R. v. Miniaci, 2011 ONCJ 491

Citation: R. v. Miniaci , 2011 ONCJ 491 ONTARIO COURT OF JUSTICE OLD CITY HALL, TORONTO REGION BETWEEN: HER MAJESTY THE QUEEN — AND — MATTHEW MINIACI Before Justice S.R. Shamai Reasons re Charter Application and Trial released September 12, 2011 Ms. Onelia Delgado ……….……………..……………………………………..… for the Crown Mr. Andrew Furgiuele ……………….................................. for the accused, Matthew Miniaci SHAMAI J: INTRODUCTION [ 1 ] On July 25, 2010 an incident occurred at the intersection of Peter Street and Richmond Street West in downtown Toronto, at 2:35 a.m.

The incident resulted in charges of assault police, assault resist arrest and fail to comply probation, against the Applicant/Accused in this case, Matthew Miniaci. Mr. Miniaci applies for a stay of proceedings in this case as he contends that his rights under

Section 7 of the Charter of Rights and Freedoms were violated by the Toronto Police Service action in destroying videotape recording, likely a recording of precisely the incident. The video recordings of the intersection, says the Applicant, were highly relevant evidence, that would have been disclosed had it been preserved. In failing to preserve the recording, Mr. Miniaci’s right to make full answer and defence was violated. He seeks a declaration that his rights under

Section 7 of the Charter were violated and consequential relief by way of a stay. THE FACTS 1. What Happened: The Alleged Assaults [ 2 ] Mr. Miniaci, a 21 year old man at the time of trial, was with a group of friends, having been at one of the establishments in the Entertainment District of downtown Toronto, and admittedly consuming alcohol. At the intersection of Peter and Richmond Streets, there were a number of police officers. Notably, two were mounted on horses, and two others were not. Peter Street, the north-south axis, was blocked to traffic just below Richmond Street West.

A police car was parked across Peter Street, blocking traffic, and two police horses, mounted by Constables McCaw and Dale, stood just south of the intersection as well. The officers started their patrol there around 1:50 a.m. The officer who testified did not have the specific time he witnessed the incident with Mr. Miniaci. [ 3 ] Mr. Miniaci crossed Peter Street, on the south side, in the direction of the mounted officers, although the light had turned red to his approach. He was summonsed back to the sidewalk by one of the officers, who directed him to stop walking and return to the west

side of Peter Street. Mr. Miniaci complied with the police request that he show his identification, however, according to Constable Tauro, he attempted to run off, and collided with Constable Boisvert. Constable Tauro attempted to detain Mr. Miniaci, but says Mr. Miniaci resisted, and in the course of the interaction, the officer injured his arm. Crown alleges that Miniaci’s collision with Constable Boisvert was a deliberate assault, and that his resistance to Constable Tauro was for the purpose of resisting arrest, thus giving rise to the assault police and assault resist arrest charges.

The fail to comply relates to the keep the peace condition of a probation order, which admittedly bound him at the time. [ 4 ] Two mounted officers assisted in patrolling the Entertainment District at Peter and Richmond that morning. Constable McCaw provided his evidence to the court. He described the mounted patrol, saying in part that as eye contact between the horses has a calming effect for the animals, so the officers position themselves nearby each other, to allow the horses this form of contact. I understand thus that the officers were close to each other.

Constable McCaw testified that he observed two officers, whom he did not know by name, speaking with Mr. Miniaci, and that it was obvious to him it was an investigation. He stated that he was not aware of anyone trying to touch or hit the horses. He was not asked, but said nothing about himself or his partner on the other horse shouting out to a pedestrian not to touch the horses, nor about an attempt to charge anyone with an offence, described by another police witness as failing to obey a crosswalk signal. He observed Miniaci push past the officers. He said he bolted and pushed through the two officers.

Responding to a question whether there was any body contact between them, he suggested the other officers would have best evidence of that, though it appeared to him that there was contact. He stated that he saw the female officer rubbing her arm, and understood that she had hurt her arm in the incident. [ 5 ] Constable Tauro is the officer whose arm was hurt in the incident. He is in fact the male of the two officers who dealt with Mr. Miniaci on foot.

He says that his first contact with the defendant was to tell him what he had heard from the mounted officer, that the latter wanted to charge him with failing to obey crosswalk signals. He said he was first aware of Miniaci as an individual running west to east across Peter Street on the south side of Richmond. He was running out ahead of the others in his group, with a finger in the air, saying some profanity, like “fuck you” or “fuck the police” or something. However when so advised by the officer, Miniaci walked toward the horses with their officers.

In fact Tauro had held him by the arm, a form of detention, when he first advised him of the mounted officer’s need to issue a ticket. Tauro says he observed a conversation between the mounted officers and the young man, during which he pulled out his wallet, saw the man look around, and run by Constable Boisvert. He deduced there had been contact as he saw her “jolt to the side”. However he said as well that there had been nothing unusual about Miniaci’s body language before he “jolted” toward Boisvert. He said he ran but only a step or two, which made him think Miniaci was drunk.

However, again interpreting “body language”, Tauro said Miniaci was poised to run. Tauro said that the defendant pushed his partner aside, though he didn’t know if he used his hands, he just knew that “contact was made”. His impression that Miniaci was running was a “subconscious” assessment, not based on any physical manifestation he could name, just body language. Tauro pursued the young man, though it only took a “quick couple of steps” before he tackled him to the ground. Tauro had previously broken his right arm, and felt a sharp pain as soon as they were on the ground.

Miniaci was on top of his arm, Tauro was on top of Miniaci. He said he thought Miniaci was resisting arrest, grasping his hand as the officer tried to arrest him, not releasing his arm. In the result, his hand was a little swollen, but there was no further injury to it. [ 6 ] Mr. Miniaci testified in his own defence. He said that he and his friends went out to enjoy an evening in the entertainment district. He stated that by the time he became involved with police he had consumed 9 or 10 drinks, and adopted the description of one of the police witnesses, that he was walking without direction.

He said he was pretty drunk, but had a sense of what was going on. He in fact resolved a discrepancy in the police evidence, whether a mounted officer called him over, by adopting the version against his interest. He described being investigated by officers, and where various officers were in relation to himself, when the patdown search was conducted. The search Mr. Miniaci described was at the point he was being investigated for jaywalking, a provincial offence. He complied with the direction to empty his pockets and put his hands on the car, so they could pat him down.

He described the officers as standing around him in a semi-circle. He said that when he attempted to get his belongings back into his pocker, and show identification as directed, he stumbled off the police car, “threw my hands back, turned and stumbled, caught myself,” – all within a foot or so of the female officer, who grabbed his right arm as he tumbled across the car, shouting “he’s trying to run”. He was forced down to the ground by Cst. Tauro. He denies assaulting the officer, denies resisting. Under vigorous cross-examination, Mr.

Miniaci said his judgment was not impaired, he certainly knew not to get in a car to drive, as he knew his centre of balance was off. He agreed his judgment is “not so good” when he is drunk. Asked whether he thought it was wise to get drunk, he said that as he knew his limits, he was not acting in an unsafe manner. Having agreed that he said something like “fuck the police”, he agreed further that he would not likely have said such a thing if he were sober. He agreed that he made bodily contact with Constable Boisvert, but says it was inadvertent, as he slid across the car, after losing his balance.

He took the position that according to what he heard, he was arrested because he was trying to run, not because he had assaulted an officer. He denies bending Tauro’s hand, as alleged, in the course of the arrest when he was pinned on the ground. Mr. Jesse Amaya, one of the party with Mr. Miniaci, testified as well, and supported his account of stumbling, not running from the officers. He said there were too many officers dealing with Mr. Miniaci to think he was resisting, that generally he was roughly handled. [ 7 ] Depending on which evidence I accept, Mr.

Miniaci may or may not have been under lawful arrest at the time he collided with Constable Tauro. Similarly, the interactions between them may or may not amount to international application of force. Certainly, the events in relation to possible jaywalking a provincial offence, could not give rise to an arrest, as Mr. Miniaci was producing identification.

2. Video Recordings of the Scene? [ 8 ] That same day, July 25, Mr. Miniaci was released on bail, and retained counsel forthwith. Counsel retained a private investigator two days later, on July 27, to determine whether any video recordings of the incident existed. In fact, a police camera (police camera #25) was mounted at the southeast corner of Peter and Richmond. It was pointed at the intersection. Evidence disclosed that the camera revolved 360 degrees in 60 to 90 seconds and recorded continuous images of the scene at the intersection.

In addition, a second camera (#29) was on the west side of Peter Street at Adelaide Street, one block south. This camera was pointed in the general direction of the Peter/Richmond intersection. [ 9 ] Counsel was advised of this by the investigator, whose affidavit forms part of the record, on July 29, 2010. The following day, July 30, counsel sent a detailed letter for disclosure to Crown requesting disclosure with specific mention of the camera’s, and an “instruction” that any video recordings from both camera #25 and #29 be preserved and disclosed.

In due course counsel learned that his action, although prompt, was too late, as the Toronto Police Service overrides the video every 72 hours – the tape is re-recorded – unless there is an incident which prompts an investigation during those 72 hours. In this case, Detective MacDonald testified that he simply did not put his mind to making the request within the relevant timeframe, although having occurred at the intersection he acknowledged the likelihood that relevant images might have been captured. 3.

Police Policy and Practice Regarding Video Recordings in the Entertainment District [ 10 ] Detective Leo MacDonald testified in the Crown’s case about his own responsibilities in ordering preservation of videotape. He was on duty in the detective office of 52 Division that night, where Mr. Miniaci was taken in custody. He received information from Constable Boisvert about the circumstances of the arrest, got the paperwork going, and decided which charges would be appropriate. He testified that he was aware of the videocamera’s in the area.

He said that the responsibility to order relevant videotape lay with him, and that he has done it in about 20 cases since May 2010. He says the order is made by e-mail to the officer in charge of the station, and steps are taken from there. All he has to do is make the request. He orders it if he thinks anything might have been caught on video. He described it as images taken by a camera on a 360 degree swivel. The full 360 degree swivel completes in 60-90 seconds.

He described the ambit of the camera: as it is slightly south of Richmond, it will not catch anything south on Peter, and does not give a full view west on Richmond. The camera at Peter and Adelaide could capture the scene on the west side of Peter St. and Richmond, as it points north on Peter Street, according to the investigator. Detective MacDonald’s experience with the images has been that the quality and the views are not helpful. However, he acknowledged that they were set up in the entertainment district because of shootings in the area, to protect public safety.

He says the 72 hour retention period was mandated by the Privacy Commissioner, and images are deleted after 72 hours, if no order is made to retain. Asked why did not order this part of video, he said he had no idea, that it was a mistake but not fuelled by any anger or malicious intent. [ 11 ] The background on creation of video recordings in this context, and policy regarding preservation of it demonstrates that some consideration has indeed been given by public officials in Toronto.

In 2006, City Council directed the Toronto Police Service to consult with the City in the development of best practices and privacy principles before the TPS Board adopts a video surveillance policy. In fact the retention period of three days for the video camera’s recording, subject to a specific decision within the period to retain for investigative purposes, was continued since 2006, despite the 2007 report of the Privacy Commissioner.

That report specifically addressed privacy considerations relating to the use of video surveillance cameras in public places, and formulated guidelines for their use. [ 12 ] The record filed on the application included the Guidelines for the Use of Video Surveillance Cameras in Public Places, September 2007, issued by the Information and Privacy Commissioner of Ontario.

This policy requires among other things that such equipment “only be installed in identified public areas where video surveillance is necessary to protect public safety, detect or deter and assist in the investigation of criminal activity”; and that the “organization should consider restricting video surveillance to time periods when there is a demonstrably higher likelihood of crime being committed and detected in the area under surveillance”.

The Commissioner recommends as well that such policies be reviewed and updated every two years or sooner if there is a change or upgrade to the video surveillance system. [ 13 ] The Commissioner recommends that an organization which creates records of personal information using video surveillance retain those records in accordance with a policy which includes retention periods which distinguish between that which “ has not been viewed for law enforcement or public safety purposes” and that which has been “viewed for law enforcement or public safety purposes.” (emphasis added; quotes from p. 8 of the Guidelines ).

The Toronto Police Services Board amended its policy in 2009, directing that the Chief of Police shall develop procedures governing the use of CCTV, requiring among other things “a reasonable retention period for recorded images, having regard to investigative requirements as well as privacy concerns.”. No evidence was provided to the Court that the Toronto Police Service has in fact developed or adopted a practice which reflects the issues identified by the 2007 report of the Privacy Commissioner and the subsequent 2009 direction of the TPS Board.

Thus, ironically perhaps, although a retention period of three years is in place with respect to video recordings of city owned property, parks and facilities to guard against damage, unauthorized intrusion and to ensure personal safety, once the videotapes have been obtained by Toronto Police as part of a police evidence file, the three day retention period, referred to in the Privacy Commissioner’s Guidelines, prevails for images taken by these surveillance cameras. This is a retention period prescribed in the Toronto Municipal Code regarding Records, amended as recently

as 2010. The irony sets in presumably because the records, so long as they are dormant and not required or active police purposes, areretained for three years. However, to the extent that the Entertainment District video cameras operate specifically to assist ininvestigation and deterrence of breaches of the peace and possibly other criminal activity, they are governed by a three day retentionperiod, unless specifically requested by an officer to be retained in the investigation file. THE LAW 1. Lost or Destroyed Evidence [14] Numerous judicial decisions have considered the issue of lost or destroyed evidence.

The impact of lost evidence in terms ofSection 7 entitlement to fair trial and making full answer and defence was notably considered in 1997 in Justice Sopinka’s judgment inthe case of R. v. La. The issue was considered earlier than that, by our Court of Appeal in the cases of R. v. Wickstead and R. v. A(D)(see Gaudette from para 32). A spectrum of analytical categories has arisen from the time of that decision, to assist a trial court facedwith an application such as this one in coming to a correct assessment of the problem.

Lost evidence may be the result of human error,which must arise from time to time despite best practices being instituted and officers acting in good faith. Officers may not considerevidenturary value, in destroying evidence: at the other end of the spectrum, evidence may be lost by the conscious action of an officeror another, acting to thwart the fair trial interest of an accused as in the case of R. v. Carosella. If a finding is made that the loss ofevidence makes out a

Section 7 breach, then a stay may be granted only in the clearest of cases that the applicant’s ability to make fullanswer and defence has been prejudiced: R. v. O’Connor. A series of cases in Newmarket suggest that a continued police policy todelete video recording, in the fact of judicial disapproval of the practice demonstrates the tension between the courts and police practices. Some courts have considered other remedies, short of a stay. Notably, Justice Doherty in the case of R. v.

Bero @ para’s 55 to 57 describe circumstances and well-accepted legal principle on the impact of lost evidence, which may give rise to a reasonable doubt duethe absence of evidence. Clearly the nature and impact of such evidence is somewhat speculative, but the court may in some cases stillmake a determination of impact which requires a remedy.

As the jurisprudence shows too, in many cases, the circumstances of the lossand the potential impact of the evidence does not result in a finding favouring the applicant. [15] Procedurally, the courts are directed to hear all the evidence before dealing with an application of this sort (R. v. G.S., R. v.F.C.B.) in order to determine fairly the circumstances under which the evidence was lost, and what its impact might have been at trial.That is the procedure followed in the instant case. [16] The principles expressed in La have been reduced to a list by the Court of Appeal for Alberta n the case of R. v.

F.C.B. , which isfrequently cited. Our Court of Appeal in Bero approved that

summary, at para. 30 of the decision. Paragraphs 5 and 6 of the list are mostpertinent in Mr. Miniaci’s case: 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 in itspossession, it must explain their absence. 4. If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty todisclose has not been breached. 5.

In its determination of whether there is a satisfactory explanation by the Crown, the court should consider the circumstancessurrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police actedreasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken 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 the accused’sSection 7 Charter rights. 7. In addition to a breach of

Section 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 disclosure obligation. 8. In either case, a

Section 7 breach because of failure to disclose, or abuse of process, a stay is the appropriate remedy only if it isone of those rare cases that meets the criteria set out in O’Connor, (SCC), [1995] 4 S.C.R. 411.

9. Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinarycases, there may still be a

section 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence thatit 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 stay application afterhearing all the evidence. [17] In this case the evidence makes it clear that the evidence in the form of a video recording was created but not preserved. Detective MacDonald testified that in not preserving it, he made a mistake, which he could not explain.

The actions of theApplicant/Defendant, in retaining counsel upon his arrest, within 24 hours, who in turn retained an investigator immediately, and made arequest for the videotape forthwith, shows diligence beyond reproach, and indeed beyond the standard which might be expected by theaverage accused person. Thus the first prong of the test is met, in terms of failure to preserve evidence. [18] Would the lost evidence have assisted Mr. Miniaci in his defence? The Supreme Court of Canada in the case of R. v.

Caroselladoes not require that the actual helpfulness of the lost evidence, given the impossibility of assessment of something no longer inexistence. This is not the rare case, referred to in R. v. La, where even where the Crown has met its disclosure obligations, a

Section 7breach may still be found. This is a case where evidence was created through a police initiative, installing video recording camera’s in anarea where criminal conduct might be anticipated, and area of bars and nightclubs, frequented by young people. The camera’s had thedual purpose of deterring disorderly or criminal conduct, as the camera’s reminded people they were under surveillance; and recordingevents for law enforcement purposes. Although the involvement of the Privacy Commissioner is no doubt valuable in devising a policyfocused on the individual privacy interests to govern retention of the video images, she cannot have the final say on the

Section 7 impactof deleted video recordings of an event in dispute, very likely recorded by the camera’s. The very fact that the officer says it was anerror on his

part is determinative of the relevance and disclose-ability of the lost video material. The efforts by Mr. Miniaci to obtain thevideo push the merit of this application beyond question. I am of the view that despite Detective MacDonald’s observations concerningthe unhelpful character of video recordings from camera’s at this intersection, this is material which is subject to the disclosureguidelines set out in Stinchcombe. The camera’s were set up by police at this intersection precisely to assist in maintaining public safetybecause of the frequent incidents which occur in this part of the Entertainment District.

The sweep of the camera apparently included thearea where Mr. Miniaci was being investigated in the intersection. The words of Justice Sopinka for the Supreme Court of Canada in thecase of R. v. La are apposite on this point: “as the relevance of evidence increases, so does the degree of care for its preservation that is expected of police” (quoted in R. v.Banford, para 26) [19] The defence asserted by Mr.

Miniaci requires determination of a factual issue concerning the nature of the interaction betweenhim and the investigating officers: did he stumble as he groped for his identification in his pocket, giving rise to the apprehension ofConstable Boisvert that he was about to flee, or did he attempt to push her aside and run from the officers?

Did he grab ConstableTauro’s hand as he was being placed subsequently under arrest, and resist physically as the officer described, or was the melee of thearrest, with the defendant being restrained by several officers, the event which aggravated a previous injury to Constable Tauro’s arm? In my opinion, the likelihood that the lens of the camera captured relevant evidence is significant. [20] I conclude therefore that a

Section 7 breach is made out. An aspect of fundamental justice mandates that the Crown makedisclosure of evidence it collects in order to enable the ability to make full answer and defence. The police set up these camera’s. Although the policy for retention is itself problematic, in terms of disclosure obligation, police had a practice which would have enableddisclosure of the (video recording) but for the self-characterised “mistake” of the detective on duty at the station that night. Clearly therecording was meant to be preserved and was not. The policy concerning retention is an added complication: despite Mr.

Miniaci’s bestefforts, beyond the standard which ought to be expected of newly incarcerated accused, it was impossible due to policy for theApplicant/defendant to obtain a copy of the videotape by his own efforts.

The possibility that the current retention policy was intendedfor review, presumably to comply with police obligations in relation to preserving relevant evidence and making disclosure, is evidencedby the directive of the Police Services Board to review policy in order to ensure it established a reasonabled retention period for recordedimages, having regard to investigative requirements as well as privacy concerns. This policy review mandated in 2009, has not resultedin any review of the retention period.

There appears to be a live possibility that relevant and probative evidence was lost in this case. [21] Our Court of Appeal ruled almost twenty years ago in the case of R. v. A.(D) (1992), (ON CA), 76 C.C.C. (3d)1, saying that to establish a breach, the lost evidence must not [be] trivial or frivolous or tenuous”. However, in keeping with the rulesdetermining the scope of Crown disclosure, the Applicant need not show prejudice. I am of the view that the video recording falls intothis category. I find a violation of

Section 7, as the Applicant has shown interference with his ability to make full answer and defence. [22] The test to determine a remedy of stay of proceedings is stringent however. Only in the clearest of cases may a stay be entered.

That statement, reiterated through the jurisprudence, begs the question, clear about what? I understand the clarity to be required on a number of points. Most significantly, would the missing evidence be determinative of the issues at trial? Second, is there any suggestion of bias or bad faith?

Justice Doherty puts it this way in the case of Bero : A stay is an appropriate remedy only where the breach of an accused’s s. 7 rights has caused harm to the accused’s ability to make full answer and defence that cannot be remedied, or where irreparable harm would be caused to the integrity of the justice system if the prosecution were allowed to continue. (para 42) [ 23 ] In this case, I have concluded that the video would provide assistance in determining the central factual issue.

The quality of the videotape as described by Detective MacDonald, and the possibility that the angle and focus of the equipment are not on the key events preclude a finding that this missing evidence might go to the heart of the matter. It was a different factual backdrop in the case of Bero , where a vehicle was destroyed by police before it could be tested for blood spatter. The destruction of the vehicle therefore destroyed evidence which had unique value to corroborate or undermine Bero’s defence. It is an example of evidence which undeniably would have been critical.

Even so, the remedy ordered by the Court of Appeal was a new trial, in order that the absence of evidence be considered in assessing the Crown’s case. Trial courts have ordered stays where a police policy of destruction of videotapes flew in the face of judicial ruling concerning their significance: its continued existence was considered an item which went to the integrity of the administration of justice: a systemic disregard for police and Crown duties ( Banford , para 39; see helpful review of cases in that decision).

In the case of Tremble , an appellate review of a finding that the destruction of clothing by police, without preserving it for testing, breached the scope of police duty by not considering the obligations to preserve evidence.

Justice Fragomeni, on appeal, refers to Justice Doherty’s approach in Bero and cites the following passage in support: “…the failure to preserve the vehicle was caused by the failure to loom beyond the needs of the prosecution to the wider question of the potential relevance of the vehicle to the defence..[it] reveals an ignorance of, or at least an indifference to, the duty on the Crown and the police to preserve the fruits of their investigation” (para 39) [ 24 ] In this case there is a frank admission by the officer whose responsibility it was that he made a mistake, not to preserve the evidence.

It appears he understood the obligation to preserve evidence, although it is not clear whether that was in the context of charges having been laid against an individual. This evidence is however only one piece of evidence to consider on the relevant points and there is no guarantee that it would have advanced the case on either side. There is no suggestion of any personal grudge or ill-will on this record.

I am not prepared to characterize this as the clearest of cases, in the way the jurisprudence directs me to, for the purpose of assigning the remedy of stay of proceedings. [ 25 ] Doherty JA in the case of R. v. Bero describes a lesser remedy which flows in a case such as this one. The value of the evidence would have been to shed light on the factual issue between the prosecution’s account, and that of the defence. The prosecution evidence includes only the testimony of Constable McCaw and Constable Tauro, and leaves open numerous questions on its face: did mounted officer call Mr. Miniaci over, did Mr.

Miniaci stumble against Boisvert, did she call out for his apprehension at that point, did Mr. Miniaci grab Tauro’s hand in an effort to resist arrest? Some of these points are countered by the testimony in defence; some are clarified in favour of prosecution; evidence of Boisvert is not available on this record however, and her role and observations are critical to the determination of the issues at trial. The videotape might have clarified these issues, regardless of her having testified.

As, well, to use Justice Doherty’s phrase in Bero , the trier of fact may consider the explanation of why it breached its obligation to preserve evidence.

That explanation may assist the court in “assess[ing] the overall reliability of the investigative process which produced the evidence relied on by the Crown, and [help the jury] decide the significance, if any, of the absence of evidence that may have been available had the prosecution preserved all relevant evidence. [ 26 ] Absence of evidence may be subject of comment in a trial: “a reasonable doubt may be “derived from the evidence or absence of evidence” (Doherty, JA in Bero , citing Cory J. in R. v.

Lifchus .) In a recent pronouncement our Court of Appeal expands: “… lost evidence, though not sufficiently prejudicial to justify a stay, max have warranted a lesser remedy, or at least could have been factored into the assessment of the credibility and reliability of the complainants’ evidence” ( R. v. G.S. para. 63). In this case, I am of the view that the absence of evidence, caused by the failure to preserve evidence, and ultimately resulting in a breach of

Section 7 rights, may be addressed in the context of the remedy for the breach. [ 27 ] This is not clearest of cases that evidence would be determinative. The role of the police service in both creating and destroying the evidence warrants special attention however, in considering the potential significance of the lost evidence. Presumable, given the purpose for which camera’s were placed in this intersection, and the block south, they were designed to capture relevant information which might assist investigations of events within their mechanical eye’s purview.

The central dispute in this case must be determined by weighing the credibility of the accounts given by the various witnesses, police and defence. Although Mr. Miniaci’s intoxication presents some concerns in accepting his account of events, I am not prepared to dismiss his account entirely. There are conflicts in some of the police evidence. At least one of them is resolved against his interest by Mr. Miniaci’s testimony. That inclines me to consider him a reliable witness.

There is a definite absence of critical evidence in this case, with regard to the perceptions of the police witness who allegedly was the first assault victim, and the mounted officer who must have given the initial direction to Mr. Miniaci. On Mr.

Miniaci’s account, he did not intentionally apply force to either of the foot patrol officers. The view from the surveillance camera maywell have assisted in resolving the conflict, which I am inclined to resolve in Mr. Miniaci’s favour in any event, given the test forcredibility. [28] In the result, weighing the Crown’s case, considering the defence evidence, and taking into account evidence which likely wouldhave assisted the Court but for the failure to preserve evidence, in breach of Mr. Miniaci’s

Section 7 rights, I am dismissing the assaultcharges. It follows that no breach of probation is made out, and that count fails. Released: September 12, 2011 Signed: “Justice S.R. Shamai” LIST OF CASES R. v. La (1997), (SCC), 116 C.C.C. (3d) 97 (S.C.C.) R. v. Bero (2000), (ON CA), 151 C.C.C. (3d) 545 (OCA) R. v. FCB, 2000 NSCA 35 , 2000 N.S.C.A. 35 R. v. Banford, 2010 SKPC 110 , 2010 S.K.P.C. 110 (Sask. Prov. Ct.) R. v. Wickstead (1996), (ON CA), 106 C.C.C. (3d) 385, aff’d (SCC), [1997] 1 S.C.R., 307 R. v. A(D) (1992), (ON CA), 76 C.C.C. (3d) 1 (OCA) R. v. Gaudette, [2005] O.J. No. 2399 (OCJ) R. v.

Carosella, (SCC), [1997] 1 S.C.R. 80 R. v. Tremble (2010), 2010 ONSC 2777 , 263 C.C.C. (3d) 332 (Ont. S.J.) R. v. Lifchus (1997), (SCC), 118 C.C.C. (3d) 1 (S.C.C.) R. v. G.S., 2010 ONCA 296 , [2010] O.J. No. 1666 (OCA) R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411 @ 68 R. v. Stinchcombe (1991), (SCC), 68 C.C.C. (3d) 1 (S.C.C.)