Her Majesty the Queen - v. -, 2015 SKPC 66

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 66 Date: May 14, 2015 Information: 24537782 Location: Assiniboia _____________________________________________________________________________ Between: Her Majesty the Queen - and - Riley Paterson Appearing: Brian Hendrickson, Q.C. For the Crown Adam Fritzler For the Accused JUDGMENT M. GORDON , J [ 1 ] Riley Paterson is charged on or about May 4, 2014, at or near Assiniboia, Saskatchewan, did having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle contrary to s. 253(1) (

b) of the Criminal Code . And, count 2, on or about the 4 th day of May 2014, at or near Assiniboia, Saskatchewan, did while his ability to operate a motor vehicle was impaired by alcohol did operate a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code . The Crown proceeded summarily on both matters. [ 2 ] The defence served and filed a notice of Charter application alleging that Mr. Paterson’s rights as guaranteed under s. 7 and

s. 11 of the Canadian Charter of Rights and Freedoms have been infringed or denied. It is argued that Mr. Paterson has been denied the ability to make full answer and defence because of lost evidence which would have aided in his defence. The defence asks for a stay of proceedings pursuant to s. 24(1) of the Charter . [ 3 ] By agreement the proceedings commenced with a Charter voir dire. There is little dispute on the evidence. [ 4 ] Cst. Peter Marshall was the only Crown witness.

On May 4, 2014, he was working and received a call from his dispatch about 1:50 a.m. reporting a vehicle travelling south near Ardill, Saskatchewan. This vehicle was driving erratically at various speeds and was all over the road. He was provided with a licence plate number. The officer drove north on Highway #2 and saw a truck that matched the vehicle description he had been given.

He decided to stop the vehicle and check the driver’s sobriety and driver’s licence. [ 5 ] At 2:15, he stopped this vehicle and the driver produced a Saskatchewan photo driver’s licence in the name of Riley Paterson, the accused in these proceedings. The officer advised Mr. Paterson the reason for the stop was to check for his sobriety and his licence. He noted that Mr. Paterson fumbled with his wallet before he produced his licence. In addition, the officer could smell alcohol on Mr. Paterson’s breath. In response to the officer’s questions, Mr. Paterson said he had two or three drinks in Moose Jaw.

The officer advised Mr. Paterson he was being detained for an impaired driving investigation and asked Mr. Paterson to come back to the police vehicle for a test. Mr. Paterson exited his vehicle and appeared to stare at the police vehicle for a moment and then took very deliberate steps walking to the police vehicle. Once in the vehicle, the officer immediately read Mr. Paterson the approved screening device demand from his card. Mr. Paterson replied he understood and said “yes, sir”. Mr. Paterson provided a suitable sample and the result was a fail reading. The officer told Mr.

Paterson he was under arrest for impaired driving and read his rights to counsel and police warning at 2:18 a.m. [ 6 ] Mr. Paterson indicated he understood and that he did want to call a lawyer. At this point Mr. Paterson asked why he had to take another test and the officer explained to him that the first test formed the basis for the Intoxilyzer demand. He again read the demand at 2:19 and Mr. Paterson said yes, he did understand. At 2:21, he read the police warning and again Mr.

Paterson said he understood. [ 7 ] There was a female passenger in the Paterson vehicle and she indicated that she could easily walk home so the Paterson vehicle was left on the shoulder of the road at 2:25. At 2:28, the officer and Mr. Paterson arrived at the RCMP Detachment and Mr. Paterson was taken to the interview room. Mr. Paterson said he did not know who he wanted to call and the officer advised that phone books were available and there was a number of names and phone numbers of local lawyers posted on the wall. Mr.

Paterson chose to contact Legal Aid and at 2:32, he did contact Legal Aid and had a conversation in private. The officer explained that the interview room had audio and video recording equipment but these were turned off during consultation with counsel so there was the required privacy. [ 8 ] At 2:39, Cst. Marshall returned to the room as Mr. Paterson was finished with his telephone call. The officer checked for mouth alcohol and told the technician that all was clear. There was a 15 minute observation period and then Cst. McKay, the technician, came and said he was ready and took Mr.

Paterson to the Intoxilyzer room. At 3:02, the first sample was provided by Mr. Paterson. [ 9 ] Mr. Paterson was taken back to the interview room after a further observation period and at 3:23 a.m., the second sample was provided. Cst. Marshall is standing in the door of the Intoxilyzer room observing events. He never heard Cst. McKay indicate that there was any problems in taking the sample. There appeared to be no issues with the Intoxilyzer machine. Cst. McKay advised Cst. Marshall and Mr. Paterson that the results were 150 milligrams percent for both tests. [ 10 ] Cst.

Marshall said there was a camera recording events in the Intoxilyzer room which is completely separate from the other recording equipment and is on 24/7. It is serviced out of Regina. This video information is stored in a server rack at the police detachment. On re-examination by the Crown, Cst. Marshall stated that the camera in the Intoxilyzer room is focused on the person being tested and not on the Intoxilyzer machine itself. [ 11 ] Cst. Marshall advised Mr. Paterson that he was releasable if a sober person came and picked him up. Mr.

Paterson declined and as a result he was lodged in cells. [ 12 ] The Certificate of Analyses and the Notice of Intention and service of the certificate were filed by consent as Exhibit P-1 on the voir dire .

[13] Cst. Marshall explained that when he receives a disclosure request, he provides the material to the Crown. However he doesnot retrieve the video recording of the Intoxilyzer room until a not guilty plea has been entered. In this case, about six weeks after thisincident, another officer was trying to download a video recording of a different accused in other proceedings and found that nothing wasrecoverable and the recorder was not working. The RCMP support services in Regina sent a technician to confirm that the equipmentwas not working and there was nothing recoverable.

The technician apparently could not say if the video recording equipment had beenworking at the time Riley Paterson was in the room. Cst. Marshall was not sure when the last DVD would have been obtained from thisequipment. Apparently all has been replaced now and it is functioning properly. [14] On cross-examination Cst. Marshall acknowledged that the initial disclosure package was received May 12, 2014, but it is hispractice and it appears to be the detachment’s practice, not to download the video until a not guilty plea is entered.

The reason theofficer gave is that while it is not a complicated process, it does take some time. Cst. Marshall was not aware if there had been anybackup to this system. He was not aware of how long information was retained and basically did not know too much about the exactworkings of the system. He did say that the Intoxilyzer machine itself does self tests and prints out a test sheet before being used onevery individual which shows that the machine is accurate. The machine won’t let a person do the test if it is not in working order. [15] Cst.

Marshall says that when he was preparing the prosecutor information sheet he wrote down that the samples were 150 and140, and this was in error. The Certificate of Analyses has the correct readings. The officer said that initially he made one page of notesand when Mr. Paterson was placed in cells he made more complete notes, being about nine pages in all. The reason he did not makemore extensive notes at the time is that he did not want to delay any of the procedures with extensive note taking as he was aware thetiming is important. [16] Cst. Marshall recalled Mr.

Paterson saying that he had seen a doctor in Moose Jaw about a problem with his jaw and receivedmedication, and that he had only about three to four hours sleep. Mr. Paterson is not from the area. Cst. Marshall confirmed he did notknow the accused prior to these proceedings. [17] That was the evidence for the Crown. The defence evidence consisted of an affidavit of Riley Paterson marked as Exhibit D-1 on the voir dire. ARGUMENT [18] The defence noted the cases of R v Fisher, 2009 SKQB 296 and R v La, (SCC), [1997] 2 SCR 680 (SCC).

The defence argued that on behalf of his client, he made timely and detailed disclosure requests. He also followed up asking forcomplete disclosure. The defence argues that a recording of his client in the Intoxilyzer room is relevant and could affect his client’sability to make full answer and defence. Quite possibly, counsel argues, this evidence (the DVD recording) would be available to rebutthe presumption of accuracy. He suggests this is very important given the 2012 amendments to the Criminal Code.

The disclosurerequirements of the Crown are elevated or must be construed even more strictly given these amendments, he argues. [19] In addition, the defence says the police were negligent in failing to have procedures in place to routinely check whether therecording was in working order. As well, the police officer should have tried to retrieve this evidence as soon as he received thedisclosure request from defence counsel. It is argued this is not an onerous task although it may take some time. [20] The Crown submits that there has been no breach of Mr. Paterson’s Charter rights.

There is no legal requirement that thisarea, the Intoxilyzer room, be video recorded. As well, the camera in the Intoxilyzer room, according to Cst. Marshall’s evidence, isfocused on the subject or detainee, not the instrument and instrument panel of the Intoxilyzer machine. Therefore, the video even ifworking, would not show anything useful. The Crown points out that Cst. Marshall was present and observed the testing taking placeand he could have been cross-examined further by defence counsel as to anything that had taken place.

The Intoxilyzer operator wasalso available and could have been called if the defence had requested. [21] The Crown notes that the police officer has no control over the workings of these recordings. There was nothing more thepolice officer could have done. The fact that Cst. Marshall did not try to download the video until after the not guilty plea was entered, isof no consequence. There is no evidence that the information would have been available earlier.

[22] The Crown argued that even if this recording had been available, it is not relevant. There is no reasonable explanation orargument set forth as to how this would aid Mr. Paterson in his defence.

Finally, the Crown argued that even if there was a breach, astay of proceedings would not be the appropriate remedy in these circumstances. [23] The Crown relies on the following cases R v La, (SCC), [1997] SCJ No 30 (SCC) [La]; R v Stinchcombe, (SCC), [1991] 3 SCR 326 [Stinchcombe]; R v Carosella, (SCC), [1997] 1 SCR 80 [Carosella]; R vSpencer, 2015 SKQB 62; R v J.D., [2015] ONCJ 104; R v Puvtoski, 2014 ONCJ 658 ; R v Ricketts, 2014 ONSC 3210; R v PangChu, 2014 SKQB 315; R v McNabb-Brass, 2013 SKPC 210, 435 Sask R 57; R v Goosen, 2014 SKQB 135; and R v O’Connor, (SCC), [1995] 103 CCC (3d) 1 (SCC) [O’Connor].

THE LAW [24] The relevant portions of sections 7 and 11(

d) of the Charter read as follows: 7. Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with theprinciples of fundamental justice. 11. Any person charged with an offence has the right ... (

d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal; [25] The Crown has a duty to disclose all relevant information in its possession capable of affecting the accused’s ability to makefull answer and defence. (See R v Stinchcombe, (SCC), [1991] 3 SCR 326; R v Egger, (SCC), [1993] 2SCR 451 [Egger]; R v McNeil, 2009 SCC 3 , [2009] 1 SCR 66.) [26] Egger states that this duty also includes the Crown’s obligation to preserve relevant evidence.

In Egger, the Court states theCrown has some latitude in the accidental destruction of evidence although intentional or negligent destruction is likely to offend s. 7. [27] In R v McQuaid, (SCC), [1998] 1 SCR 244 at para 20, the Supreme Court further stated that for evidence tobe relevant “there must be a reasonable possibility that the information could be useful to the accused in making full answer anddefence”. [28] With respect to the issue of negligence in La at para 20, the Court stated that if the prosecution has lost evidence that shouldhave been disclosed, the Crown must prove that it did not lose the evidence due to unacceptable negligence.

If the explanation is notsatisfactory, the loss of evidence may be sufficient to establish a breach of s. 7 and 11(

d) of the Charter. [29] The main consideration is whether the Crown or the police took reasonable steps in the circumstances to preserve theevidence for disclosure. The higher the relevancy of the evidence, the greater the degree of care that will be required to preserve theevidence according to La at paragraph 21. [30] In R v Anderson, 2013 SKCA 92 at para 106, the Court states that the trial judge appropriately cited the governing law on thisissue by referring to the cases of R v Bradford, (ON CA), [2001] 151 CCC (3d) 363 (ONCA); R v Scheng, 2010ONCA 296; and La (supra).

In La, Sopinka J. sets out the legal framework for analysing when lost or destroyed evidence gives rise to abreach of s. 7 of the Charter and when it justifies a stay of proceedings.

[31] In R v B.(F.C.), [2000] 142 CCC (3d) 548, leave to appeal SCC denied, the Nova Scotia Court of Appeal at paragraph 10summarises the state of the law based on La, Stinchcombe, Egger, Chapman, O’Connor and Carosella, all from the Supreme Court:

(1) The Crown has an obligation to disclose all relevant information in its possession.

(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.

(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession,it must explain their absence.

(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclosehas not been breached.

(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstancessurrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police actedreasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.

(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s.7 Charter rights.

(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example,the conduct leading to the destruction of evidence was deliberately for the purpose of defeating the disclosure obligation.

(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one ofthose rare cases that meets the criteria set out in O’Connor.

(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case,there may still be a s. 7 breach if the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairsthe right to a fair trial. In this case, a stay may be an appropriate remedy.

(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application afterhearing all of the evidence. [32] The O’Connor criteria referred to in the 8th point are as stated by Justice L’Heureux-Dubé at paragraph 82 of O’Connor: It must always be remembered that a stay of proceedings is only appropriate “in the clearest of cases”, where the prejudice to theaccused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity ofthe judicial system if the prosecution were continued. [33] In R v Mills, (SCC), [1999] 3 SCR 668 at 718, Justices McLachlin and Iacobucci commented on the factthat an accused deprived of relevant information does not mean that the accused’s right to make full answer and defence is automaticallybreached.

Actual prejudice must be established. The fact that a piece of evidence is missing that might or might not affect the defencewill not be sufficient to establish that irreparable harm has occurred to the right to make full answer and defence. To determine whetheractual prejudice has occurred, consideration of the other evidence that does exist and whether that evidence contains essentially the sameinformation as the lost evidence is an essential consideration. In other words, it must be more than mere speculation.

ANALYSIS [34] This is a case of a video recording mistakenly not recording due to the failings of the system. In other words, the technologydid not work properly. Compounding this fact is that there was no system or protocol in place to periodically check to confirm that all was well. This is similar to the situation in R v Picot, [2000] OJ No 3605, 6 MVR (4th) 117, where the accused was charged with failureto provide a breath sample. The accused contended that the failure of the police to videotape the proceedings in the breathalyzer roomviolated the accused’s right to a fair trial under s. 7 of the Charter.

Approximately 10 days prior to the incident, the videotapingequipment had broken down and a request for a repair had been made. The officer was aware of this and was also aware that there wasanother functioning video recorder but that it would have taken some time to move the breathalyzer machine to the other room. TheOntario Superior Court of Justice stated at paragraph 6 that:

This is not a case where police lost or destroyed evidence. Here the evidence never existed. The Court goes on to say: While the trial judge would have benefitted from a tape of the appellate’s condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. [ 35 ] In the result there was no violation of the accused’s Charter rights. [ 36 ] In R v Fisher , 2009 SKQB 296 , the Court held that surveillance recordings in general are relevant to the defence in impairment related offences.

However, in Fisher it was impossible to conclude that the videos should have been disclosed as there was no evidence that the cameras were working at the time and it was never determined whether the cameras recorded still photographs which on the facts of Fisher would have proven of little value or a continuously streaming video which might have been of more assistance.

If the video cameras were not working or did not record the accused, the Crown would have no relevant video to disclose. [ 37 ] There is no legal requirement that the subject in the Intoxilyzer room be recorded by audio and visual video recordings. It is a widespread practice now at most detachments and in my view, a good one. However, the fact that there was not a recording due to faulty equipment does not automatically lead to a finding of non-disclosure by the Crown. There is no evidence to support any suggestion that the recordings were tampered with, recorded over or destroyed.

Unfortunately, there is no evidence to indicate how long this problem existed. There was certainly a gap in the system. The fact that there was no protocol or policy in place to regularly check to make sure the equipment was in working order really renders the equipment useless. [ 38 ] The fact that there is video recording in the Intoxilyzer room does not elevate it to a legal requirement to have such. I do not find this to constitute negligence on the part of the Crown. This is not a case of concealing evidence, destroying or recording over evidence. There are other avenues open to the defence.

The defence could have requested that the Intoxilyzer technician be called for cross-examination purposes. The technician was obviously present throughout as he performed the test and is trained on the Intoxilyzer machine. He could have been questioned as to what happened that night with respect to the machine; whether there was anything that would indicate difficulties or problems, etc. [ 39 ] As well, Mr. Paterson, the subject of the test, was obviously present throughout the proceedings in the Intoxilyzer room. His counsel filed an affidavit which is marked Exhibit D-1 in the proceedings, in which Mr.

Paterson deposed he did not know anything about these machines. That is fair enough. However, he did not depose that he noted anything else that might be suspect, that might require an explanation or that there was problems that he observed or experienced with the technician’s directions or whether the technician appeared to be having difficulties with the machine, the machine was making strange noises, or that several tests had to be taken because the readings were not satisfactory. Basically there was nothing. Of course Mr.

Paterson cannot explain the workings of the machine but if there was something that he noticed, because that is all a camera would do is perhaps pick up the machine was making strange noises or that several tests had to be taken. I also note that defence would have available the test sheets from the Intoxilyzer when the technician was preparing it for testing. [ 40 ] The defence says that the video recording is necessary so the accused can decide if he has an argument with respect to the presumption of accuracy of the machine given the 2012 amendments to the Code .

The defence says it is looking for evidence that is directed at the accuracy or reliability of the chemical analysis. It is not clear what evidence the defence is suggesting or anticipating or would have been available by this recording and what specific use the defence would have made of this evidence had it existed. It is pure speculation and I have no idea and defence counsel did not provide any more detail when asked by the Court as to what exactly might be there that would aid the defence. In addition, Cst.

Marshall testified that the video camera is focused on the detained person, not on the machine itself and would not pick up anything different. [ 41 ] In conclusion, in my view, there were other avenues open to the defence, there is only speculation as to the value of the evidence. Therefore, Mr. Paterson has not met the burden that there was actual prejudice to his case.

[ 42 ] In addition, this is not a case where the accused is charged with refusal. The accused blew satisfactorily two results and was only in the room a very few minutes. All the evidence is that everything proceeded properly and smoothly. Therefore the defence application is denied. The evidence on the Charter voir dire will be admitted to the trial proper. M. Gordon, J