R. v. Uppal, 2021 ONCJ 99

CITATION : R. v. Uppal , 2021 ONCJ 99 DATE : February 19, 2021 ONTARIO COURT OF JUSTICE (TORONTO REGION) HER MAJESTY THE QUEEN Respondent – And – AMANDIP UPPAL Applicant Amandip Uppal in person for the Accused/Applicant C.

Ponesse for the Crown/Respondent Ruling on Application to Stay Proceedings Due to Lost Evidence Heard : 16 Feb 2021; Judgment : 19 Feb 2021 (59 paras.) Libman J. [ 1 ] Amandip Uppal, a lawyer who is representing himself in these proceedings, stands charged with impaired driving and refusing to provide a breath sample to a qualified lntoxilyzer operator, alleged to have occurred on 16 December 2017 in the City of Toronto. [ 2 ] Three days of trial time was originally set aside for a blended trial and Charter hearing. The trial commenced as scheduled on 7 November 2018.

By the end of 9 November 2018, further time was required to complete the Crown's witnesses. Unfortunately, Mr. Uppal was ill on the December continuation dates, and the Crown's case concluded on 30 January 2019 with the testimony of the qualified technician. Numerous video tapes were played during these four days of trial and Charter evidence, showing the accused's interaction with the police officers who investigated him at various times, from the police in-car dash-camera of Mr. Uppal being pulled over while driving, until his release video from the detachment. The video evidence in the breath room, where Mr.

Uppal was brought in and out three separate times, is 52 minutes in length, and has been played in its entirety numerous times in the proceedings. The recorded interaction between the arresting officer, Constable Franczak, and Mr. Uppal is approximately one hour in length. [ 3 ] One of these video tapes submitted into evidence is of the booking procedure when Mr. Uppal was taken to Traffic Services Detachment to provide breath samples following his arrest. Unfortunately, the police officers in charge of Traffic Services who spoke to Mr.

Uppal at the time of his booking, failed to immediately activate the video and audio camera equipment. Instead, the equipment remained, for most of the time, showing the sallyport area where Mr. Uppal entered the station. In order to record the booking hall process, the officers were required to switch and change it over to the booking hall area. They only realized their error towards the end of the booking procedure and activated the proper camera at this time. It is the unavailability of this one portion of the evidence, in this form, that is the subject matter of the instant application to stay proceedings.

It was agreed, however, that the application should not be heard prior to the Crown's case in its entirety concluding, and the accused's application on the allegations of breach of his right to consult counsel determined. [ 4 ] The accused's testimony on the first Charter motion only, alleging violations of his s.1 0(

b) Charter rights, commenced and concluded on 6 March 2019. Following another adjournment in early April due to Mr. Uppal's illness, the parties made submissions on 30 April 2019. On 6 June 2019, I dismissed Mr. Uppal's Charter application based on rights to counsel. [ 5 ] Thereafter Mr. Uppal's application to stay proceedings on account of the police failing to record his booking hall interaction has

remained outstanding. There have been two primary reasons for the delay from 25 June 2019 when time was to be scheduled to hear the s.7 motion and 16 February 2021 when it was finally argued: Mr. Uppal's mental and physical well-being and the outbreak of the COVID-19 pandemic. The accused has been both unwell and on bedrest due to a serious motor vehicle accident throughout the fall of 2019. He was unable to attend court on 24 October 2019 and 8 November 2019, when his agent stated he was in severe pain and receiving medical treatment. The matter was then adjourned until 24 January 2020.

At this time, the accused attended in person but stated he needed to be on bedrest and could not proceed with his

section 7 motion. He submitted medical documentation in support of his claim. It was anticipated that the motion would proceed on 18 February 2020. [ 6 ] Mr. Uppal was not well enough to argue the motion on this date, however, and the following month the COVID-19 pandemic forced a closure of the courts. The motion was eventually rescheduled for 11 September 2020. Mr. Uppal has always attended court in person, more recently in the company of his father for support. They typically sit together at the counsel table. Mr.

Uppal stated he was not in a position to argue the matter on 11 September, being confused about what was to happen in court on that date. When the matter was subsequently adjourned to 12 November and 18 December, on both occasions COVID protocol prevented Mr. Uppal from entering the courthouse, as he (and his father) were screened and required to take COVID tests. [ 7 ] On 16 February 2021, Mr. Uppal and his father again appeared in court in person. Crown counsel appeared on this occasion over zoom, believing the matter to have been scheduled in this way.

I have left it to the parties to appear in court – physically or remotely – in whatever manner they are most comfortable and allows them to best present their case. I have appeared in court throughout to preside in person, along with our court staff. On this most recent date, Mr. Uppal testified· on his stay of proceedings motion and made submissions to me, as did the Crown. Mr. Uppal also played portions of other videotape clips admitted into evidence as exhibits; he was not cross-examined by the Crown.

What follows now, on 19 February 2021, after reviewing the evidence on the motion, transcripts of trial evidence, case law and counsels' submissions, are my reasons for judgment on this Charter motion. [ 8 ] In Mr. Uppal's written Charter notice seeking a stay of proceedings, he argues that upon the accused and arresting officer arriving at the police station (Mr. Uppal typically refers to himself in the third person, hence my referring to him in the same way), the "normal booking video" of the interaction has not become available, and is now considered "lost evidence".

A stay of proceedings is the appropriate remedy that the Court should fashion as a result. [ 9 ] The Crown's reply in writing (submitted before Mr. Ponesse assumed carriage of the case) is that there has been no breach of the accused's

section 7 rights as the booking officer inadvertently neglected to turn on the surveillance video inside the booking hall at the time Mr. Uppal was being booked. The absence of the booking video does not therefore constitute lost evidence as the video never existed. In any event, the loss of such evidence is inconsequential, in the Crown's view, such that a stay of proceedings is not warranted. [ 10 ] Mr. Uppal's testimony on this motion was essentially to explain the prejudice he feels he has suffered due to the unavailability on video of the booking hall procedure.

He testified that the evidence would show him in a particularly coherent and sober state, "highly coordinated" and "totally in full comprehension", contrary to the evidence of the police officers who have testified against him.

He also notes that at this pivotal time, he was subject to police coercion and misconduct at the police station, which he terms a "power imbalance" between a private citizen with an unblemished record, like himself, and the officers who mistreated him, and demanded at the booking procedure that he read aloud his rights himself and surrender his belt buckle and shoe laces, all of which intimidated him. One of the booking officers also called him by the wrong name, he notes. [ 11 ] As part of his testimony, Mr. Uppal stated when he was given initial disclosure, it contained someone else's disclosure.

He believes this was done on purpose, in an effort to deceive him. Had he pleaded guilty, the erroneous and incomplete disclosure would not have come to light. He concluded his testimony by playing the release video which shows him "totally comprehensively coordinated", and that the missing booking hall video would do the same. [ 12 ] As noted, the Crown did not ask Mr. Uppal any questions in cross-examination. [ 13 ] In the submissions which followed, Mr. Uppal made reference to the two police officers who gave evidence at the trial proper and were involved in the booking hall procedure.

He submitted a transcript of their testimony, all of which occurred on 9 November 2018, that is, the third day of trial. [ 14 ] Police Constable Jason Wrong has been a police officer since 1988 and stationed at Traffic Services since 2000. On 16 December 2017 he was working the night shift as the station "Operator/Booker".

As such he was working the front desk at the police station and helping with booking and prisoners. [ 15 ] Constable Wrong explained his responsibilities as the "booker" as being to monitor the officer when he comes into the station to make sure he is safe, and to make sure the prisoner is also safe at this time. There is audiovisual equipment used to monitor the whole process, including when a person is arrested and brought to the police station, when they are unloaded in the sallyport, and brought into the booking hall where they are brought before the Booking Sergeant Supervisor.

At that time the officer explains why the prisoner is there. Constable Wrong's job is to enter all the information into the computer system and operate the audiovisual equipment. If there is a level of search that is required at the station, Constable Wrong might assist. Then the person is directed to either an interview room or a cell, depending on the circumstances of the arrest.

It would be Constable ·Wrong's job to monitor the cell; the officer is primarily responsible to monitor the accused in the interview room. [ 16 ] As for recording the booking process, Constable Wrong explained that there are microphones and cameras in the area. It is his responsibility to monitor that equipment. The doors in the sallyport and building are all electronic and operate with pass cards. There are also two separate cameras. They' do not switch automatically.

Constable Wrong has to put the camera on the sallyport and then physically hit a button to switch it over the booking hall. [ 17 ] With respect to Mr. Uppal's attendance at Traffic Services in the company with the arresting officer, Franczak, the witness' role as the booker was to assist in getting him entered into the police system and coming into the station. He did not make any observations in his notes as to the accused's physical abilities. He did make a note that he still had some property on him when he came in. As Officer Franczak was a new officer, he was watching the procedure "a little more closely".

People who are brought into the station under the

influence of alcohol or drugs, noted the officer, can be unpredictable in their behavior. Constable Wrong recalled that the accused was trying to put gum in his mouth at the time, or Nicorette, and he was told not to do so. He also had his wallet and some keys in his possession. [ 18 ] The witness was asked if there was anything unusual about the booking process· with the accused. He replied that it was "fairly standard". The only "unusual thing", as he put it, was his error in watching Mr. Uppal and Officer Franczak, and forgetting about the process of physically switching the cameras.

There are two monitors in the booking hall. One shows the booking hall all the time. It does not change. The other camera must be physically flipped over. Constable Wrong admitted that he forgot to flip the camera and noticed this only right near the end. As a result, most of the booking hall procedure was not caught on video camera. Had he activated the proper camera, it would have shown the accused walking through a door into the small little alcove where he reads a notice that the building is being audio-taped and video-taped as well as reading a notice regarding his rights to counsel.

It would then show the accused walking into the booking hall and recorded the exchange where the arresting officer explains to the booking sergeant why the person is under arrest. Other matters that would be canvassed include any property belonging to the prisoner, and whether he has been injured or has any needs such as using the bathroom was most likely due to being focused on Officer Franczak. It was also a Saturday of his night shift, which had started on a Monday.

By the end of the week he would start to get tired, and being 53-years old, he does "forget the odd thing." [20] In cross-examination, Constable Wrong was played a short portion of the booking hall clip that was recorded. He acknowledged that what was captured and recorded was "the back half." The accused had already come into the building. His money had been physically counted by then and was being documented on computer. Had he touched the screen at this time, it would have flipped the cameras around and physically recorded the earlier portion of the booking hall procedure.

The witness acknowledged that had he glanced at the screen he would have realized the sallyport area was still being displayed on screen, and not the booking hall. [ 19 ] Constable Wrong concluded his examination-in-chief by stating that the reason he neglected to switch the camera from the sallyport view to the front desk view right away was most likely due to being focused on Officer Franczak. It was also a Saturday of his night shift, which had started on a Monday.

By the end of the week he would start to get tired,· and being 53-years old, he does "forget the odd thing." [ 20 ] In cross-examination, Constable Wrong was played a short portion of the booking hall clip that was recorded. He acknowledged that what was captured and recorded was "the back half." The accused had already come into the building. His money had been physically counted by then and was being documented on computer. Had he touched the screen at this time, it would have flipped the cameras around and physically recorded the earlier portion of the booking hall procedure.

The witness acknowledged that had he glanced at the screen he would have realized the sallyport area was still being displayed on screen, and not the booking hall. [ 21 ] The officer made an entry in his notes about failing to activate the camera equipment, namely, "forgot to switch cameras from sallyport to booking hall." He conceded that it was part of his job to switch the cameras and he "did not do that." He could not recall if he informed the booking sergeant, Sgt. Reimer, about the error in recording the entire booking clip.

He did record on the property report that the accused was "cooperative" during the time of the booking procedure. [ 22 ] Sgt. Reimer has been a police officer for 13 years and is a supervisor at Traffic Services. On the night in question he was the officer in charge of Traffic Services. One of his duties was to book in prisoners who were brought into the station. He was on the night shift at the time. [ 23 ] The witness recalled that he was called by the booker, Constable Wrong, at 11:58p.m. to attend the booking hall. They turned the camera on and started the booking process at a minute after midnight. Sgt.

Reimer explained that there are two separate cameras: one records the sallyport where the police car enters the station; the other camera is in the booking hall. When it is turned on, it starts to record in the sally​port area. The officers in the booking area wait for the prisoner. and the officer to come into the station. [ 24 ] According to Sgt. Reimer, his job is not to do anything "really physical" in the booking hall, but to be there as a supervisor. He has separate responsibilities: when the booker tells him he is ready, the officers invite the officer to bring in the prisoner.

As the officer in charge of the station, it is his responsibility to determine if it is suitable to keep the prisoner in custody, what kind of search would be conducted based on the information given by the arresting officers, as well as general supervision of the cell area. [ 25 ] When Mr. Uppal entered the station in the company of the arresting officer, Constable Franczak, the booking officer instructed him to read the notices on the door before entering the booking area. These state that the area is being recorded and the other states rights to counsel.

The accused was then brought through the door into the main booking area where there is a counter. Officers Reimer and Wrong were on the inside; Mr. Uppal arid Constable Franczak were on the other side. The four of them were facing each other. [ 26 ] Sgt. Reimer testified that he immediately smelled a strong odour of alcohol on the accused, before he fully arrived at the counter. He made a notation of this in his book. Immediately upon being brought into the station, the accused said he needed to go to the washroom. The officer asked him if it was okay to take off his handcuffs first.

There was no objection by Constable Franczak, and the accused was escorted to the bathroom and then returned to start the booking process. [ 27 ] At this time, the arresting officer described that the accused had been arrested for drinking and driving related offences and was brought into the station for breath tests. Inquiries were then made about Mr. Uppal understanding his rights to counsel and explaining his options as to contacting counsel of choice or duty counsel. Sgt. Reimer also asked him a number of questions related to his health. Mr.

Uppal stated that he had no medical conditions, no injuries, no mental health concerns and did not require medications or drugs. He was cooperative throughout the whole process, although he "liked to interrupt". Once the officer determined it was safe, the officer was told to take the accused to an interview room. The booking process was concluded by 12:15a.m., meaning the whole process lasted about 15 minutes. [ 28 ] Right at the end of the booking process, Constable Wrong told him he had forgotten to switch the camera over to the booking hall.

As a result, the camera kept recording the sallyport area and the police car. There was nothing they could do at the time to retrieve the portion of the booking hall that was not recorded. Subsequently, the officers came up with a way of preventing a similar incident, by

double checking each other's work. Constable Wrong had also been busy collecting several items of valuable property from thedefendant and documenting them; they also retrieved his belt and laces. Mr. Uppal was "quite understanding about it all" and there wereno issues with that. [29] In cross-examination, the witness agreed that one of his areas of concern was the safety of the accused person. The audio videoequipment monitors the safety of both the accused and police officers. In addition, it assists in the accountability of the police officers,records the condition of the accused and the collection of evidence.

Sgt. Riemer acknowledged that the booking video would be relevantfor a court proceeding. It could demonstrate the demeanor of the accused, whether unsteady on feet or how dressed, and the conversationcould be relevant to rights to counsel. He considered it to be important. [30] According to the officer, any evidence that is collected, whether the in-car camera or booking hall camera, is "importantevidence." It is as important as any other evidence and should be collected. On a scale of 1 to 10, the booking procedure evidence is "a10, just like any other evidence that should be collected." [31] It is Mr.

Uppal's position that there has been unacceptable negligence on the part of the police in failing to record the bookingprocedure evidence, and that such failure has violated his fair trial rights under s. 7 of the Charter of Rights. He states such evidence isclearly relevant and would constitute clear and objective evidence of his non-impaired state. Indeed, he notes even the police concede theimportance of such evidence, as testified by Sgt. Reimer. [32] Relying on the Supreme Court of Canada's decision in R v La, (SCC), [1997] 2 S.C.R. 680, Mr.

Uppal submitsthat the Crown's duty to disclose gives rise to an obligation to preserve relevant evidence. In other words, the right of disclosure, to bemeaningful, requires the Crown to preserve evidence that is known to be relevant. In this case, however, the police failed to takereasonable steps to preserve obviously relevant evidence for disclosure. As a result,· there has been a violation of the accused's right tomake full answer and defence, as guaranteed under s.7 of the Charter of Rights. [33] The test for relevancy for lost evidence, notes the accused, is not a high one.

It does not have to revolve around central evidenceor relate to the "ultimate issues at trial": .see R v Hassan, 2014 ONSC 1345 at para. 12. In R v Pedersen, 2015 ABQB 128, at para. 105,the relevance threshold was described as being "very low".

And in this case, it would be obvious to the authorities that such videotapedevidence would be of primary importance, given their stated intention to record it, much like all of their other interactions with theaccused, in this drinking and driving investigation. [34] There are a number of cases, involving failure to preserve video evidence in drunk driving cases, that support the accused'sposition in the case at bar, argues Mr. Uppal.

In R v Machado, 2015 ONCJ 163, the failure to record the accused's second breath test onvideo was acknowledged to constitute lost evidence which was relevant, but the court was satisfied that the operator error at a busy timeto activate the recording · equipment was neither unacceptably negligent nor intentional.

Conversely, Officers Reimer and Wrong hadonly to take a glance to realize the camera was not properly turned on at a time they were dealing only with the accused. [35] The instant case thus contrasts with ones like R v Banford, 2011 SKQB 418, in the accused's view, where disclosure of thedetachment video footage was clearly not relevant, given all the investigative steps associated with the charge occurred at the roadside. [36] Lastly, Mr.

Uppal places reliance on R v Sanche, 2015 SKQB 321, a case where the failure of the police to preserve the in-carvideo or to provide a reasonable explanation as to why it could not be produced resulted in a finding that the evidence was lost due tounacceptable negligence. Such evidence was highly relevant, and its loss resulted in actual prejudice to the defendant's right to make fullanswer and defence. In that case, a stay of proceedings was imposed. ]37] With respect to the case at bar, Mr.

Uppal argues that the failure to preserve the booking hall video constitutes unacceptablenegligence on the part of the authorities, which has deprived him of relevant evidence in order for him to make full answer and defence.He states that the video would corroborate his testimony, including his version of events as to what happened at the police station.

Inparticular, it would show that no signs of impairment were present and confirm his cooperative and appropriate demeanor. [38] As for the issue of negligence, it is submitted that officers Wrong and Reimer were derelict in their duty to record the bookingprocedure and nothing can be done to remedy this, short of a stay of proceedings. Their failure to activate the camera in questionstemmed from forgetfulness and steps have been taken to prevent this from happening again. However, it should not be the accused whosuffers as a "guinea pig" as a result, in the accused's words.

Only a snippet of the booking process is available for presentation in court.Indeed, it appears that officer Franczak turned off his recording device in the booking area, under the assumption that the process wasbeing recorded by the other officers. In sum, no acceptable explanation has been proffered in support of the failure of the authorities topreserve this relevant and highly important evidence. [39] Crown counsel takes the view, on the other hand, that the evidence in question should not be viewed as lost evidence as it wasnever created in the first place.

The duty on the police is to preserve evidence, not to create it. Quite apart from this, it is argued that the officers in question have given evidence of their interactions with the accused. Consequently, the defence has been provided withevidence as to the booking procedure and the lack of video recording for most of this period is of little consequence and certainly doesnot mandate a stay of proceedings by way of Charter remedy. [40] In support of his position, Mr. Ponesse relies on the judgment of Akhtar J in R v Deesasan, 2018 ONSC 4180.

In that case, alsoone of impaired driving and refusing to provide a breath sample, it was argued that the police had failed to record their interactions withthe accused while he was in their custody. In particular, the in-car cameras were not working that evening; in addition, the in-car cameraused when transporting the accused to the mobile unit appeared to·record only video and not audio. [41] It was held on

summary conviction appeal that the trial judge had properly found that the accused's s.7 Charter rights had notbeen breached by the absence of the footage and the actions of the police. In the Court's view, unlike the La case, this was not aninstance where the police had material evidence, which they had lost, destroyed or failed to preserve. To the contrary, the evidence didnot exist.

[42] Justice Akhtar went on to observe that the Crown can only disclose evidence that it has. There is a "significant distinction"between evidence that was once in the possession of the police but has later disappeared, and evidence that it did not possess "eventhough the defence thinks it should have" (para. 31 ). In short, the duty to preserve evidence does not oblige the police to create evidence. [43] As in the Deesasan case, the Crown submits there is no actual prejudice occasioned to the accused as a result of the absence ofthe entirety of the booking hall video.

In the Crown's view, the officers in question intended to record the booking procedure evidence,testified as to the reasons for not doing so, and gave evidence as to their interactions with the accused at the material time. No prejudiceresulted to the accused as a result. There is therefore no basis to stay proceedings against him on account of his inability to make fullanswer and defence. [44] In reply, Mr. Uppal argues that Deesasan case can be distinguished on its facts. There the officers were not personally at fault forthe equipment malfunctioning.

In this case, there was human error and negligence on the part of Officers Wrong and Reimer. Moreover,actual prejudice resulted to the accused, given that the evidence would exonerate him had it been properly recorded. [45] There can be no question that evidence taken at the police division showing in recorded form, the interactions between anaccused and police officers, is highly relevant. This is particularly so in drinking-and driving cases where such evidence, from the time ofthe roadside stop to the accused's release from the station, can demonstrate the presence or absence of indicia of impairment.

It can alsosubstantiate, or not, the giving of rights to counsel, the caution, a breath demand, the breath tests themselves or attempts to provide them,and various .other important aspects of the police investigation that are routinely canvassed in court proceedings. It is for good reasonthat such evidence is routinely recorded, in audio and video form, and disclosed to the parties in due course. [46] The instant case, however, is markedly different from the cases relied upon by the accused, Mr.

Uppal, where the failure of thepolice to preserve evidence for independent testing attracted s.7 scrutiny: see R v Hassan, and R v Bero (2001), (ONCA), 137 O.A.C. 336, referenced in the Hassan decision. Stated shortly, evidence that is not created cannot be disclosed: R v Oeesasan,para 30; R v Machado, para. 102. [47] To be sure, it was the stated intention of the booker and his sergeant in the instant case to record the entire booking process andmake it available for any trial proceedings.

Once they became aware of the camera not being activated, they immediately took steps todo so, and properly detailed the failure of its operation in their notes, which were disclosed to the accused. This is hardly evidence of badfaith or ma/a tides in terms of their dealings with Mr. Uppal. [48] It follows that the police were not attempting to deceive the accused of the operation of the recording equipment.

Moreover, theytestified as to their interactions with the accused at the time of the booking procedure and confirmed that he was cooperative and notsuffering from any injuries or had any complaints at the time. [49] Whether or not Mr. Uppal exhibited symptoms of impairment in the booking hall is not a matter exclusively within the purviewof the recording apparatus. For example, Sgt.

Reimer's testimony was that he could smell the odour of alcohol on the accused's breathbefore he arrived.at the booking room counter; this sensory perception would not have been captured on the recording equipment had itbeen activated.

Indeed, the witnesses present may be questioned or challenged as to their observations, quite independent from thecamera angle, and what it may reveal or not. [50] I find no appreciable difference, in any event, in the conduct of the authorities in this case, where they thought they wererecording the booking process of the accused but· inadvertently forget to switch on the camera, than in Oeesasan, where the equipmentmalfunctioned without the involvement (and very likely without the knowledge) of the officers in question.

The former is a case ofoperator error; the latter machine error. .The result is the same: non-existence of evidence in recorded format, which therefore cannot bedisclosed. [51] In both such instances, the accused was provided with videotape evidence of other parts of his investigation by the police, as wellas witnesses who testified as to what occurred over the period of the deficient or inactive video recording. [52] Moreover, in this case, the authorities did switch on the camera, but failed to record the entirety of the booking process.

At mostit can be said, it seems to me, is that the accused was not provided with full video and audio disclosure but was given substantialdisclosure of such evidence in the form of the officers' notes and testimony, upon which he was able to cross-examine in a fulsome andable and comprehensive manner, as the transcript of his lengthy cross-examination of these witnesses reveals. [53] The entirety, otherwise, of the accused's dealings with the police, from the moment of his roadside stop, multiple times in thebreath testing room, and eventual release from the police station, has been video recorded and disclosed in full.

There is, in fact, over twohours of video and audio tape recordings involving the police and Mr. Uppal that have been entered into evidence as exhibits in theseproceedings. [54] In essence, then, a sliver of the case against this accused person was not completely recorded. It consists of less than 15 minutesof more than two hours of videotaped evidence furnished by the police. It does not directly address the allegations of impairment orrefusing to provide a breath sample. [55] Reduced to its essentials, two experienced and responsible police officers, tasked with ensuring Mr.

Uppal's safety and well-being while at the detachment, and not otherwise involved in the investigation against him, in the midst of performing proper policefunctions, such as noting Mr. Uppal's physical and mental condition and property on him, and logging this information into the system,did not immediately switch over cameras to record his presence with them. Upon realizing their error, the camera was switched on. Itrecorded the booking process from this point on. This error was duly noted by the officers and brought to the accused's attention throughdisclosure.

This is hardly the stuff of unacceptable negligence or deliberate or intentional misleading conduct. [56] Much like the failure to record the second breath sample of the accused in the Machado case which was found to haveoccasioned no prejudice or negatively impacted the right to make full answer and defence, I am unable to apprehend how the oversightby Officers Wrong and Reimer to immediately switch the camera from the sallyport to the booking hall until the "back half' of the

booking process, adversely impacts or undermines Mr. Uppal's defence in any significant or meaningful way. [57] Quite apart from this booking process interaction, which occupied as I have noted, less than 15 minutes of actual time, and the involvement of Officers Wrong and Reimer, as well as the accused, Mr. Uppal, there is a sufficient body of evidence led at the trial proper – regardless of whether any defence evidence is called – that will permit the court to make the relevant determinations on the issues of impairment and refusal to provide a breath sample.

This body of evidence, which is recorded on video and audio tape in its entirety, and as I have noted is well over two hours in length,. includes that of the arresting officer and qualified lntoxilyzer operator, who are the principal witnesses in these proceedings. They have been extensively questioned by Mr. Uppal, and the video evidence that they recorded, played multiple times, at his request. [58] I am therefore of the respectful opinion that Mr. Uppal's right to make full answer and defence has not been infringed by virtue of a portion of the booking hall video not being recorded in its entirety.

The failure to record this procedure on the booking hall camera was clearly accidental and an oversight. The omission to do so, while unfortunate, was inconsequential in all the circumstances of this case. [59] Mr. Uppal's application for a stay of proceedings due to lost evidence must therefore be dismissed. R. Libman J. 19 February 2021