R. v. Waraich, 2021 MBPC 63

CITATION: R. v. Waraich, 2021 MBPC 63 IN THE PROVINCIAL COURT OF MANITOBA Virden Centre BETWEEN: Her Majesty the Queen ) R. Lonstrup ) for the Crown -and- ) ) Partap S. Waraich ) T. Foster, Q.C. ) for the Accused Accused ) ) ) ) Reasons for Decision ) Delivered: December 10, 2021 ) at the Town of Virden, in the ) Province of Manitoba Hewitt-Michta, P.J. INTRODUCTION [ 1 ] Evidence suggests Mr. Waraich operated a semi tractor-trailer [semi] on the Trans Canada Highway [TCH] while impaired and with a blood alcohol concentration more than triple the legal limit.

However, there are two problems with the prosecution’s case. [ 2 ] First, the Crown lost relevant video evidence despite timely requests from defence for its preservation and disclosure. The Closed Circuit Television [CCTV] evidence depicted the accused’s movements, interactions, and the sequence of events at the RCMP detachment. Confounding the loss of that evidence is a material misrepresentation by a police officer.

Before the matter got to trial, the lead investigator falsely told defence counsel there was no Closed Circuit Television [CCTV] at the RCMP detachment. [ 3 ] Second, aspects of the available evidence material to issues raised by the defence are of questionable reliability. A key crown witness was not credible and there are significant discrepancies between the evidence of that witness and two other police witnesses. [ 4 ] These two problems interconnect.

The lost evidence is key to deciphering material contradictions in the evidence, which underlie crucial reliability assessments. [ 5 ] The defence seeks a judicial stay of proceedings pursuant to Charter section 24(1) arising from the

section 7 Charter breach occasioned by the lost evidence. Alternatively, the accused seeks exclusion of evidence arising from the

section 7 breach as well as alleged

section 8 and 10 Charter violations. [ 6 ] For the reasons that follow, I find a judicial stay in respect of these proceedings is appropriate in the extraordinary circumstances of this case. VOIR DIRE EVIDENCE [ 7 ] The following is a

summary of the oral and affidavit witness evidence.

[ 8 ] A tow truck operator was stationary on the shoulder of the TCH with his emergency lights illuminated when he noticed a semi approaching from behind. He could see and hear the front wheel of the semi wobbling on and off the rumble strip. It neither slowed nor moved to the passing lane. Despite the tow truck operator’s evasive action, the semi came dangerously close as it passed. He followed the semi towards Virden and called the RCMP to report the possibly impaired driver. He further reported seeing the semi weaving back and forth on the highway.

He watched police pull the semi over. [ 9 ] Constables Blakely and Sadler attended the TCH in response to the civilian complaint. Acting on the information from dispatch and the tow truck driver’s identification of the target vehicle, they stopped the semi and identified the accused as driver and lone occupant. Both officers noted a brief delay before the driver responded to police emergency equipment by pulling over. [ 10 ] Constable Blakely spoke to the accused at the driver’s side window at about 7:00 PM. She informed him of the driving complaint. She asked for driver’s license and registration.

She noticed an odor of liquor coming from the vehicle that intensified as the accused spoke. When asked to produce license and registration, the accused passed her an iPad and fumbled with his wallet. He produced an operator’s card instead of a license and never did produce registration at roadside. She thought his speech was slow. He admitted consuming one alcoholic drink while stopped at about 5:00 PM. [ 11 ] Constable Sadler attended the passenger side for officer safety reasons after completing checks on the vehicle in his police car.

He could see into the vehicle while Constable Blakely was speaking with the accused but could not hear anything until Constable Blakely signalled him to open the passenger side door. Constable Blakely articulated her belief the accused was impaired. Constable Sadler detected an odor of liquor in the cab of the truck. He attended to the driver’s side to assist with the arrest. [ 12 ] Constable Blakely placed the accused under arrest, directing him to put on his shoes and step out of the vehicle.

Both officers said the accused was unsteady while walking to the police car but there were significant discrepancies in their evidence on the details related to this observation. [ 13 ] Constable Sadler read the accused the formal notice of arrest, Charter rights, police caution, and breath demand. When asked if he understood each, the accused responded in the affirmative. When asked if he wished to contact counsel, the accused declined saying “no”. [ 14 ] Constable Sadler drove the accused to the Virden RCMP station. He took Mr. Waraich directly to a holding room with a telephone.

The accused had red, bloodshot eyes and appeared sleepy. [ 15 ] Sometime before the accused provided breath samples, Constable Mann spoke to the accused in Punjabi. There are material discrepancies in the evidence of Constable Mann and Constable Blakely about how and why Constable Mann ended up speaking to the accused. Constable Mann asked the accused about vehicle registration documents. She confirmed he understood he was under arrest for impaired operation and could access free Legal Aid duty counsel if he wished.

He reportedly declined, indicating he would handle the matter himself. [ 16 ] Constable Robillard collected samples of breath from the accused. Before doing so, he interacted with the accused. He did not detect an odor of liquor but he spoke to the accused from a distance. He noted the accused’s face was flush; his eyes were red and bloodshot. He did not detect slurred speech.

He thought the accused seemed intoxicated, noting in particular that he used the wall to steady himself into a chair after moving from the holding room into the breath room. [ 17 ] Constable Robillard reiterated the right to counsel and the accused said he wanted to call a lawyer. Constable Blakely contacted Legal Aid duty counsel but the accused declined to speak to the lawyer on the line. The officer asked the accused if he was sure.

She did not read a “ Prosper warning ” . [ 18 ] It is unclear whether Constable Mann and / or Constable Blakely told the accused and, if so, whether he understood in the circumstances that he could speak to counsel in private. [ 19 ] Mr. Waraich provided two samples of breath measuring 270 milligrams of alcohol in 100 millilitres of blood. He spent the night in RCMP cells before police released him with the appropriate paperwork. [ 20 ] The RCMP station had operational CCTV cameras that would have recorded the accused entering the detachment; moving within the detachment; and lodged in the cell area.

It would not have depicted the accused inside the lawyer and breath rooms. That CCTV system automatically recorded over itself every 60 to 90 days (approximately). [ 21 ] On May 10, 2019 defence counsel faxed a disclosure request to crown counsel that included a request for copies of any video recordings from the RCMP detachment. The Crown misplaced that disclosure request and consequently took no action. Defence counsel faxed an identical disclosure request to the Crown on May 28, 2019.

Both communications flagged the potential need for RCMP to preserve video evidence. [ 22 ] Defence counsel received a disclosure package on May 31, 2019 that did not include the requested video evidence. [ 23 ] The Crown emailed RCMP on June 7, 13, and July 3, 2019 about the video disclosure. [ 24 ] Defence received further disclosure on July 4, 2019 but no video evidence and responded with a further disclosure request the same day. [ 25 ] On July 12, 2019, Constable Blakely advised the Crown by faxed letter “[t] here are no audio / video from the patrol vehicle nor Police station .” The Crown says it forwarded Constable Blakely’s letter to defence counsel though defence counsel asserts he did not receive it. [ 26 ] There was an email exchange about video evidence in June of 2020 as counsel prepared for trial.

Constable Blakely, apparently

responding to a question, wrote “[o]nly some of our vehicles are equipt with in car video.

The vehicles used that day didn’t have workingequipment / didn’t have any equipment that would of recorded the incident.” [27] Defence responded by email to Constable Blakely and copied to the Crown: “Can you please confirm if there is CCTV in thedetachment and, if so, if that would have created a recording?” [28] Constable Blakely responded to defence but this time did not include the Crown Attorney: “No, we don’t have CCTV.” [29] In court, Constable Blakely testified Virden RCMP detachment did have operational CCTV equipment at the relevant time.

She didnot recall receiving any disclosure requests from counsel for video evidence. She suggested civilian staff in the office could address thoserequests so the request may never have come to her. She testified that if counsel had ever asked about video evidence she would havetold them there were cameras in the detachment that would have recorded some of the accused’s movements. She did not recall everreceiving a request to preserve video. [30] When confronted with the July 12, 2019 letter and the June 12, 2020 email in cross-examination, Constable Blakely admitted sheauthored both communications.

CREDIBILITY OF WITNESSES [31] Defence counsel’s questioning implied the tow truck driver had a financial motive to report the accused’s erratic driving; that hewould get the fee for towing the impounded vehicle. This was an insinuation without merit. Cross-examination revealed there was nomention of rumble strips in the witness’ statement to police taken much closer in time to the incident than when he testified in court. Thissingle discrepancy did not cause me to doubt the accuracy of the witness’s recall.

I found the witness’ evidence compelling and am leftwith no doubt about his credibility and the reliability of his evidence. [32] Constables Morrisette and Robillard provided straightforward evidence not shaken in any material respect on cross-examination. Ifind both were credible witnesses who did their best to provide what seems to be reliable, largely uncontroversial evidence. [33] I have concerns about the reliability of Constable Mann’s evidence. She did not make timely notes about her involvement. Thereport she did prepare was made a year after the incident.

The report misstates the year the incident occurred and the time of herinteraction with the accused. Constable Blakely and Constable Mann discussed at least some of their evidence close in time to the trial,specifically errors in their notes with respect to the time of their interaction with the accused. There were inconsistencies between theevidence of Constable Mann and Constable Blakely with respect to why and how Constable Mann came to speak to the accused at theVirden detachment. [34] I have serious reservations about the credibility of Constable Blakely.

There are contradictions between her evidence and that ofother witnesses, particularly Constables Sadler and Mann.

The contradictions relate to material aspects of the case such as whether theaccused walked to the cruiser car and into the detachment on his own or whether he needed police assistance to walk and whetherConstable Blakely was even present to make some of the observations she swore she made. [35] There were internal inconsistencies in Constable Blakely’s evidence, particularly in respect of how Constable Mann came to speakto the accused and whether the officers had concerns about the accused’s English comprehension. [36] Constable Blakely’s recall of events was weak.

She could not remember and did not have notes about material aspects of theinvestigation. For example, she did not recall and made no note about communicating to Constable Sadler (the demanding officer) herroadside observations and belief the accused was impaired. She insisted she “would have” done so. She was unsure in cross-examinationwhether she gave the accused an opportunity to contact counsel because of a request from him. She was not sure whether the accusedidentified a lawyer of choice. She was not sure whether she made the decision to call Legal Aid for the accused.

She qualified manyresponses, particularly during cross-examination, with the phrase “from my memory”. [37] The most pressing concern with Constable Blakely’s credibility arises from false information she provided to counsel in the contextof disclosure inquiries about the existence of video cameras in the RCMP station. [38] I am not concerned about the credibility of Constable Sadler, but it is difficult to assess the reliability of his evidence or to makefindings of fact beyond a reasonable doubt because of the germane inconsistencies between his evidence and that of Constable Blakely. [39] Constable Blakely described the accused as unbalanced, to the point officers had to hold his arm to assist him in walking from thesemi to the police car.

Constable Blakely said the accused mis-stepped getting into the police car. Constable Sadler did not recall theaccused needing any assistance to walk. He remembered following behind the accused who walked unassisted to his police car.Constable Sadler testified the accused did not have difficulty getting into the police car and said Constable Blakely did not help theaccused into the police car. [40] Constable Sadler said Constable Blakely was not present to observe the accused’s manner of walking into the detachment and wasnot present when he searched the accused in the cell area of the detachment.

LOST EVIDENCE [41] The Crown must preserve and disclose relevant evidence [see R. v. Stinchcombe, (SCC), [1991] 3 S.C.R. 326].Where the crown fails in this regard and a

section 7 Charter breach occurs, the accused may be entitled to a remedy pursuant to section24(1) Charter. [42] The Supreme Court of Canada decisions in R. v. La (SCC), [1997] 2 S.C.R. 680 (lost evidence) and R. v.Bjelland 2009 SCC 38 (late disclosure) as well as the Ontario Court of Appeal decision in R. v. Bero are instructive.When relevant evidence is lost, the Crown must provide an explanation. When assessing that explanation, the Court considers the

circumstances surrounding the loss, particularly whether police took reasonable steps to preserve the evidence. The Court should assessthe apparent relevance of the evidence at the time it was lost. The more relevant the evidence, the greater the obligation to preserve thatevidence. [43] If the Crown’s explanation is unsatisfactory or the evidence discloses an abuse of process by the Crown, there is a breach of theaccused’s

section 7 Charter rights. Deliberate destruction of relevant evidence to circumvent disclosure obligations constitutes abuse ofprocess but unacceptable negligence may suffice in some circumstances. [44] A judicial stay is an extraordinary remedy reserved for the clearest of cases where no lesser remedy will suffice. Society has aninterest in adjudication of cases on their merits with a view to ascertaining the truth. A judicial stay deprives society of the properadjudication of a criminal complaint.

The appropriateness of a judicial stay or any lesser remedy depends on the impact of the abuse ofprocess or other prejudice on trial fairness. The Court stays proceedings where the breach renders the trial unfair and a lesser remedy isinsufficient to cure the unfairness or where a stay is necessary to maintain the integrity of the justice system. ANALYSIS Relevance of the Lost Evidence [45] The threshold for relevancy is low and includes “any information in respect of which there is a reasonable possibility that it mayassist the accused in the exercise of the right to make full answer and defence.” [R. v.

McNeil 2009 SCC 3 , [2009] 1 S.C.R. 66at para. 14] [46] By way of explanation, the Crown submits the lost video evidence was of little perceived relevance to the police investigation.While the Crown led no evidence about the purpose of the CCTV equipment in the detachment, it points to evidence presented in R. v.Backe-Peters 2012 MBPC 13, to the effect that such video equipment is a security feature in an RCMP detachment, not an investigativeor evidence-gathering tool. [47] Certainly in the case at bar, as in Backe-Peters, there is evidence that the CCTV cameras did not cover the breath testing room orthe lawyer room.

However, the present case is distinguishable from Backe-Peters in several respects related to relevance: • Unlike Backe-Peters, defence counsel here made numerous timely requests for preservation and disclosure of the time-sensitivedetachment video evidence, which alerted crown and police to a perceived relevance on the part of defence. • The CCTV cameras in the present case captured more of the accused’s movements than in Backe-Peters, specifically the accusedentering the detachment. • Unlike the present case, there were no identified concerns with the reliability of the Crown witness evidence in the Backe-Peterscase. [48] The first two distinctions are pertinent to the perceived relevance of the video evidence at the time of its loss while the thirddifference pertains to relevance of the evidence following its loss in the context of the trial. [49] Police charged the accused with alcohol-related driving offences.

Balance, coordination, and manner of walk are typicalconsiderations when assessing grounds for arrest and issuance of a breath demand as well as indicia and level of impairment.Investigators at roadside made observations about the accused’s manner of walk following his arrest for impaired driving. No doubt, theCrown would seek to rely on evidence related to the accused’s balance, coordination, and manner of walk both at the roadside and at thedetachment in its argument for conviction on the impaired driving charge. Video evidence is highly reliable, independent evidence.

Avideo depicting the accused’s balance, coordination, and manner of walk at the detachment close in time to his arrest at roadside mightreasonably assist the accused in the exercise of his right to make full answer and defence. [50] Defence counsel diligently pursued preservation and disclosure of the detachment video. Defence counsel will typically be in thebest position to assess what evidence might assist in the accused’s exercise of his right to make full answer and defence.

Havingpresumably consulted with the accused and agreed to act on his behalf, defence counsel requested disclosure including the videoevidence. After receiving other disclosure information, the defence persisted in its request for the video evidence. These actions clearlycommunicated to the Crown and police a perception the video evidence was valuable evidence from the defence perspective. [51] The defence disclosure requests substantially increased the perceived relevance of the evidence and triggered, at minimum, a clearobligation to preserve the video evidence.

In fact, the Crown Attorney acknowledged that obligation when he requested police preservethe video. Unacceptable Negligence [52] The Crown argues it made reasonable, albeit unsuccessful, efforts to preserve the video evidence. The Crown attributes the loss ofevidence to unfortunate inadvertence arising from human frailty, denying what happened in this case amounts to unacceptable negligenceor abuse of process. I disagree. [53] Defence first sought disclosure of the video evidence one week after the incident.

There was a 29-day delay between the firstdefence disclosure request and the Crown’s first request to police on June 7, 2019 about preserving the video evidence. The Crown’soffice misplaced the first defence request and there was a weeklong delay before reaching out to police following receipt of the seconddefence request.

Assessing the reasonableness of the delay, I am mindful of the estimated 60 to 90 day shelf life of the CCTV evidence.While the Crown attached a due date for other items of disclosure, it addressed the video evidence in a separate email and did not specifya due date. [54] Continuing into July, defence made further requests of the Crown and the Crown made further inquiries with the RCMP. Finally,

on July 12, 2019 Constable Blakely faxed a letter to the Crown. She reported there was no video from the police station. [55] The evidence concerning Constable Blakely’s July 12, 2019 letter is sparse, by which I mean there is no explanation. At best, theresponse is not fulsome. Perhaps she meant video evidence did not exist because it was already lost. At worst, her letter was dishonest,intended to mislead about the presence of video cameras in the detachment. Counsel did not ask and the witness did not explain.

Shetestified she did not remember being asked about detachment video and said if she had ever been asked she would have confirmed theexistence of video cameras in the detachment. There is no evidence as to what, if any, steps the officer took to ascertain whether therewas a video recording from the detachment and, if so, whether it still existed on July 12, 2019. [56] As the matter moved closer to a trial date, defence renewed its inquiries about video evidence. During an email exchange in Juneof 2020, Constable Blakely told defence counsel there was no CCTV in Virden detachment.

The evidence concerning this email issimilarly sparse, by which I mean there is no explanation for the officer’s misrepresentation. It is difficult to fathom an innocentjustification. The Crown suggested the officer simply meant there was no available video evidence. I find that

interpretationunreasonable. The question put to the officer specifically asked if there was CCTV in the detachment that would have created arecording. [57] Adding to my concern about the officer’s intentions is her failure to copy the Crown on her response. The Crown was included upto that point in the email exchange. Counsel did not ask the witness for an explanation and she did not offer one. When confronted withthe email, she acknowledged she wrote it.

Earlier evidence confirmed she knew the police station had operational CCTV equipment atthe relevant time. [58] I find the Crown (which includes police) did not take reasonable steps to preserve the detachment video. The Crown’s explanationfor the lost evidence is unsatisfactory.

The failure here is not attributable to momentary human frailty or error but rather a sequence oferrors by Crown and police, including misinformation from the investigating officer to counsel, at a time when it is unclear whether thevideo evidence still existed. [59] There is no explanation for misinformation provided to counsel by the officer on July 12, 2019. There is no evidence the officertook steps to ascertain the availability of the video evidence. There is evidence the officer misapprehended the time limit applicable toCCTV recordings.

She initially testified to a belief the system recorded over itself every 30 days and only after further inquiry mid-trialdid counsel determine the shelf life was typically 60 to 90 days. [60] Failure to preserve and disclose the detachment video was the result of unacceptable negligence. Abuse of Process [61] Compounding this unacceptable negligence is an apparent abuse of process by the investigating officer long after the evidence wasactually lost.

The reasonable inference arising from Constable Blakely’s June 12, 2020 email denying the presence of CCTV in thedetachment is that she intended to mislead defence counsel and conceal the lost evidence issue. [62] An abuse of process that renders a trial unfair or that residually undermines the integrity of the judicial system may on its ownresult in a stay of the proceedings. [See R. v. Regan, 2002 SCC 12 , [2002] 1 S.C.R. 297; R. v. O’Connor, (SCC), [1995] 4 SCR 411] [63] Dishonesty on the part of a police officer is obviously unacceptable.

Such conduct is a threat to the administration of justice.However, not every abuse of process attracts the extraordinary remedy of a stay of proceedings. The Supreme Court of Canada’s decisionin R. v. Babos, 2014 SCC 16 , [2014] 1 S.C.R. 309 is instructive. I do not intend to engage in an exhaustive analysis of thatdecision or of this aspect of the case. The officer’s misrepresentation is serious misconduct but on its own, it did not render the accused’strial unfair. [64] There is an alternative remedy capable of redressing any prejudice arising from the abuse of process.

The falsehood came to light intime for counsel to apply for Charter relief arising from the lost evidence and in time for the Court to consider the misrepresentation inits assessment of the officer’s credibility. That redress is sufficient in the particular circumstances of this case. Prejudice [65] The lost video evidence prejudices the accused’s right to make full answer and defence in at least two respects. [66] First, there is a material contradiction in the evidence of Constables Blakely and Sadler as to the accused’s coordination, balance,and manner of walk.

The accused’s manner of walk is an important indicia with respect to impairment and therefore relevant to theimpaired driving charge. The lost video evidence would have depicted his manner of walk at the detachment proximate in time to hisarrest at the roadside. [67] Second, and more importantly, the credibility of lead investigator Constable Blakely is a crucial issue in respect of both chargesand specifically in respect of the

section 8 and 10 Charter arguments advanced by the defence. Concerns with the reliability of herevidence and with her credibility are apparent. The officer gave detailed evidence as to her observations of the accused walking into thedetachment. Constable Sadler testified she was not with him when he walked the accused into the detachment and took him to the lawyerroom.

The lost video would have established whether the officer was present when the accused arrived, entered, and moved through thedetachment to the lawyer room. [68] Demonstrating the officer could not possibly have made the observations she swore she made would significantly undermine theofficer’s credibility. While there is some evidence already undermining Constable Blakely’s evidence in this regard, video evidence ishighly reliable, independent proof of whatever it depicts. [69] A judicial stay is an extraordinary remedy reserved for the clearest of cases. This is so because of society’s interest in the truth-

seeking function of the trial court and in adjudication of cases on their merits. In the unusual circumstances of this case, however, the lost evidence not only prejudices the accused’s right to a fair trial but also deprives the Court of its ability to seek the truth and appropriately adjudicate the case on its merits. [ 70 ] Constable Blakely and Constable Sadler contradicted one another in material respects. The Court has concerns with the credibility of Constable Blakely’s evidence – it is difficult to accept her evidence without corroboration.

Some of Constable Sadler’s evidence is contradicted by Constable Blakely’s evidence and therefore of questionable reliability. The lost video evidence is germane to an assessment of the reliability of their evidence where it contradicts but it is also relevant to ascertaining whether the recollection of either officer is trustworthy in a more general sense. The reliability of their evidence is crucial to the Court’s ability to make findings of fact particularly on matters related to the alleged

section 8 and 10 Charter violations. [ 71 ] The lost evidence would not likely have cured all the reliability deficits in the Crown’s case but it would have assisted the Court in addressing contradictions in the evidence and better assessing the reliability and credibility of important witnesses. [ 72 ] I am unable to identify any remedy short of a stay of proceedings that sufficiently redresses the prejudice occasioned by the loss of evidence arising from unsatisfactorily explained, unacceptable negligence on the part of the Crown.

CONCLUSION [ 73 ] This Court stays proceedings against the accused on the charges of operating a motor vehicle while impaired and with a blood alcohol concentration in excess of the legal limit. “original signed by Judge Hewitt-Michta” Judge S. Hewitt-Michta