Her Majesty the Queen - v. -, 2011 SKPC 88

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2011 SKPC 088 Date: June 20, 2011 Information: 24296548 Location: Estevan _____________________________________________________________________________ Between: Her Majesty the Queen - and - Iurii Akinchets Appearing: D. Mitchell Crumley For the Crown Lori Dunford and Joelle Graham For the Accused INTERIM RULING ON DISCLOSURE APPLICATION J. KALMAKOFF , J [ 1 ] Iurii Akinchets is charged with impaired driving, and driving while over .08, contrary to the Criminal Code , and failing to notify a property owner of damage, contrary to The Traffic Safety Act .

The offences are alleged to have occurred in Estevan on September 19, 2009. [ 2 ] At issue on this application is whether the Crown has failed to meet its disclosure obligations, and if so, what remedy is appropriate and just.

[3] The defence alleges the following breaches of the Crown’s disclosure obligation: (1) failing to disclose in-car videos from the police cars and photographs of the accused’s vehicle in a timely fashion; (2) failing to provide adequate disclosure of the evidence of Cst. Handley, and failing to provide disclosure of the evidence of Cst.Lonsberry in a timely fashion; (3) failing or refusing to disclose copies of training manuals and Sgt.

Reed’s training certificates relating to field sobriety testing; and (4) failing or refusing to disclose, and/or failing to properly preserve recordings of police radio and telephone communications. [4] In addition, the defence alleges that the Crown has failed in general to respond to disclosure requests in a timely fashion. Background: [5] Mr. Akinchets was arrested and charged on September 19, 2009. Defence counsel sent a letter to the Estevan Police Service,requesting disclosure, on September 30, 2009.

Among other things, that letter requested copies of the notes of all police officers whohad dealings with the accused, copies of any video images of the accused (including in-car videos), copies of all relevant policecommunications (including 911 communications), and copies of all photographs taken at the scene of the incident. A disclosure packagewas prepared, and sent to defence counsel, on October 6, 2009. The matter was then adjourned a number of times before a plea wasentered.

Eventually, a trial date of January 27, 2011 was fixed. [6] By letters dated November 30 and December 14, 2010, and January 5, 2011, defence counsel made additional, morespecific requests for disclosure. No responses were received to those letters, and the items requested were not provided.

On January 13,2011, defence counsel served a Charter notice on the Crown alleging, among other things, breaches of the accused’s rights under section7 of the Charter, based on the Crown’s failure to provide complete disclosure. [7] On January 27, 2011, the trial could not proceed, because the interpreter arranged by the Court did not attend. The Crownwas given direction at that time to provide a response to the defence requests for disclosure no later than March 11, 2011. The trial wasadjourned to May 3, 2011, at which time evidence was led on the disclosure application.

Legal Principles: [8] In a criminal prosecution, the Crown has an obligation to disclose all relevant non-privileged material in its possession. Material is relevant, giving rise to the Crown’s disclosure obligation, whenever there is a reasonable possibility that the information itcontains will be useful to the accused in making full answer and defence. This also gives rise to a corresponding constitutional right ofthe accused person to receive disclosure. (See R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326; R. v. Chaplin, (SCC), [1995] 1 S.C.R. 727; R. v.

Upshaw, 2006 SKCA 124.) [9] The right to disclosure is a component of the right to make full answer and defence, contained within

section 7 of theCharter. Where breach of a Charter right is alleged, the onus is on the accused to establish the breach on a balance of probabilities. InR. v. Carosella, (SCC), [1997] 1 S.C.R. 80, the majority held that a breach of the Crown’s disclosure obligation is aviolation of the accused’s

section 7 rights, whether or not any actual or additional prejudice results from the failure to disclose. Thequestion of prejudice is relevant only as it relates to determining the appropriate remedy for breach. [10] Therefore, I must first determine whether there was a breach of the Crown’s obligation to disclose. If there was such abreach, then I must consider the appropriate remedy under section 24(1) of the Charter. [11] At the trial stage, if the disclosure obligation has been breached and the undisclosed material is still available, an order for

disclosure of the material, along with an adjournment, is generally the appropriate remedy (R. v. Upshaw, supra, at paragraph 11). [12] Where non-disclosure by the Crown is flagrant and unjustified, the additional remedy of costs may be appropriate (R. v.974649 Ontario Inc., 2001 SCC 81 , [2001] 3 S.C.R. 575). Exclusion of evidence may also be an appropriate remedy in somecircumstances (R. v.

Bjelland, 2009 SCC 38 , [2009] 2 S.C.R. 651). [13] A stay of proceedings is a remedy of last resort, to be used only in the clearest of cases involving breaches of Charter rights,where no other remedy is capable of removing the prejudice to the accused, or where irreparable harm would be caused to the integrity ofthe judicial system if the prosecution were allowed to continue (R. v. O’Connor, (SCC), [1995] 4 S.C.R. 411; R. v.Regan, [2002] 2 S.C.R. 197; R. v. Carosella, supra). Application to this case:

(1) Failure to provide in-car videos from the patrol cars and photographs of the accused’s vehicle in a timely fashion. [14] The evidence before me is that in-car video from the police cars never existed in this case, so there was nothing to disclose inthat respect. The in-car videos had been requested in the initial disclosure letter, but the Crown did not respond to this request until thefirst date set for trial, January 27, 2011, at which time they told the Court and defence counsel that no such videos existed.

That in-courtresponse was sufficient to discharge the Crown’s disclosure responsibility with respect to this item. The defence argument that theCrown was required to provide a written response from an officer of the Estevan Police Service regarding the non-existence of the in-carvideos so that the officer could, if necessary, be cross-examined on it, is completely without merit. [15] That said, the Crown could - and should - have provided defence with an answer regarding the non-existence of the in-carvideos much sooner than it actually did.

While, ultimately, this lack of an answer did not negatively impact the ability of the accused tomake full answer and defence in this case, it is troubling that it took nearly 16 months for the Crown to provide that response. This wasdespite the fact that, in addition to the initial disclosure request of September 30, 2009, defence made pointed requests for thisinformation on November 30, 2010; December 14, 2010; January 5, 2011; and in the Charter notice of January 13, 2011. [16] The photographs in question were clearly relevant, and were requested in the initial disclosure letter of September 30,2009.

Reference to photographs was again made in the letter of November 30, 2010. Eventually, the photographs were disclosed onApril 26, 2011. Although in the context of how this case has unfolded, the late disclosure of these items has not negatively affected theability of the accused to make full answer and defence, it is troubling that disclosure of these photographs did not occur until the eve ofthe second date set for trial, especially since the Crown had them from the outset, and the defence had made specific requests for them,from the outset.

I am satisfied that the Crown failed to provide timely disclosure of the photographs. [17] Delayed disclosure, in and of itself, is not grounds for a stay (R. v. Dias, 2010 ABCA 382), but is a factor the Court canconsider in determining the appropriate remedy for breach of the Crown’s disclosure obligations.

(2) Disclosure of the evidence of Csts. Handley and Lonsberry. [18] The Crown disclosed a “can-say” statement regarding Cst. Lonsberry’s evidence to the defence on April 26, 2011. Cst.Lonsberry had only minor involvement in the investigation of the Criminal Code charges, but was significantly involved in theinvestigation of the charge under The Traffic Safety Act. He made no notes of his involvement, and prepared no other report. Prior toApril 26, 2011, there had been no disclosure made regarding Cst. Lonsberry’s potential evidence. While the Crown has now disclosedCst.

Lonsberry’s evidence, the defence takes issue with the lateness of that disclosure. [19] The defence also alleges that the Crown has failed to adequately disclose the evidence of Cst. Handley. Cst. Lonsberry’s

“can-say” made reference to Cst. Handley’s involvement in the investigation, but Cst. Handley did not prepare a report or

summary ofany kind, and did not make any handwritten notes. [20] Cst. Handley had only minor and peripheral involvement in the investigation. There is no evidence that he had any directcontact with Mr. Akinchets; in fact, all the evidence suggests he did not. The Crown does not intend to call Cst. Handley as a witness atthe trial. In spite of that, I am of the view that, if Cst. Handley had written a report, made notes, or prepared a

summary, it would meetthe test of relevance to require that it be disclosed. However, he did not, so the disclosure requested with respect to Cst. Handley does notexist. The question is whether the Court has authority to require the Crown to create material to be disclosed, as opposed to ordering thedisclosure of material that already exists. [21] As a general statement, the Crown only has a duty to disclose items that exist; failing to produce that which does not exist isnot a breach of the Charter. (See R. v. Dias, supra; R. v. Stinchcombe (#2), (SCC), [1995] 1 S.C.R. 754; R. v.

Chaplin,supra.) [22] Defence counsel has referred to R. v. England, 2000 ABPC 153, and R. v. Unterschute, 2002 YTKC 93, as cases which standfor the proposition that the Crown has an obligation to ensure that police officers create reports or can-say statements for disclosure ifthey do not exist. In those cases, the Courts held that evidence of police officers is different from evidence of other witnesses.

Inessence, as noted in Unterschute, “evidence in the hands of the police...is evidence in the hands of the Crown”, and even if an officerwho might have relevant evidence to give did not prepare a report, take notes, or in any other way record his or her observations, theCrown has a duty to have the officer create some sort of document outlining his or her evidence so that it can be disclosed to the defence,and used in cross-examination. [23] The decisions in England and Unterschute are not binding on me, and I am of the view that they are distinguishable.

In eachof those cases, the officer in question was one whom the Crown intended to call as a witness, and one who would be giving evidence ona key issue in the trial. That is not the case with respect to Cst. Handley. [24] Also distinguishable, in my view, is the decision in R. v. Bidyk, 2003 SKPC 124, where it was held that the Crown wasrequired to transcribe officers’ notes that already existed, but were illegible, in order to meet the disclosure obligation. [25] This case is different. Cst. Handley never made any notes.

His involvement in the investigation was only minor andperipheral, and the Crown does not intend to call him as a witness. [26] Ideally, one would expect a police officer who is involved in any investigation to prepare a report or keep detailed notes ofrelevant observations, but the reality is that it does not always happen. Sometimes, the reason is that the officer had little or nothing todo with the investigation, and therefore decides not to write a report or make notes. [27] The mere fact that a police officer failed to make notes or write a report does not amount to a Charter violation.

In R. v.Korski, 2007 MBQB 185, the Manitoba Court of Queen’s Bench rejected the notion that the police have an obligation to collect evidencein a certain way or create material for disclosure. While the failure by an officer who was involved in an investigation to take notes ormake recordings calls into question the adequacy of the investigation, and may ultimately lead to the failure of the prosecution, theaccused does not have a free-standing constitutional right to an adequate investigation of the charges against him.

Such inadequacies donot, in and of themselves, constitute a denial of the right to make full answer and defence (R. v. Darwish, 2010 ONCA 124, leave toappeal to SCC denied 258 C.C.C. (3d) iv; R. v. Barnes, 2009 ONCA 432). [28] The “can-say” statement prepared by Cst. Lonsberry makes reference to Cst. Handley’s presence and involvement in theinvestigation. Although it was not detailed, and obviously not authored by Cst. Handley, it disclosed Cst. Handley’s involvement in thecase. The important element of disclosure is the information, not the form in which it is provided (R. v. Stinchcombe (#2), supra).

Thereis no authority for the suggestion that police reports, notes, or witness statements are required to detail absolutely everything a potentialwitness knows about an incident, or address every question imaginable. Such a requirement would be impossible to meet, and it cannotbe the standard for disclosure.

[29] Furthermore, the Crown retains a discretion over the manner of disclosure, and is not required to provide disclosure in thespecific format desired by the defence, so long as it provides the relevant information (R. v. O.(W.A.) (2001), 2001 SKCA 64 ,207 Sask. R. 208 (C.A.); R. v. Burns, 2010 SKPC 6). The defence is entitled to disclosure which informs the accused of the case he hasto meet.

The defence is not entitled to perfect disclosure, or material which most easily facilitates use in cross-examination. [30] I am not satisfied that the Crown has failed to meet its disclosure obligation with respect to the evidence of Cst. Handley, atleast in terms of the form and content of the information provided. [31] However, the disclosure material relating to both Csts. Lonsberry and Handley was not provided to the defence until April 26,2011. This was despite the fact that the charges were laid in early October of 2009, nearly 19 months previous.

This was also despitethe fact that, in addition to the original disclosure letter of September 30, 2009, further detailed requests were sent for disclosure onNovember 30, 2010; December 14, 2010; January 5, 2011; and the Charter notice filed January 13, 2011, with no response. Then, onJanuary 27, 2011, the Crown was prepared to proceed to trial, intending to call Cst. Lonsberry as a witness, without having made anydisclosure of his potential evidence, or that of Cst. Handley.

After that, despite being directed by the Court to provide such disclosure byMarch 11, 2011, the Crown did not do so until April 26, 2011, one week prior to the second trial date. [32] I am satisfied that the Crown has failed in its obligation to provide timely disclosure of the evidence of Csts. Lonsberry andHandley. On the evidence before me, it is unclear whether this delay in disclosure has prejudiced the ability of the accused to make fullanswer and defence. In some cases, delayed disclosure has no effect on the ability of the accused to make full answer and defence.

Inother cases, it may be highly prejudicial, especially where important evidence or information that would have been available if there hadbeen timely disclosure becomes unavailable due to the passage of time. Delays in disclosure, like delays for other reasons, can alsoaffect the quality of the evidence, or lead to extra legal costs for an accused person, both of which may in turn affect the ability toproperly and adequately defend the case.

For those reasons, I am troubled by the lack of attention paid by the Crown to providing atimely response to disclosure requests, and also the lack of attention paid to the direction of the Court.

(3) Copies of Sgt. Reed’s manuals and/or training certificates regarding field sobriety testing, including the nystagmus test. [33] The defence requested that the Crown provide copies of training manuals and Sgt. Reed’s training certificates relating to the“nystagmus” test performed on Mr. Akinchets. [34] “Nystagmus” refers to horizontal gaze nystagmus, or involuntary jerky movements of the eyeball which occur when one triesto gaze to the side, and the muscles controlling the eye become overloaded. Horizontal gaze nystagmus is something that may beaffected by the consumption of alcohol or drugs.

Accordingly, police officers trained in field sobriety testing and drug recognitionreceive instruction in assessing horizontal gaze nystagmus. [35] According to Sgt. Reed’s testimony on this application, he conducted horizontal gaze nystagmus tests on Mr. Akinchetsduring the observation period while waiting for the intoxilyzer to be prepared for use, as a means of filling time.

The test does notinvolve any physical contact, as I understand it, and there is no evidence that it is intrusive, painful, physically demanding, dangerous, orin any way demeaning. [36] Generally speaking, police training material is not relevant, and therefore not subject to disclosure, as the issue is what theofficer actually did in the case being tried, not what officers are generally trained to do. (See R. v. Carmichael, 2011 SKPC 60; R. v.Pangman, [2000] M.J. No. 318 (Q.B.); R. v. Ferrari, [2001] S.J. No. 431 (Q.B.); R. v. Ngo, [2006] M.J. No. 348.) [37] The evidence before me is that Sgt.

Reed did not intend - and was not qualified - to give expert evidence regarding horizontalgaze nystagmus and its significance in relation to impairment of ability to drive. He could not give admissible opinion evidence in thisarea, either in direct examination or in cross-examination. The horizontal gaze nystagmus test did not factor in Sgt. Reed’s decision toarrest Mr. Akinchets or make a breath test demand, as those decisions were made long before the horizontal gaze nystagmus testoccurred. [38] Accordingly, the training manuals and certificates are irrelevant, and not subject to disclosure.

[39] In addition, it is likely that any training manuals would be considered third party records, which would necessitate anO’Connor application. [40] Furthermore, I am aware of no authority for the suggestion that the Crown has an obligation to disclose material to thedefence in order to assist in formulating questions for cross-examination in a witness’ area of expertise. [41] No breach of the Crown’s disclosure obligation in respect to this item has been established.

(4) Failure to preserve and disclose recordings of police radio and telephone communications. [42] The duty to disclose includes the duty to preserve relevant evidence (R. v. Egger, (SCC), [1993] 2 S.C.R. 451;R. v. La, (SCC), [1997] 2 S.C.R. 680). [43] Where relevant evidence which was once in the Crown’s possession is lost or destroyed, and thus no longer available fordisclosure, the Crown is required to explain its absence. Where the Crown’s explanation satisfies the trial judge that the evidence has notbeen destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.

Where the Crown is unable tosatisfy the judge in this regard, it has failed to meet its disclosure obligations, and there is a breach of s. 7 of the Charter. (See R. v.

La,supra, paragraph 20.) The remedy for such a breach will depend on a number of factors, including whether the failure to disclose theevidence has an effect on the ability of the accused to make full answer and defence, and whether the conduct of the Crown in failing todisclose violated fundamental principles underlying the community’s sense of decency and fair play and caused prejudice to the integrityof the judicial system. [44] Even where the Crown has satisfactorily explained the circumstances surrounding the loss of missing evidence, in theextraordinary situation where the loss of that evidence is so prejudicial to the right to make full answer and defence that it impairs theability of the accused to receive a fair trial, a stay may be the appropriate remedy (R. v.

La, supra; R. v. Banford, 2010 SKPC 110; R. v.Sheng (2010), 2010 ONCA 296 , 254 C.C.C. (3d) 153 (Ont. C.A.)). [45] A number of communications involving the Estevan Police Service were recorded in connection with the investigation of theincident which led to charges being laid against Mr. Akinchets.

They include: - the telephone call which reported the accident and fail to remain complaint; - the corresponding dispatch call to police officers; and - radio communications between officers and dispatch. [46] All of these items were once in the Crown’s possession, as they were automatically electronically recorded on a digitalrecording system employed by the Estevan Police Service. The recordings no longer exist.

According to the evidence before me, suchrecordings are not retained for a specified period of time; the length of time they remain on the system is a function of the storagecapacity of the system and the volume of calls received. As new recordings are made, the oldest recordings on the system areautomatically deleted. According to the testimony of Sgt.

Reed, recordings such as the ones in issue in this case would likely haveremained on the system for in excess of a year, but he cannot say with precision when they would have been purged. [47] In considering whether loss or destruction of evidence has been adequately explained, the comments of Sopinka J. in R. v. La,are instructive. At paragraph 21, he wrote: In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the

loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable.

But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. [ 48 ] Sgt. Reed acknowledged that he took no positive action to ensure that the relevant telephone and radio communications in this case were preserved. [ 49 ] The radio dispatch communication to Sgt. Reed would have provided some information regarding a complaint of a vehicle failing to remain at an accident, but it is noteworthy that, according to the evidence before me, Sgt.

Reed was already pursuing the accused’s vehicle, and already had a valid reason to stop it (the very obvious damage to the front bumper) before receiving the dispatch call. The other radio communications in this case involved simple communication of police code numbers for actions like “clearing the scene”, “subject in the car”, “subject under arrest”, or “suspected impaired driver”, and no further details.

The recordings of these communications would identify the time at which the communications were made, which is significant, because time is always a factor of some importance in cases involving drinking and driving offences and breath samples.

Therefore, the radio and dispatch communications were potentially relevant in this case, as there was a reasonable possibility that they would be useful to the accused in making full answer and defence. [ 50 ] While the police are not obliged to record such communications, recording them may give rise to a corresponding duty to preserve the recordings, and disclose them upon request. In September of 2009, the Estevan Police Service was not in the practice of routinely disclosing radio communications between officers and dispatch, and Sgt.

Reed did not take the initial disclosure request of September 30, 2009 as a request for such recordings. [ 51 ] In general terms, police radio and dispatch communications are not recorded for evidentiary purposes, and are not intended for use in that capacity. There is a limited amount of information conveyed in such communications. That does not mean they are necessarily irrelevant, but it is understandable that they would not be perceived by the police as relevant.

Given the practice in place at the time, and the limited amount of information conveyed in the communications, it is understandable that when the initial disclosure request was received, the police would not have considered disclosure of the dispatch recordings and radio communications to be necessary, and that no special efforts would be made to preserve those recordings. [ 52 ] Most importantly, however, I can infer from the evidence that the relevant information that would have been contained in these recordings was disclosed in another form, that being the report of Sgt. Reed.

I am satisfied that the loss of recordings of radio communications between the officers and dispatch in this case has been adequately explained by the Crown, and in the circumstances of this case does not constitute a breach of the duty to disclose. [ 53 ] The same cannot be said of the recorded telephone complaint to police. That was clearly relevant, and would have been something ordinarily disclosed, even in September of 2009. Yet, it was not disclosed, and no steps were taken to preserve it. Sgt.

Reed acknowledged in his testimony that the initial request for disclosure requested 911 recordings, which in essence are the same thing as the initial telephone complaint to the Estevan Police Service. Sgt. Reed further acknowledged that even after receiving the more directed disclosure letters which began arriving on November 30, 2010, he took no positive steps to determine if the recordings requested still existed, or to preserve them if they did.

He also stated that, as of April 26, 2011, when he finally responded to the defence disclosure requests, he was virtually certain that the recordings no longer existed. [ 54 ] The initial telephone complaint to the police would have contained relevant information, both with respect to the charge under The Traffic Safety Act , and the charges under the Criminal Code .

It may have contained information relevant to such issues as identity of the vehicle and/or driver, circumstances of the collision, time of driving, grounds for a breath test demand, and even possibly the issue of impaired ability to drive, and would have affected the dispatch information sent out to police officers.

Given that this call was recorded, and relevant, there was a duty on the Crown to preserve and disclose it upon request. [ 55 ] If there ever was any doubt about what the defence was seeking by way of disclosure, that doubt was erased by November of 2010, when it was made clear that the initial telephone complaint, along with the remaining dispatch and radio communications were an issue. Knowing that defence was seeking this disclosure, the police and/or Crown did not respond to the requests, and failed to take

adequate steps to preserve the evidence. [ 56 ] The Crown’s explanation in this case does not satisfy me that the evidence has not been destroyed or lost owing to unacceptable negligence. I am satisfied that there has been a breach of the Crown’s disclosure obligation with respect to the electronic recording of the initial telephone complaint to police. Conclusion: [ 57 ] I am satisfied that there have been breaches of the Crown’s disclosure obligation in this case. They are as follows:

(1) A general failure to respond in a timely fashion to requests for disclosure, including late disclosure of photographs, and late disclosure of the evidence of Csts. Handley and Lonsberry;

(2) Loss or destruction of relevant evidence due to unacceptable negligence; namely failure to locate and disclose - or at least preserve - recordings of the initial telephone complaint to police. [ 58 ] Having concluded that there were breaches of the Crown’s disclosure obligation, I must now consider the appropriate remedy.

Given the findings I have made, it now seems clear that the remedy of an adjournment and a disclosure order is not appropriate, as the Crown has now provided all relevant disclosure, with the exception of those things which no longer exist. [ 59 ] In written submissions, the Crown requested the opportunity to make additional argument regarding the appropriate remedy once a determination was made as to whether or not a breach of the disclosure obligation was established. [ 60 ] While I am concerned about the length of time this matter has taken to reach this stage, I am of the view that the approach the Crown suggests is appropriate.

I say this, because any remedy must be tailored to breaches that I have found. The initial application by defence left open a wide range of possible findings as to whether, and to what extent, the Crown had breached its disclosure obligations. Until that determination was made, it would be difficult to focus submissions on an appropriate remedy. [ 61 ] Having now made findings regarding the breach, it is in my view appropriate to give both the Crown and defence the opportunity to make further submissions, armed with that knowledge, regarding the appropriate remedy. I will now hear from counsel in that respect. J.

Kalmakoff, J