R. v. Tjernstrom Date:, 2016 BCPC 8

Citation: R. v. Tjernstrom Date: 20160125 2016 BCPC 0008 File No: 42234-1 Registry: Penticton IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. R. TJERNSTROM REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE G.W. KOTURBASH Counsel for the Crown: John Swanson Counsel for the Defendant: Tom Engel Place of Hearing: Penticton , B.C. Date of Hearing: November 19, December 3 & 4, 2015 Date of Judgment: January 25, 2016

Introduction [ 1 ] Mr. Tjernstrom is charged that on March 22, 2014, in Princeton he obstructed constables Shiell and Oliver in the execution of their duties, and further in the course of doing so, assaulted Cst. Shiell. [ 2 ] During an impaired driving investigation, Mr. Tjernstrom was physically detained by the officers. A struggle ensued. The Crown alleges that during the struggle Mr. Tjernstrom punched Cst. Shiell. Mr. Tjernstrom, on the other hand, claims that the police were not acting in the lawful execution of their duties, and as such he was justified in resisting their force.

He also denies punching or attempting to punch Cst. Shiell. [ 3 ] Mr. Tjernstrom alleges a number of breaches of his rights under the Charter . The trial proceeded in an omnibus style voir dire . Both counsel agreed that if I did not grant a stay based on the alleged infringements, the evidence given on the voir dire, aside from any evidence excluded as a result of any Charter infringements, was to be applied to the case in chief. Conclusion [ 4 ] After reviewing all of the evidence, I concluded that the Crown breached Mr.

Tjernstrom’s right to full disclosure, and the only remedy available in the circumstances is a stay of proceedings. Issues 1. Were Mr. Tjernstrom’s right pursuant to sections 7 and 11(

d) of the Charter impugned by the failure of the police to collect and preserve evidence? 2. If yes, what is the appropriate remedy? Fact Finding Analysis [ 5 ] At approximately 3:00 a.m., Cst. Shiell decided to check a truck parked and running in school parking lot. [ 6 ] Mr. Tjernstrom was in the driver’s seat and a female friend in the passenger seat. [ 7 ] Cst. Shiell smelled a strong odour of liquor coming from Mr. Tjernstrom and noticed that his speech was slurred. He formed a reasonable suspicion that Mr. Tjernstrom had alcohol in his body and made an approved screening device demand. [ 8 ] Mr.

Tjernstrom provided a sample of breath into an approved screening device and failed. [ 9 ] Mr. Tjernstrom testified that he had been doing drugs and drinking earlier in the evening and was not surprised by the result. [ 10 ] Cst. Shiell explained to Mr. Tjernstrom that he could provide a second sample of breath into second device, and the lower of the two readings would be relied upon to determine what happened next. [ 11 ] Despite some initial uncertainty, Mr. Tjernstrom agreed to provide a second sample. [ 12 ] Cst. Oliver arrived and kept Mr. Tjernstrom under observation while Cst.

Shiell obtained the second device from his vehicle. [ 13 ] Cst. Oliver observed Mr. Tjernstrom reach into the driver’s side of his vehicle. Cst. Oliver did not know what he was doing and told Mr. Tjernstrom that he was not allowed to enter his vehicle. Mr. Tjernstrom then put his hands into the pockets of his “bunny hug”. For safety reasons, Cst. Oliver directed Mr. Tjernstrom to remove his hands from his pockets and he did. [ 14 ] When Cst. Shiell returned, Mr. Tjernstrom expressed reluctance about doing a second test. He also told Cst.

Shiell that he needed to urinate. [ 15 ] To preserve the integrity of the testing process, Cst. Shiell told Mr. Tjernstrom that he could not urinate and was not free to go. [ 16 ] Although Mr. Tjernstrom was aware of the officer’s direction, he did not follow it; instead he turned and walked to the back of his truck. [ 17 ] Both officers testified that they told Mr. Tjernstrom to stop more than once. Cst. Oliver said he told Mr. Tjernstrom he was detained and not free to leave but Mr. Tjernstrom ignored him and kept walking. [ 18 ] Mr.

Tjernstrom denied he was told to stop before reaching the passenger side of his truck. [ 19 ] As he walked to the passenger side of the truck, Mr. Tjernstrom placed his hands into the pockets of his bunny hug to take out a can of chewing tobacco. [ 20 ] Neither officer knew what he was doing with his hands in his pockets. They both said it presented as a safety concern because Mr. Tjernstrom was not following their directions and could have been reaching for a weapon. The officers also said they were concerned that he might have been trying to flee. [ 21 ] Mr.

Tjernstrom testified that he was not planning on fleeing, but walking over to the passenger door to let his passenger out because he knew the truck was being impounded.

[ 22 ] Cst. Shiell said that he grabbed Mr. Tjernstrom’s arms from behind to prevent him from using anything that might be in his pockets and attempting to flee. [ 23 ] Mr. Tjernstrom began violently struggling to free himself from the officer’s grasp. [ 24 ] Cst. Oliver approached from the front of Mr. Tjernstrom’s vehicle and assisted Cst. Shiell. [ 25 ] Mr. Tjernstrom described his interactions with both officers up to the point of being physically restrained as polite and cordial. [ 26 ] Mr. Tjernstrom recalled that it was Cst. Oliver and not Cst. Shiell grabbing him from behind.

He described the hold as a “nelson” type hold with Cst. Oliver’s arm near his neck. He said it was painful and he instinctively reacted by trying to free himself. [ 27 ] Despite being uncomfortable and scared, Mr. Tjernstrom said he did not ask the officer what was going on, nor did he tell him that he was in pain. [ 28 ] The officers tried moving Mr. Tjernstrom towards the front of his truck to gain better control of the situation. However, Mr. Tjernstrom was able to push himself away from the truck. [ 29 ] The three eventually moved near the front of Cst. Shiell’s police vehicle.

As they neared the police vehicle, both officers tried to gain better control over each arm so they could handcuff Mr. Tjernstrom. [ 30 ] Again, Mr. Tjernstrom recall of the events differs. He testified that Cst. Oliver was the only one to have him in his grasp. It was Cst. Oliver who steered him over to Cst. Shiell’s vehicle and it was only when they neared the vehicle that Cst. Shiell got out of his vehicle and approached. [ 31 ] Mr. Tjernstrom eventually freed his right arm, and according to Cst. Shiell turned towards him and punched him.

He said the punch was to the side of his face but he could not recall if it made contact. [ 32 ] During cross examination, Cst. Shiell described the single punch as a flurry of punches and then later described Mr. Tjernstrom’s arms as flailing. [ 33 ] Cst. Oliver initially testified that he witnessed Mr. Tjernstrom throw a punch but was unable to tell whether it connected with Cst. Shiell. However, during cross-examination he acknowledged that he had not made any reference to a punch in his police notes.

He also conceded that he had no independent recollection of seeing the punch and agreed that he may not have seen a punch after all. He agreed with Mr. Tjernstrom’s counsel’s suggestion that his memory may have been influenced by what Cst. Shiell told him. [ 34 ] Cst. Shiell said following the punch, he grabbed Mr. Tjernstrom’s jacket and punched him in the face. Although he believed he punched him twice, he was uncertain. He said he punched him as hard as he could but did not knock him to the ground. [ 35 ] Cst. Oliver, on the other hand, did not see any punches thrown by Cst. Shiell.

He explained this may have been because of his position behind the parties. [ 36 ] Mr. Tjernstrom denied ever punching or attempting to punch Cst. Shiell. Rather, it was Cst. Shiell who he says approached and began punching him. [ 37 ] Cst. Shiell said that following his punches Mr. Tjernstrom momentarily stopped resisting. [ 38 ] However, he was uncertain whether the punches actually stunned Mr. Tjernstrom or if he was simply planning his next move. Cst. Shiell said that he still did not feel they (the police) had gained complete control of the situation and needed to get Mr.

Tjernstrom to the ground. [ 39 ] Cst. Oliver, on the other hand, did not recall any type of break in the struggle. He said when the opportunity presented itself he got Mr. Tjernstrom to the ground with a hip toss. He described Mr. Tjernstrom’s knees hitting the ground first and then his upper body. [ 40 ] Both officers testified that as Mr. Tjernstrom was going to the ground Cst. Shiell pulled out his pepper spray and sprayed Mr. Tjernstrom in the face. [ 41 ] When sprayed, both officers said the struggle ended and they were able to get Mr.

Tjernstrom handcuffed and into the back of the police vehicle. [ 42 ] While in the back of the vehicle, Mr. Tjernstrom became unresponsive and was taken to the hospital. The Court was never told what caused Mr. Tjernstrom to lose consciousness that night. [ 43 ] Although Mr. Tjernstrom said the punches and the fall to the pavement were hard, he did not describe receiving any significant injuries. Mr. Tjernstrom admitted to doing cocaine, marijuana and drinking alcohol earlier that evening.

For these reasons, it would be dangerous to speculate that the force used by the police caused him to become unresponsive. [ 44 ] Although Mr. Tjernstrom appeared credible, his evidence was not reliable. I agree with his counsel when he states in his written submissions: [Mr. Tjernstrom] was under the influence and suffered at least three serious blows to the head plus OC spray and then lost consciousness, so common sense dictates that can affect memory. [emphasis added] [ 45 ] His consumption of drugs, alcohol and his loss of consciousness are likely responsible for Mr.

Tjernstrom’s poor ability to recall the events correctly. Much of what he does recall does not accord with common sense.

[ 46 ] For instance, he said that neither officer told him to stop until he reached the passenger side of his truck. Yet he admits that Cst. Shiell told him he was not free to leave or even go and urinate. [ 47 ] He said that he walked over to the passenger door to tell his friend to get out of the truck but could not provide a sound explanation why he did not simply tell her to do so through the open truck door. [ 48 ] On his own account, Mr.

Tjernstrom described his interactions with the officers as being polite and cordial, but claims for no reason being physically restrained and then beaten. [ 49 ] On the evidence presented, both officers appeared credible; however, their description of the assault was less than reliable. Some examples of this are as follows: • Cst. Shiell could not recall whether the punch connected; • Cst. Shiell was not consistent in whether Mr. Tjernstrom threw one or multiple punches, or was just flailing his arms; • Cst. Oliver was not consistent in his evidence about whether he actually saw Mr.

Tjernstrom throw any punches; and • Cst. Oliver also did not recall seeing Cst. Shiell throw any punches despite being present. [ 50 ] I attribute these inconsistencies not to a deliberate effort on the part of the officers to mislead the court, but the challenge they faced in recalling a dynamic and stressful turn of events. [ 51 ] After considering all of the evidence, and without the benefit of anything further, I would have been left with a reasonable doubt about whether Mr. Tjernstrom assaulted Cst.

Shiell. [ 52 ] With respect to the charge of obstruction, and the other Charte r arguments raised, I am not able to make any findings. In reaching the conclusion I have with respect to the missing disclosure, it would be inappropriate to make any final determinations with respect to credibility and/or reliability. Analysis 1 Were Mr. Tjernstrom’s rights pursuant to sections 7 and 11(

d) of the Charter impugned by the failure of the police to collect and preserve evidence? [ 53 ] Mr. Tjernstrom argues that his rights under sections 7 and 11(

d) were impugned by the following actions of the police: • Cst. Shiell’s failure to activate the dash cam on his vehicle; • Sgt. Kennedy’s failure to obtain formal statements from both officers, and/or his failure to record his conversations with them; • Cst. Shiell’s failure to retain the original and all the revisions of his report to Crown Counsel. a. Cst. Shiell’s failure to activate the dash cam on his vehicle [ 54 ] Mr. Tjernstrom argues that his rights were breached by the officer’s failure to turn on the dash cam and recording the events outside the police vehicle. [ 55 ] I do not agree.

This is not a situation of evidence being destroyed or even lost, rather evidence which was not obtained. Cst. Shiell simply refrained from the “possibility” of taking an investigatory step of creating evidence.

I say “possibility” because Sgt Kennedy testified that his detachment had been told there were problems with the model of dash cam in the police vehicle and they were encouraged not to use it. [ 56 ] Furthermore, it is also unclear from the evidence what the dash cam, if working properly, would have been able to capture, both in quality and in scope. [ 57 ] Even if it was capable of recording what took place, just as an accused is entitled to a fair trial and not a perfect trial, officers investigating a crime are not expected to reach a level of “perfection” in their investigations. [ 58 ] Although it might have been prudent, and responsible police practice to turn on the equipment, there was no legal obligation to do so.

The officer’s failure to engage the recording equipment is far from investigative negligence. [ 59 ] I dismiss the application. b. Sgt. Kennedy’s failure to obtain formal statements from both officers, and/or his failure to record his conversations with them. [ 60 ] Following the incident, Sgt Kennedy, in his role as detachment commander, spoke to both constables about what occurred. He spoke to them on more than one occasion. Although he made some cursory notes, Mr. Tjernstrom’s counsel argues that he had a duty to properly record everything they said and second, formally interview them. [ 61 ] I do not agree.

Sgt Kennedy was not engaged in an investigative function when he spoke to the officers. Rather he was exercising his role as a supervisor and administrator. He was not in the process of gathering evidence. [ 62 ] Although evidence given by a police officer which is not contained in his or her notes may be suspect and given less weight,

there is no evidentiary rule that a police officer’s testimony unsupported by detailed notes is inadmissible or deemed incredible oruntrustworthy. The absence of detailed notes, and/or their quality are only factors to be used in assessing credibility and reliability. [63] The failure by Sgt Kennedy to take detailed notes, or statements from the two officers is not a breach of Mr. Tjernstrom’sCharter rights. I dismiss the application. c. Cst. Shiell’s failure to retain the original and all the revisions of his report to Crown Counsel. [64] Mr. Tjernstrom’s counsel argued that Cst.

Shiell breached his client’s rights by failing to preserve the original draft of his reportto Crown Counsel and subsequent changes made to it. [65] Cst. Shiell testified that the police report was prepared the morning of the incident when the facts were most fresh in his mind. The preparation of his report was likened to the continuation of his notes. He said the report contained his own observations because hewas the officer in charge of the investigation. [66] After its completion, Cst. Shiell returned to the report and made changes.

Some of the changes occurred after he had spoken tohis service representative and legal counsel in relation to the “independent investigation” that had been commenced in relation to hisconduct in the matter. [67] Cst. Shiell said after speaking to counsel, he went back into the report to “rework” it. [68] He testified his reason for doing so was not to change the evidence but to better articulate certain points or update the report. Unfortunately, Cst.

Shiell was not able to recall exactly what those changes were. [69] Although software is readily available, the word processing software used by the police does not track and retain changes madeto reports. Therefore, no record exists of the changes made by Cst. Shiell. [70] Eventually, all police reports are reviewed by supervising officers, upon approval they are ‘locked’ and no further changes canoccur. In the case at hand, the report was changed prior to it being locked. [71] When the report was reworked, Cst.

Shiell did not make any notes of what changes he made or the reasons for them. [72] In R. v Fitts, 2015 ONCJ 262, Paciocco J. provides an excellent

summary of the law as it relates to breaches of the Crown’sdisclosure obligations. Starting at paragraph 20 he writes: The principles that are to be applied in a "lost evidence" application coalesced in R. v. Carosella, (SCC), [1997] 1S.C.R. 80 (S.C.C.), and R. v. La, supra, and are helpfully summarized in other decisions including R. v. Miniaci, 2011 ONCJ 491 (Ont.C.J.) and R. v. Kolthammer, [2011] A.J. No. 1277 (Alta. Prov. Ct.). Those principles reduce themselves to the following propositions,material to this case: 1.

The Crown has an obligation to preserve information that it is obliged by law to disclose as "first party disclosure": R. v. La, supra atpara. 20. If evidence that the Crown was obliged to disclose becomes lost, the Charter may be breached in one or more of three distinctways. There may be (1) a simple "non-disclosure breach," (2) a "breach of the right to make full answer and defence," or (3) an "abuse ofprocess" breach. Burdens of Proof 2. Each of these challenges requires a foundation that the target information or "evidence" has become lost.

Disclosure obligations, andhence the law of lost evidence, cannot apply if the target information never existed. An applicant who brings a disclosure application istherefore required "to identify the existence" of the information it is seeking. This is not a formal evidentiary burden but requires theapplicant to establish, either orally or by evidence in cases of dispute, that there is an air of reality or live issue that the informationexists: R. v. Chaplin (1994), (SCC), [1995] 1 S.C.R. 727 (S.C.C.) at paras 25, 30.

This burden is aided by the ethicalobligation on the Crown to make disclosure (at para. 21), which includes an ethical obligation to acknowledge that it has or hadpossession or control of information being sought. 3. Where "the existence of certain information has been identified" by the claimant in this way and disclosure has not been made, theprosecuting Crown is obliged to offer an explanation for non-disclosure: R. v. Chaplin, at para. 25. This rule no doubt exists becauseonly the Crown knows the actual status of what it possesses or controls.

The Crown can discharge its obligation by "demonstrating thatthe information sought is beyond its control," or is not otherwise subject to first party disclosure (R. v. Chaplin, supra at para. 25). It cando so by: (

a) proving that, in spite of any air of reality to the contrary, it never, in fact, had possession or control over the information identified, or, (

b) establishing that the information "is clearly irrelevant or privileged" (R. v. Chaplin, supra at para. 25) and therefore not subject to firstparty disclosure, or (c) "by establishing that the record in question is in the hands of a third party, or was generated by a third party who holds theinformation" or that the records "are held as third party records," therefore not subject to first party disclosure: Duff v. Alberta (AttorneyGeneral), [2010] A.J. No. 901 (Alta. Prov. Ct.) at paras. 79-81, and R. v. Coopsammy, 2008 ABQB 266 (Alta. Q.B.). The "Non-Disclosure Breach" 4.

If it is found that information that the Crown is obliged to preserve as first party disclosure has been lost or destroyed, the onus falls

on the Crown to explain how this occurred. There will be a breach of the duty to preserve evidence, and hence a "non-disclosure breach"of

section 7 of the Charter, unless the Crown explanation proves that the evidence has not been lost or destroyed maliciously, or owingto unacceptable negligence; R. v. La, supra at para. 20. 5. In deciding whether an explanation is satisfactory "the court should consider the circumstances surrounding the loss of the evidence,including whether the evidence was perceived to be relevant at the time it was lost, and whether the police acted reasonably in attemptingto preserve it. The more relevant the evidence is, the more care should be taken to preserve it": R. v.

Miniaci, supra at para. 16,summarizing the law from R. v. La, supra, para. 21. 6. "Where the Crown fails to satisfy the Court, the Crown will have failed to meet its disclosure obligation and there will be a breach ofs.7 of the Charter. There is no additional requirement to show prejudice in order to establish a breach in these circumstances": R. v.Kolthammer, supra at para. 34, citing R. v. Carosella, supra at para. 40. The "Full Answer and Defence" Breach 7.

"Even where the Crown has discharged its duty by disclosing all information in its possession and explaining the circumstances of theloss of any missing evidence, an accused may still rely on his or her s.7 right to make full answer and defence. Thus, in extraordinarycircumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of anaccused to receive a fair trial.... The accused must establish actual prejudice to his or her right to make full answer and defence": R. v. La, supra at paras. 24, 251 The Abuse of Process Breach 8.

In addition to a non-disclosure breach or the full answer and defence breach, a failure to produce evidence may be found to be anabuse of process: R. v. Miniaci, supra at para. 16, summarizing the law from R. v. La, supra at para. 20. 9. [An abuse of process breach] "must include conduct on the part of governmental authorities that violates those fundamental principlesthat underlie the community's sense of decency and fair play. The deliberate destruction of material ... for the purpose of defeating theCrown's obligation to disclose the material will, typically, fall into this category.

An abuse of process, however, is not limited to conductof officers of the crown which proceeds from improper motive.... Accordingly, other serious departures from the Crown's duty topreserve material that is subject to production may also amount to an abuse of process .... In some cases an unacceptable degree ofnegligent conduct may suffice.": R. v. La, supra at para. 22 The Remedy 10. None of these forms of breach satisfy the "obtained in a manner" requirement under section 24(2) of the Charter.

If one or more ofthese breaches are established, the remedy must therefore be found in section 24(1), and can include the exclusion of evidence that theloss of the evidence in question compromises, or a stay of proceedings. In either case, "while the degree of prejudice may not figure inthe determination of whether there has been a breach, it is material to the fashioning of an appropriate remedy": R. v. Kolthammer, supraat para. 76, citing R. v. Carosella, supra at para. 27. 11. "[A] stay is the appropriate remedy only if it is one of those rare cases that meet the criteria in R. v. O'Connor": R. v.

Miniaci, supraat para. 16. Those principles have been modified, as set out most recently in R. c. Piccirilli, 2014 SCC 16 (S.C.C.) at para 32.Specifically, for a stay of proceedings to be appropriate:

(1) There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome."

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interests thatsociety has in having a final decision on the merits." 12. Exclusion of evidence must satisfy the standards for exclusion under section 24(1) of the Charter established in R. v. Bjelland,namely, "(

a) where the [admission] renders the trial process unfair and this unfairness cannot be remedied through an adjournment anddisclosure order or (

b) where exclusion is necessary to maintain the integrity of the justice system": R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651 (S.C.C.) at para. 24, and see R. v. Kolthammer, supra. [73] The destruction of police notes was considered in R. v Ly, (ON CA), [1997] OJ No 686 (CA). In that casethe officer made notes regarding his surveillance of the accused and their physical descriptions on a piece of cardboard. He latertransferred the notes to paper and discarded the cardboard.

The accused argued that his ability to make full answer and defence had beenbreached by the destruction of the cardboard. [74] Although the Court agreed that there had been a breach, it observed that there was no appreciable prejudice to the accused.

First, the officer testified that he copied the notes into his notebook within a couple hours of making the observations, and his colleaguealso recorded the descriptions that he received from him at the time of the observations and was able to testify about them. [75] In R. v Mohamed (1997), 1997 ABCA 271 , 200 AR 369 (CA), the Court found no error in a judge allowing an officerto refer to notes to refresh her memory when she destroyed her original ‘scratch’ notes but transposed them “verbatim” into completenotes within 6 hours of the event. [76] In R. v Forster, 2005 SKCA 107, the accused argued that his rights had been breached by the investigating officer’s failure topreserve his original police notes.

The officer had been involved in a 6-7 month long investigation which entailed surveillance. After

drafting an information to obtain for a search warrant, the officer destroyed his notes. The Crown argued that the accused did not suffer any irreparable prejudice because the contents of the notes had essentially been preserved in the information to obtain. [ 77 ] The Court observed that cases involving single incidents and what amounts to a transcription of the exact content of the notes into a neater or more organized and comprehensive fashion will rarely require a remedy.

However, where, as in the case of an application for a warrant, officers try and put all the information in the very best light for the Crown, and tend to minimize the aspects unfavourable to the success of the application, there most likely will be some change to the substance of the original notes. [ 78 ] The Court agreed that without knowing the exact content of the notes, it would be difficult to say precisely how the defence could have used the information. Regardless, at a minimum, the original notes could have been used to test the officer’s credibility.

As the Court points out, this is a frequent and necessary use of police notes and often the only effective way to test the credibility of police witnesses. [ 79 ] The Court further found that the information to obtain was not a satisfactory substitute for the original notes. The Court went on to find a breach and concluded the only remedy was a stay of proceedings. [ 80 ] In R. v Oxley, 2013 ABCA 65 , the trial judge allowed the investigating officer to refresh her memory from her police notes, some of which were modified well after the event in question.

The modifications were made by the officer following recommendations by a quality assurance section. The

section apparently sent the report back on multiple occasions for her make corrections and revisions. The officer could not remember what changes she made in response to the section’s recommendations. [ 81 ] At trial the defence sought production of all the drafts of the police report but they no longer existed. [ 82 ] The trial judge concluded that the quality assurance

section recommended clerical changes like how to write milligrams percent and the order the paragraphs should appear for the sake of clarity. In short the recommendations related to formatting and style, and not substantive issues. [ 83 ] The Alberta Court of Appeal concluded that based on the trial judge’s findings that the changes were clerical in nature the judge did not err in allowing the officer to refresh her memory. However, in obiter, the Court comments on the need for police to preserve all drafts when substantive changes are made.

The Court states at paragraph 16: …the appellant correctly argues that if changes are to be made to the reports of police officers, copies of all drafts, and the source of all changes, should be kept. However, given the finding of the trial judge that the changes were all clerical in nature, no reviewable error is disclosed. [ 84 ] In R v Croft, 2014 ABQB 23 , the officers responsible for drafting an information to obtain shredded all of the draft copies and retained only the original.

Burrows J. distinguished draft affidavits from police notes, and did not find the destruction of affidavits to be the same as the destruction of police notes. Justice Burrows explains at paragraph 29: Further, in my view there is no obligation on the part of the police to retain for disclosure drafts of affidavits which come into existence in the process of preparing the final version of the affidavit. The obligation to disclose exists in respect of information gathered through the investigative process.

In my view, a police officer assigned to draft an affidavit to be used in an application for a judicial authorization, is engaged in a function which should be distinguished from (though it is closely related to) the investigative function. His role is to marshal the information which has been obtained in the course of the investigation for the purpose of showing a judge that the preconditions to the granting of the judicial authorization are satisfied. He is engaged in a form of advocacy.

As the application for the judicial authorization will be made ex parte and will seek authorization for a serious interference with personal privacy, the police officer affiant has a duty of utmost good faith and to make complete disclosure of information both supporting and non-supporting. Nevertheless, as, at least in Alberta practise, the application will consist solely of the affidavit (there will usually be no submissions or oral representations), it is to anticipated that he will present the information in such manner as will maximize the likelihood that the authorization sought will be granted.

In the drafting process he is not creating a record of observations made or information obtained through investigation. He is using such records to demonstrate the existence of a legal basis for a judicial authorization. His analysis of what the investigative record establishes in relation to the legal basis for a judicial authorization does not add to the investigative record - it grows out of that record.

The various paths and false turns that analysis may take before the final version of the affidavit is settled upon are of no significance. [ 85 ] Justice Burrows pointed out that at best the draft affidavits would have represented “snapshots” of the state of the development of the affidavit at a given moment. As such the drafts were of little significance. [ 86 ] In the case at hand, the Crown argues that no evidence has been lost. Rather, the officer merely made changes to better articulate the description of the events and provide a more detailed and polished report.

Indeed police should never be faulted in their efforts in perfecting their written work. [ 87 ] The Crown further argues that a requirement that all changes to a police report be retained would, from a public policy perspective, result in a logistical nightmare. [ 88 ] An accused’s ability to make full answer and defence does not require that each time an officer changes or deletes a word, or sentence, or changes the structure or organization of a paragraph(

s) that those changes to the report be disclosed. If there were such a requirement, it would require officers to disclose their thought process before and during the preparation of the report, clearly an impossible task.

[ 89 ] However, where, as in the case at hand, the officer himself is the subject of a criminal investigation, and consults counsel, there lays a very real risk that an officer could unknowingly slip into the role of becoming his or her own advocate; similar to the situation the officer found himself in, in Foster , supra.

As a result of this dual role, there is a very real risk that the officer may, after learning about the investigation and/or speaking to counsel either intentionally or unintentionally over state or embroider the facts to represents his actions in the most favourable light. [ 90 ] In this context, the “snapshots” of the development of the report become critical and important in evaluating the credibility and reliability of the officer’s observations. [ 91 ] Cst. Shiell said that he did not alter the evidence when he reworked the report; I accept that he was being honest and truthful.

However, without something more, I cannot confidently rely on his evidence and conclude, even on a balance of probabilities that the evidence was not altered. The difference between better articulation and altering the evidence can be a very fine distinction. [ 92 ] I am satisfied that relevant evidence has been destroyed or lost. [ 93 ] In this day and age, all officers are aware of their duty to preserve notes and all relevant material. Although I attribute no nefarious motivations to Cst.

Shiell regarding the destruction of the original draft, its relevance should have been obvious to Cst Shiell and better efforts and care should have been made to preserve it. [ 94 ] To make an analogy, if Mr. Tjernstrom had provided a statement to the police, and days later came back and said he wanted to better articulate what he had said earlier, the police would not simply erase the portions he wanted to change and let him a have redo. Instead a second statement would be obtained and the first retained in its original format.

The retention of both would have been necessary in evaluating both his credibility and reliability. [ 95 ] In these very unique and exceptional circumstances, Cst. Shiell should have added an addendum to his report stating that he felt further articulation was required regarding a certain point, articulated the point and dated the addendum. If he felt a greater reworking of the document was required, he could have preserved the original.

If he was simply updating the document, he could have done so by way of an addendum or separate paragraph. [ 96 ] Reworking the document without any cogent explanation of what the reworking entailed, is no different than using whiteout on original notes. [ 97 ] I am satisfied the loss or destruction of the original draft is the result of unacceptable negligence. [ 98 ] I am satisfied the Crown has failed to meet its disclosure obligation and the accused rights under

section 7 of the Charter have been breached. 2 If the answer is yes, what is the appropriate remedy? [ 99 ] The material in issue has been destroyed. It cannot be recreated. Since it could have been used by the defence to evaluate and challenge Cst. Shiell’s credibility and reliability, the defence has been prejudiced by its loss. Accordingly both branches of the test warranting a stay of proceedings have been met.

T here is no alternative remedy capable of redressing the prejudice. [ 100 ] In reaching this conclusion I have given careful consideration to the need to preserve the integrity of the justice system, and the interests that society has in having a final decision on the merits. [ 101 ] I grant a stay of proceedings. THE HONOURABLE JUDGE G.W. KOTURBASH