Mathieu’s Charterrights were violated, neither a stay of proceeding nor the exclusion of evidence are appropriate remedies. Dated at the City of Calgary, Alberta this 4th day of November, 2016. W. A. Tilleman J.C.Q.B.A. Appearances: Kathryn Spurr for the Crown D. W. Fedorchuk, QC for the Accused