2016 NBPC 6, 2016 NBPC 6

2016NBPC06 File: 04587811 CANADA PROVINCE OF NEW BRUNSWICK BATHURST PROVINCIAL COURT B E T W E E N: HER MAJESTY THE QUEEN - and - KRISTINA LYNN HENNESSY DECISION ON A MOTION FOR A STAY OF PROCEEDINGS BEFORE: The Honourable Judge Ronald LeBlanc AT: Bathurst, NB DATE OF HEARING: July 6, 2016

DATE OF DECISION: September 27, 2016 APPEARANCES: Mr. René Dumaresq, for the Crown Mr. Luc Roy, for the accused 1 . The Crown’s obligation to disclose to an accused person all relevant information in its possession is not only well established at common law, but it is also now constitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms : R. v. M c Neil , [2009] S.C.C. 3 at para. 14.

How that constitutionally protected right is impacted by a police officer’s failure to safeguard very relevant evidence against that person is the subject of this decision. FACTS 2 . Ms. Kristina Lynn Hennessy’s vehicle was intercepted by Cst. Kurtis Ross of the Bathurst Police Force on August 1, 2014. She was later charged with impaired operation of a motor vehicle and driving a motor vehicle with a blood alcohol concentration in excess of .08 as a result of that stop.

She provided a breath sample into an approved screening device, resulting in a “Fail” reading, and was then transported to the police station to provide samples of her breath into an approved device. 3 . The police station is equipped with stationary cameras at a number of locations. These operate by motion sensors: when the camera detects movement, it records the area automatically. There are six cameras inside the police station. All record video and audio of what is captured on camera.

An example of what can be seen and heard on the various cameras is demonstrated by Exhibit VD-2, produced for the purpose of showing to the Court what can normally be seen on the DVDs that are given to defence counsel and to accused as part of the disclosure package. The DVD shows six boxes on the monitor, one for each of the six cameras, all viewable simultaneously. As a person walks from one area of the police station to another, that movement is captured and can be subsequently viewed on each of the six screens seen on the monitor. 4 . It is a very comprehensive system. One camera captures the garage bay.

We can see the police car arrive and enter the garage. It captures the people who exit the vehicle and walk towards the door leading up to the booking area. The second camera captures people entering the booking area and their approach to the booking desk. The third camera captures the activity at the booking desk. It includes a view of the door to the breathalyzer room off to the right and of the fingerprint room off to the left of the screen. This camera would therefore capture people walking to either one of these two rooms.

The fourth camera shows the interior of the breathalyzer room, including the instrument used to obtain breath samples and the chair upon which the detainee sits when providing the breath samples. The fifth camera shows the interior of the fingerprinting room. The last camera captures the door used by detainees to make phone calls to counsel. There is obviously no camera that captures the interior of this interview room. 5 . All recordings are captured on a hard drive and stored there for a period of time. The duration of the storage of these recordings fluctuates.

The hard drive has a set amount of memory and when that set point is reached, new data is recorded over the old data, which is then irretrievably lost. Consequently, the greater the activity recorded, the lesser the amount of time the data will be retrievable. It is estimated, however, that normally the police can retrieve data for approximately one year from the date of the recorded event. 6 .

It takes five minutes, approximately, for a police officer to log in, enter the necessary passwords, type in the date and period of time sought on the recordings for disclosure purposes and copy onto a DVD the events shown during that time period. 7 . It is conceded by the prosecution that the contents of the video, capturing the interior of the police station for persons accused of impaired driving offences, would be highly relevant evidence. 8 . Ms. Hennessy does not have access to that highly relevant evidence because Cst. Ross did not retrieve it.

9 . Cst. Ross testified that he was unable to retrieve the data for one of two reasons: either he simply forgot to copy it or the system was malfunctioning. He did not know which of these two scenarios was correct. 10 . Having heard the evidence concerning this incident, I conclude that there was no system malfunction. I arrive at this conclusion for a number of reasons. Cst. Ross had no recollection of burning the DVD in this case. He took no note of the fact that there was a malfunctioning of the system.

If there had been a malfunction, two things, in my opinion, would certainly have happened: he would have noted it in the file because of the importance attached to the non-disclosure of relevant evidence and he would have notified his superiors about the system malfunction, neither of which occurred. So I find that Cst. Ross forgot to download the events onto a DVD for disclosure purposes. 11 . Cst. Ross explained that he does not necessarily copy the events onto a DVD immediately following the events.

He may be near a shift change, there may be other matters requiring his immediate attention or there may be any other number of factors that may cause a delay in copying the data. It could be days or weeks before he gets around to copying. He acknowledges however that it is his responsibility to provide that disclosure to the Crown. 12 . Indeed, that responsibility forms part of the Directive Manual for the Bathurst Police Force.

Entitled “Disclosure Protocol”, the directive states in part that “Officers dealing with prisoners in the cell block area are to make appropriate copies of the footage and enter the recording into evidence in all of the following cases: (

a) impaired driving cases…” This is to be done “as soon as possible”. Cst. Ross acknowledged he was aware of the directive. 13 . The Information against Ms. Hennessy alleging offences under s. 253(1) (

b) and 253(1)(

a) of the Criminal Code was laid on October 6, 2014. On October 24, 2014, her lawyer, Mr. Luc Roy, called the Crown Prosecutors’ office to obtain a copy of the disclosure package. That call is verified by a document that is filled out and kept on file in the Crown’s office. It was introduced during the voir dire as Exhibit VD-3. The disclosure package, absent the DVD, was sent to the Crown’s office and subsequently forwarded on to defence counsel, Mr. Luc Roy. 14 . On April 6, 2016, one week before the scheduled date for trial, Mr. Roy sent a letter to the Crown’s office by fax. He asked whether Cst.

Ross’ police vehicle utilized a camera and if so, to provide its video. (There was no video of the interior of the vehicle in question.) He also asked for documents relating to the notes and qualifications of the qualified technician. That letter was marked VD-4 at the voir dire. A copy of this letter was forwarded to the Bathurst Police Force on April 7, 2016. 15 . On April 12, 2016, the day before the scheduled date for trial, Mr. Roy sent two more letters to the Crown’s office. The first involved additional information concerning the approved instrument used to obtain the samples.

The second was for (translation) “all video that could have been recorded at the police station involving the accused on August 1, 2014”. How Mr. Roy came to be made aware of the existence of recording equipment at the police station was not presented into evidence at the voir dire. 16 . On April 13, 2016, the date set for trial, Mr. Roy requested an adjournment of the trial because of the recently surfaced problem concerning the lack of disclosure. The adjournment was granted and a date was set for a voir dire for a Charter violation involving non-disclosure. 17 . On April 15, 2016, Mr.

Roy faxed a letter to the Crown’s office specifically requesting disclosure of any video evidence relating to the cameras at the police station, including copies of any applicable police policy regarding destruction of video evidence and reasons why such was not disclosed by Cst. Ross. 18 . Cst. Ross responded that he did not burn the DVD from the hard drive and could not recall why. As of April 12, 2016, the day before the scheduled trial, the oldest date that could be recovered and was available on the hard drive was in January, 2015. 19 . Mr.

Roy then filed a Notice of Application seeking a stay of proceedings for non-disclosure.

POSITION OF THE PARTIES: THE DEFENCE 20. Mr. Roy submits that the video of the events should have been disclosed following the request for disclosure on October 14,2014. He submits that Cst.

Ross was very negligent in not preparing the disclosure package in accordance with the law and in compliancewith the existing police policy, that the systemic destruction of the video evidence was prejudicial to his client’s right to a fair trial, that itis not up to the police to decide what is or is not relevant, that the obligation to disclose is a continuing one and that the police wereobligated by law to provide the evidence. He advances the theory that the case of R. v.

St-Onge Lamoureux, 2012 SCC 57 ,2012 SCC. 57, [2012] 3 S.C.R. 187 makes disclosure of what happened in the breathalyzer room even more relevant. Finally, he positsthat the Court should send a message to Cst. Ross, who has now twice failed to provide videotaped evidence in breathalyzer cases (citingR. v. Ben Sassi, [2016] N.B.P.C. 01). He acknowledges that the stay of proceedings requested is a drastic remedy but that it is a requiredremedy to redress the egregious failure to provide the requested disclosure. THE PROSECUTION 21.

The prosecution admits that the disclosure obligation crystallized upon the request made on October 14, 2014, and that thefailure to provide disclosure of the DVD constituted a breach of s. 7 of the Charter. They admit that Ms. Hennessy’s right to full answerand defence under s. 7 of the Charter has been breached by the non-disclosure. They also concede that Cst. Ross was negligent in notproducing the DVD. They contest the remedy sought however, inviting the Court to look at the broader picture.

They ask the Court toconsider the following factors: there was no bad faith, merely a mistake; the police have in place a system that retains events recorded onthe hard drive for about a year; the request for the video of the events at the police station occurred about a year and a half after theinitial disclosure package was provided; had the request for disclosure of the DVD occurred earlier, it would have been provided and thevideo would not have shown anything out of the ordinary or unusual.

The Crown questions the true relevancy of the erased recordingsand states that although there was negligence, there was no “great negligence”. The Crown argues that all reasonable steps were taken topreserve the evidence in this case. The Crown wants the Court to consider that the evidence that would have been captured on video alloccurred in the presence of the accused; consequently, she would be aware of the contents of the video in any event. He states that thereis no evidence, in this case, that would demonstrate that the right to full answer and defence has been compromised. THE JURISPRUDENCE 22.

An accused’s right to disclosure of evidence is a component of an accused’s right to make full answer and defence: R. v.Stinchcombe, (SCC), [1991] 3 S.C.R. 326. In turn, an accused’s right to make full answer and defence is a principle offundamental justice in s. 7 of the Canadian Charter of Rights and Freedoms. Therefore, a breach of the Crown’s duty of disclosure is abreach of an accused’s constitutional rights under s. 7 of the Charter: R. v. Sheng, (2010) 2010 ONCA 296 , 254 C.C.C. (3d)153. It is the duty of the Crown and the police to preserve the fruits of the police investigation: R. v.

La, (SCC), [1997]2 S.C.R. 680. 23. In R. v. Bero, (2000), (ON CA), 151 CCC (3d) 545 (Ont.C.A.), Doherty, J.A., in para. 30, adopted thefollowing

summary of the proper approach to a claim that the failure to preserve evidence has resulted in a breach of Charter right: 30 “The trial judge also erred in concluding that there had been no breach of the appellant's constitutional rights. Theproper approach where any accused claims that the failure to preserve material in the possession of the Crown results in abreach of a Charter right is found in R. v. La, supra. That approach is conveniently summarized by Roscoe J.A. in R. v. F.C.B.(2000), 2000 NSCA 35 , 142 C.C.C. (3d) 540 at 547-48 (N.S. C.A.): 1.

The Crown has an obligation to disclose all relevant information in its possession. 2. The Crown's duty to disclose gives rise to a duty to preserve relevant evidence. 3. There is no absolute right to have originals of documents produced. If the Crown no longer has original documents inits possession, it must explain their absence.

4. If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the dutyto disclose has not been breached. 5. In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider thecircumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost andwhether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should betaken to preserve it. 6.

If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of theaccused's s. 7 Charter rights. 7. In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if forexample, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosureobligation. 8.

In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only ifit is one of those rare cases that meets the criteria set out in O'Connor. 9. Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in someextraordinary case, there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answerand defence that it impairs the right to a fair trial. In this case, a stay may be an appropriate remedy. 10.

In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stayapplication after hearing all of the evidence.” 24. It is therefore self-evident that the fact that relevant evidence is not disclosed because it has been lost or erased does notautomatically result in a Charter breach. A person’s constitutional right to disclosure or to make full answer and defence is notautomatically breached in such circumstances: see R. v.

La, (SCC), [1997] 2 S.C.R. 680 at para. 20: 20 “…Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence willoccasionally be lost. The principle in Stinchcombe, supra, recognizes this unfortunate fact. Where the Crown’s explanationsatisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose hasnot been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations,and there has accordingly been a breach of s. 7 of the Charter…” 25.

Since the prosecution has admitted a s. 7 Charter breach by reason of the loss of relevant evidence in this case, they concedeby necessary implication that there was unacceptable negligence in the destruction of the evidence. The only matter to be addressedtherefore is the suitability of a stay of proceedings as a remedy. 26. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actualprejudice caused by the loss or destruction of the evidence: R. v. Sheng, (2010) 2010 ONCA 296 , 254 C.C.C. (3d) 153 at para.3; R. v. La supra, at para. 25. 27.

The case of R. v. Taillefer; R. v. Duguay, [2003] SCC 70 defines the nature of the stay of proceedings as a remedy, at para.117 to 119: 117 “This Court has frequently underlined the draconian nature of a stay of proceedings, which should be ordered only inexceptional circumstances. A stay of proceedings is appropriate only “in the clearest of cases”, that is, “where the prejudice tothe accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to theintegrity of the judicial system if the prosecution were continued” (O’Connor, supra, at para. 82).

It is a “last resort” remedy, “tobe taken when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted”(O’Connor, supra, at para. 77; see also Tobiass, supra, at paras. 89-90; Carosella, supra, at paras. 52-53; Regan, supra, at paras. 53et seq.). 118 In O’Connor, supra, at para. 75, this Court adopted principles to circumscribe the power to order a stay of proceedings.These principles confirm the seriousness of such a decision and the need for a careful and balanced analysis of all the interests atstake — the interests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases

being diligently prosecuted. Those principles hold that a stay of proceedings will be an appropriate and fair remedy where: 1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of thetrial, or by its outcome; and 2) no other remedy is reasonably capable of removing that prejudice. 119 These criteria recognize the prospective rather than retroactive nature of the remedy.

Although, in very rarecircumstances, the conduct of the prosecution may be so serious that a stay of proceedings is required in order to avoid bringingour system of justice into disrepute, it is not the purpose of this remedy to punish blameworthy conduct on the part of the State.The remedy is primarily meant to prevent an abuse from being perpetuated or aggravated (Regan, supra, at para. 54; Tobiass,supra, at para. 91).” IS A STAY OF PROCEEDINGS AN APPROPRIATE REMEDY? 28.

The Ontario Court of Appeal had occasion to examine the granting of a stay of proceedings arising from erased video at apolice station in a refusal case in R. v. Dulude, (ON CA), [2004] O.J. No. 3576; 189 C.C.C. (3d) 18. The Courtupheld the trial judges’ findings that the security videotape was relevant and that the Crown’s failure to disclose it constituted a breach ofthe accused’s s. 7 and 11(

d) Charter rights. At para. 36 of the judgment, in addressing the third issue, whether a stay of proceedings wasthe appropriate remedy, the Court stated as follows: 36. “…A stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdicton the merits. A stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosureirreparably prejudices either the accused’s ability to make full answer and defence, or the integrity of the administration ofjustice.

See R v Bero at para. 42; R v Leduc (2003), (ON CA), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99; R v.O’Connor, (SCC), [1995] 4 S.C.R. 411 at para. 68; and R v. La, supra, at para. 23.” 29. In this case, I find that the integrity of the justice system has not been prejudiced. First, there is no allegation that the BathurstPolice Force intentionally destroyed the recordings. The opposite is true. The police force has in place a very functional and effectivevideo and audio recording system that captures images and sound for all detainees at the police station.

The police have a policy ofdisclosure of the events captured by those cameras for use as evidence, and instruct their officers to make copies for disclosure purposesas soon as possible. Copies of these DVDs are provided to defence counsel as a matter of routine in alcohol-related cases. 30. Second, Cst. Ross made a mistake. Mistakes do happen. He forgot to copy the events on video. He was negligent in doing sobut negligence, even unacceptable negligence, does not necessarily prejudice the integrity of the justice system. The Courts must, and do,acknowledge that, on occasion, mistakes are made.

This was not a systemic problem. There is absolutely no evidence to suggest that thiscase demonstrates a systemic disregard for the prosecution’s obligation to preserve relevant evidence. 31. Third, the recordings are kept for what I consider to be a reasonable amount of time, particularly for a drinking and driving-related offence. Unlike other cases involving non-disclosure of police station video where the retention period is three months, theBathurst Police Force retention period is closer to one year.

In normal circumstances, in prosecutions for alcohol-related offences, thatperiod of time would be more than sufficient to obtain disclosure of the recorded events, even if the police officer forgot or neglected tocopy the DVD soon after the events have transpired. Cst. Ross testified that for alcohol-related cases, as a matter of routine, he producesthe DVD and provides copies to the Crown. Why defence counsel, or indeed the Crown’s office, did not notice the absence of a DVD inthis case was not pursued in the voir dire. 32. The situation here is totally different than the one presented in the case of R. v.

Leung, 2008 ONCJ 110 , [2008] O.J.No. 1008 where Armstrong, J. of the Ontario Court of Justice found that the destruction of video evidence at the police station in relationto a drinking and driving offence did irreparably prejudice the integrity of the administration of justice. At para. 21, the justice stated: 21 “…For about nine years, judges in this court-house have expressed concern about the destruction of evidence captured onvideotape at the police station and have criticized the retention policy. Numerous cases have been stayed, but little has changed.”

33 . In fact, the only change noted in that case was the lengthening of the retention policy from 30 days to 60 days, which the Court held to be a “woefully inadequate response”. The Court held, in para. 22: 22. “…The continuation of this policy reflects a systemic disregard for the Crown’s obligations to preserve relevant evidence and to provide disclosure, and for the defendant’s constitutional right to disclosure. The Crown’s obligations and defendant’s rights relating to disclosure do not expire in sixty days. Nor should the videotape retention period.” 34 . Mr.

Roy’s reference to the Ben Sassi case is unfortunate. The facts are completely dissimilar, even though the same arresting officer was involved. In that case, Cst. Ross had asked the sergeant in charge of providing copies of DVDs for events occurring and recorded in a police vehicle to make a copy for disclosure purposes. Sgt. Daley was unable to make a copy. She eventually provided late disclosure by filming the events seen on a monitor and providing the defence with this new exhibit. The recording was never erased and was eventually provided to the defence.

This does not constitute a pattern of irresponsible behaviour on the part of Cst. Ross. The Ben Sassi case focused on the delay in providing disclosure, which delay was not attributable to Cst. Ross. 35 . There being no prejudice to the integrity of the justice system, the stay would be warranted only if Ms. Hennessy’s ability to make full answer and defence or her ability to have a fair trial were irreparably prejudiced. It also requires the Court to assess whether the prejudice that does exist can be alleviated by lesser means: Dulude , supra, at para. 38 .

The examination would focus in large part on the extent of the actual prejudice caused by the loss or destruction of the evidence in this case. 36 . The true dilemma presented here is that such prejudice is difficult to assess in the absence of the evidence that has been lost. Defence counsel did not lead evidence of actual prejudice at the voir dire. The Crown wishes the Court to conclude that the video would have had minimal impact on any defence that could be presented because this is nothing more than a routine impaired operation case and the video would not show anything out of the ordinary. 37 .

The fact is that at this point, proof of prejudice is speculative. The reasons for the interception and the grounds obtained justifying the reading of the demand for the approved screening device all were obtained prior to arriving at the police station. Since a “Fail” reading was obtained, the reasonable and probable grounds for the reading of the breath samples demand appear to be adequate.

Regardless of whether the video might show a detainee at the police station who displayed no obvious signs of impairment, the reasonable and probable grounds for the demand would likely still be sufficient, considering the “Fail” reading. The 253(1)(

b) charge would be proven by admission into evidence of the qualified technician’s certificate. There could be an argument advanced that the evident lack of indicia of impairment as shown on the video could contradict the anticipated testimony of the arresting officer thereby affecting his credibility and reliability as a witness, but that is yet to be proven. Although the 253(1)(

a) charge is more problematic for the Crown because the video may have shown an absence of indicia of impairment, this is speculative at this point due to the absence of any evidence on this point. 38 . Mr. Roy has argued that the St-Onge Lamoureux case has made evidence of what has occurred in the breathalyzer room more relevant than previously. Presumably, he is asking the Court to conclude that there might have been evidence on the video that would assist him in establishing the fact that the qualified technician did not follow proper procedures in obtaining the samples.

I would reiterate that the prosecution has admitted that what would have been shown on the video taken inside the breathalyzer room would be very relevant. This is not disputed. However, when considering whether a stay of proceedings is the appropriate remedy for the loss of the evidence, the relevance of that evidence has already been taken into consideration. The Crown has admitted its relevance. If it had not been relevant, there would be no grounds for a motion for a stay. 39 . During argument at the conclusion of the voir dire, Mr. Roy stated that he may apply for a remedy under s. 24(2) of the Charter .

If that is the case, different considerations would come into play in arriving at an appropriate remedy. 40 . In my estimation, having considered the proceedings to date, the more appropriate remedy at this point is to simply suspend the decision as to the granting of a stay of proceedings until the trial evidence is completed. This would allow the defence to lead evidence about how the lost video may have assisted Ms. Hennessy in establishing that her ability to make full answer and defence or her ability to have a fair trial were irreparably prejudiced.

I adopt this position because of my impression that the thrust of Mr. Roy’s arguments focused on the existence of the breach, not on the appropriate remedy for the breach. The decision on this final issue would be better left until after the evidence has been presented and the Court has had more evidence to consider in arriving at a just determination. This in effect was the decision rendered in R. v. Dulude , supra, R. v. Bero , supra and R. v. Foster , [2001] N.B.J. No. 163 (NBCA) . 41 .

Remitting the decision until after the conclusion of the trial evidence also allows the Court to deal with the possible second motion for exclusion of evidence arising from the same breach. Both could be determined at the same time.

42 . The trial therefore will proceed on the basis that there was a Charter violation for non-disclosure of relevant evidence that has been destroyed due to unacceptable negligence and for which there has been no satisfactory explanation proffered by the Crown. The Court has concluded that such loss of evidence did not result in prejudice to the integrity of the justice system. The Court will reserve its decision as to whether Ms.

Hennessy’s ability to make full answer and defence or her ability to have a fair trial were irreparably prejudiced by the non-disclosure until after the conclusion of the trial, giving defence counsel the opportunity to address more adequately this issue. 43 .

I realize that this conflicts with my earlier statement at the conclusion of the voir dire that the presentation of the evidence at that hearing should suffice to allow me to address the issues, but I have concluded otherwise on due reflection, considering the following three factors: first, the total lack of evidence presented on the topic of actual prejudice; second, the possibility that there might be some evidence presented during the trial that could touch on that issue, particularly in relation to the charge under s. 253(1) (

a) of the Criminal Code ; and third, the Court could deal with the applicability of a s. 24(2) Charter remedy at the same time as this one. 44 . For these reasons, the decision on the motion for a stay of proceedings is adjourned until the conclusion of the trial evidence. Dated at Bathurst, New Brunswick, this 27 th day of September, 2016. __________________ Ronald LeBlanc Provincial Court J udge