2016 NBPC 1, 2016 NBPC 1

2016NBPC01 File: 04633211 CANADA PROVINCE OF NEW BRUNSWICK BATHURST PROVINCIAL COURT B E T W E E N: HER MAJESTY THE QUEEN -v.- MOHAMMED BEN SASSI DECISION ON A MOTION FOR A STAY OF PROCEEDINGS BEFORE: The Honourable Judge Ronald LeBlanc AT: Bathurst, N.B. DATE OF HEARING: February 23, 2016

DATE OF DECISION: March 31, 2016 APPEARANCES: René Dumaresq, for the Crown Luc Roy, for the accused 1 . On May 18, 2015, Constable Kurtis Ross of the Bathurst Police Force stopped Mohammed Ben Sassi’s vehicle. He read Mr. Ben Sassi the demand to provide a breath sample by means of an approved screening device. Mr. Ben Sassi was subsequently charged with refusing to comply with the demand and with operating a motor vehicle while impaired. Constable Ross had a video recorder in his patrol car. That recorder captured the 37 or so minutes of interaction between the vehicle’s two occupants. Counsel for Mr.

Ben Sassi requested disclosure of the video. He received it eight months later, at 3:30 p.m. on the day before the scheduled trial date. He requests that the Court hold this to be a breach of s. 7 of the Charter and grant a stay of proceedings as a remedy under s. 24(1) of the Charter . The prosecution contends that there was no Charter breach. The facts of the case were presented during a voir dire and are somewhat unusual. This is a decision following that voir dire. THE FACTS 2 . On May 28, 2015, Luc Roy, counsel for Mr.

Ben Sassi, sent a letter to the Crown Prosecutors Office requesting the full disclosure of his client’s file. 3 . Constable Ross had sent an email to Sergeant Lorna Daley of the Bathurst Police Force asking her to send him a copy of the video. Sergeant Daley is responsible for storing and copying all of the videos in question. 4 . Sergeant Daley retrieved the incident in question but was unable to make a copy of the video. She could watch it, but her computer would not let her make a copy. Her software would start the copying process, but would indicate an “error” at the 11% mark of the incident.

The result was the same despite numerous attempts. The video could not be copied. 5 . On May 26, 2015, Sergeant Lorna Daley wrote a note in Mr. Ben Sassi’s file. The message states that she received Constable Kurtis Ross’s request to make a copy of the video of the incident as recorded in the patrol car, that an “error” message appears during the first quarter of the copying process, that the incident can therefore not be copied, but that it can still be viewed. She notified Constable Raymond Roy of the problem.

Constable Roy is the Bathurst Police Force’s liaison officer between the court and the Crown Prosecutors Office. That note is affixed as Exhibit “D” to the affidavit of Mr. Ben Sassi, Exhibit D-1. 6 . The next time Sergeant Daley was involved was in February 2016. I will address this shortly. 7 . On June 25, 2015, Luc Roy sent the Crown Prosecutors Office a letter requesting additional disclosure, namely the user guide for the approved screening device, the Alco-Sensor FST, and “the dashboard video from Constable Ross’s car.” This letter is affixed as Exhibit “C” to Exhibit D-1. Mr.

Roy made this specific request after becoming aware of Sergeant Daley’s note dated May 26, 2015, which he read while reviewing the file. It goes without saying that Mr. Roy was aware as of June 25, 2015, that he could view the video but not be provided with a copy. 8 . Constable Ross read the letter from Mr. Roy dated June 25. He had to respond to it. He reviewed the file, saw the note from Sergeant Daley dated May 26, 2015, and responded directly to Mr. Roy by fax on June 26, 2015. He responded that he could not disclose the video because of an “error,” referring him to Sergeant Daley’s note.

The trial date had been set for February 23, 2016. 9 . On January 4, 2016, Mr. Roy sent another letter to the Crown Prosecutors Office. He informed them that he was requesting full disclosure of the file again because of a fire at his office. He included with his letter copies of the letters he had previously sent on May 28 and June 25, 2015.

10 . On February 15, 2016, Mr. Roy contacted the prosecutors’ secretary. He was wondering about the user guide he had requested in a letter the previous June 25. The secretary noted that their office had made a mistake by forgetting to give him a copy of the guide and she saw to providing him with a copy. Mr. Roy asked if, by any chance, he could also have a copy of the video he had requested in the same letter. The secretary mentioned this request to Mr. Dumaresq the following day, February 16. Mr. Dumaresq received the original video from Constable Raymond Roy the same day and watched it. He offered Mr.

Roy the opportunity to come watch the video at his office. 11 . On Wednesday, February 17, 2016, Sergeant Daley received a call from René Dumaresq. He informed her that he had watched the video and asked her why a copy could not be made, suggesting that it must surely be possible to produce one. Sergeant Daley tried a number of times to copy the video. Without going over these attempts, I ultimately find her efforts to make a copy of the video to be striking and remarkable, although all of her hard work came to nothing. She was unable to copy the video despite her efforts.

The reproduction would always freeze at the 11% mark of the incident. 12 . Finally, on February 20, 2016, Sergeant Daley used her personal video camera, at her private residence, to record the screen of her computer while the original video of the incident was playing on it. In other words, she made a recording of the incident, since she could not make a copy of it. I believe it was Mr. Roy himself who had suggested this solution and mentioned it to Mr. Dumaresq. In any event, the recorded version was stored on an ordinary memory card and copied onto a DVD by Sergeant Daley. A version was provided to Mr.

Roy on the afternoon of Monday, February 22. 13 . Those, in my opinion, are the relevant facts of the case. Certain findings of fact can be drawn from the narrative: • Two things about Constable Ross’s faxed response to Mr. Roy on June 26 seem important. First, Constable Ross contacted Mr. Roy directly without copying the Crown and, second, he did not contact Sergeant Daley about this additional disclosure request, either in person or by email. The Crown was therefore not made aware, in June 2015, of the content of the message sent to Mr.

Roy, and Sergeant Daley did not know that a breathalyser file from the Bathurst Police Force was making its way to Provincial Court with important disclosure missing. • As of May 28, 2015, the prosecution had a duty to disclose Mohammed Ben Sassi’s file to Luc Roy. The prosecution did not provide a copy of the video that recorded what transpired inside the patrol car at the time of the interaction between Constable Ross and Mr. Ben Sassi.

In my view, the right to make full answer and defence guaranteed by s. 7 of the Charter required the prosecution to disclose all of the relevant information in their possession to the defence. The video would have been required to be disclosed. • There was no communication between Constable Ross and Sergeant Daley regarding Mr. Ben Sassi’s case between May 26, 2015 (the date on which Sergeant Daley recorded in the file that the original video could not be copied) and the trial date. • The Crown Prosecutors Office received Mr. Roy’s letter dated June 25, 2015, on the same day.

They did not follow up other than by forwarding the letter to the police force. The prosecutors did not otherwise act on the request. • It was only when Mr. Roy inquired verbally about the user guide on February 15, 2016, that the staff of the Crown Prosecutors Office acted on his request, some eight months after the fact. Even the letter from Mr. Roy dated January 4, 2016, requesting a second disclosure because of the fire at his office, did not evoke a response from the Crown Prosecutors Office regarding either the guide or the video. THE POSITION OF THE PARTIES 14 . Mr.

Roy argues that the Charter was breached in this case given the late disclosure of the video. He contends that he did everything a defence lawyer can do to obtain the evidence to which he was entitled. The peace officers could have done in June 2015 what they managed to do in February 2016, that is, make a recording of the incident. In his submission, the totality of the circumstances reveals a certain disregard and disorganization between the Crown Prosecutors Office and the Bathurst Police Force that was prejudicial his client.

The prejudice in question is mainly financial – his client, who now lives in Montreal, had to pay for airfare as well as hotel and meal expenses in order to attend his trial, which is not going forward. He also missed two days of work, and there will be additional costs for legal fees. Finally, the resulting delay may be prejudicial as witnesses’ memories fade.

15. The Crown contends that there was no Charter violation since there was no breach of the duty to disclose. He suggests thatthere was no late disclosure. He contends that Mr. Roy received all of the material the police force could give him by way ofdisclosure. He says that Mr. Roy could not obtain a copy of the video because it was impossible to copy it, which is still the case. Therequired video could not be copied from the original. Mr. Roy was informed of this and invited to view the video if he wished.

TheCrown contends that the peace officers acted in good faith and did not, at any time, fail or refuse to provide the evidence in theirpossession. In the alternative, if there was a breach, the remedy should be an adjournment of the trial, not a stay of proceedings. 16. The issues are, first, whether or not s. 7 of the Charter was breached due to late disclosure and, if so, what the appropriateremedy would be. THE CASE LAW REGARDING THE EXISTENCE OF A BREACH 17. The prosecution must produce what it has in its possession or control. This duty of disclosure is ongoing and appliesthroughout a trial: R. v.

Stinchcombe (SCC), [1995] 1 S.C.R. 754 18. The prosecution cannot explain a failure to disclose relevant material on the basis that the investigating peace officers failed to disclose it to the prosecution: R. v. McNeil 2009 SCC 3 , [2009] 1 S.C.R. 66 19. The duty to disclose applies to both the police and the Crown: R. c. Jeffrey [2002] J.Q. No. 5063 20. The fact that the information sought in a disclosure request is in the possession of the police force and not of the prosecutiondoes not affect the Crown’s duty to disclose.

The prosecution has a duty to obtain from the police force the information that must bedisclosed to the defence. Accordingly, peace officers have a corollary duty to provide such information: R. c. Gagné (QC CA), [1998] A.Q. No 3240 21. The duty to disclose evidence gives rise to the corollary duty to preserve it. When evidence has been lost or misplaced, theprosecution has a duty to explain what happened to it. If the prosecution can satisfy the Court that the evidence has not been lost ormisplaced owing to unacceptable negligence, the duty to disclose has not been breached.

The judge should analyze the circumstancessurrounding the loss of evidence. The loss of relevant evidence will not give rise to a breach of s. 7 of the Charter if the conduct of thepeace officers was reasonable: R. v. La (SCC), [1997] 2 S.C.R. 680 22. Even when the prosecution has shown that there was no unacceptable negligence resulting in the loss of relevant evidence, ajudge may still find that s. 7 of the Charter has been breached if the loss of evidence is prejudicial to the right to make a full answer anddefence and to the right to a fair trial: R. v.

F.C.B. (2000) 2000 NSCA 35 , 142 CCC (3d) 540 (N.S.C.A.) 23. A judge should exclude evidence for late disclosure only in exceptional cases – namely (

a) where the late disclosure of theevidence renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure 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 THE CASE LAW REGARDING REMEDY 24. Untimely pre-trial disclosure will rarely merit a stay of proceedings. A judge should avoid such an extreme option for reliefwhen the fairness of the trial can be protected with a disclosure order and a special order to safeguard the right to make full answer anddefence: R. c.

Singh EYB 2006-110286 (C.A.) 25. When a failure to disclose is addressed at the start of a trial, the courts tend to consider the appropriate remedy to be adisclosure order together with an adjournment, rather than a stay of proceedings: R. c. Gagné (QC CA), [1998] 131C.C.C. (3d) 444 (C.A.Q.) 26. Finally, I cite paras. 117 to 119 of R. v. Taillefer; R. v. Duguay [2003] C.S.C. 75 (S.C.C.): 117 “This Court has frequently underlined the draconian nature of a stay of proceedings, which should be ordered only inexceptional circumstances.

A stay of proceedings is appropriate only “in the clearest of cases”, that is, “where the prejudice tothe accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to theintegrity of the judicial system if the prosecution were continued” (O’Connor, supra, at para. 82). It is a “last resort” remedy, “to

be taken when all other acceptable avenues of protecting the accused’s right to full answer and defence are exhausted” ( O’Connor , supra , at para. 77; see also Tobiass , supra , at paras. 89-90; Carosella , supra , at paras. 52-53; Regan , supra , at paras. 53 et seq .). 118 In O’Connor , supra , at para. 75, this Court adopted principles to circumscribe the power to order a stay of proceedings.

These principles confirm the seriousness of such a decision and the need for a careful and balanced analysis of all the interests at stake — the interests of the accused, of course, but also the interest of the public in crime being punished and in criminal cases being diligently prosecuted.

Those principles hold that a stay of proceedings will be an appropriate and fair remedy where: (1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and (2) no other remedy is reasonably capable of removing that prejudice. 119 These criteria recognize the prospective rather than retroactive nature of the remedy.

Although, in very rare circumstances, the conduct of the prosecution may be so serious that a stay of proceedings is required in order to avoid bringing our system of justice into disrepute, it is not the purpose of this remedy to punish blameworthy conduct on the part of the State. The remedy is primarily meant to prevent an abuse from being perpetuated or aggravated ( Regan , supra , at para. 54; Tobiass , supra , at para. 91). ” ANALYSIS 27 . In my view, a contextual approach should be taken to analyzing the case.

The judge should inquire into the totality of the circumstances in determining whether or not the Charter has been breached. The video in question is quite clearly a piece of evidence that could be important to the defendant. The prosecution does not dispute the duty to provide it. The peace officers made some effort to provide this evidence in accordance with their duty to provide all relevant evidence in their possession. Constable Ross asked Sergeant Daley to copy the video. Sergeant Daley made a number of attempts to do so. She notified Constable Ross when this proved impossible.

There is no doubt in my mind that Mr. Roy would have been given a copy if the police force had been able to make one. 28 . It was only after the Crown contacted Sergeant Daley directly and urged her to continue her efforts that Sergeant Daley set to work and managed to record the incident using a video camera. Unfortunately, this disclosure was made only a few days before the start of the trial. Sadly, this disclosure was initiated through defence counsel’s intervention and not by the peace officers or by the staff of the Crown Prosecutors Office. 29 . I believe Mr.

Roy did everything he could to obtain a copy of the video in question. No responsibility or fault lies with the accused or his counsel in this case. 30 . I am satisfied that the Crown breached its duty to provide an important piece of evidence to the defence. It consisted of a 37- minute video recording of the interaction between the investigating officer and the accused during which the accused is alleged to have committed one of the offences with which he is charged. That, in my view, is important evidence. 31 .

The peace officers and the staff of the Crown Prosecutors Office must have appreciated the importance of this evidence and, in my opinion, simply did not do what they had to do to respect Mr. Ben Sassi’s constitutional rights. Sergeant Daley made a note in the file that she was unable to copy the video and informed Constable Ross of the same. Constable Ross did not contact Sergeant Daley to inquire if there were any other possible options, nor did he contact the Crown Prosecutors Office to find out if he should take further action. The Crown Prosecutors Office received a letter from Mr.

Roy dated June 25, 2015, requesting a copy of the video but failed to act on it. The request seems to have simply been forgotten. This oversight lasted nearly eight months. 32 . As I see it, the community should be able to expect a better effort from those involved in prosecuting crimes. This was a serious request for important evidence. 33 . Having said that, I do not think there was gross or substantial negligence in this case. Everything the peace officers said or wrote about the matter was true. Sergeant Daley never managed to make a copy of the original video. The information Constable Ross conveyed to Mr.

Roy was accurate. Finally, it is worth noting that the copy ultimately provided to the accused is not a copy of the original. Instead, it was fresh evidence, an exhibit the police force created because it was unable to copy the original.

34. In my view, the solution suggested by Mr. Roy, which was ultimately implemented - the creation of a new exhibit - shouldhave been as obvious to the police force in June 2015 as it was in February 2016. This is why I consider that the Charter was breached. There was nothing preventing Sergeant Daley from making just as much of an effort in June 2015 to find the solution she applied inFebruary 2016. 35. I therefore find that s. 7 of the Charter was breached given the late disclosure of a piece of evidence. I will now speak torelief. 36. The video in question is currently in Mr. Roy’s possession.

An order enjoining the Crown to provide the evidence istherefore no longer required. The trial could not go forward because of this motion by the accused. Mr. Roy is seeking a stay ofproceedings, citing a Provincial Court decision in The Queen versus Ian Marc Bouchard, unreported, dated October 1, 2012. The Crowncontends that a simple adjournment is sufficient. 37. As I see it, the analysis to determine the appropriate remedy in a situation where the prosecution has provided a piece ofevidence belatedly and the defence is seeking a stay of proceedings is the one developed in R. v. Taillefer; R. v.

Duguay, supra, not theone in R. v. Grant 2009 SCC 32 , [2009] 2 S.C.R. 353. Grant deals with a situation where the court was faced with anapplication for the exclusion of evidence under s. 24(2) of the Charter. Mr. Roy is not seeking the exclusion of evidence. If that werethe case, R. v. Bjelland, supra, would apply. Rather, Mr. Roy is seeking a stay of proceedings under s. 24(1) of the Charter. 38. An accused is not entitled to a stay of proceedings simply because he was deprived of relevant evidence.

A stay ofproceedings can be ordered only if the accused can show that he was materially prejudiced by the lost evidence: R. v. Sheng 2010 ONCA296 , [2010] 254 C.C.C. (3d) 153 (C.A. Ont) 39. A stay of proceedings is a last resort remedy to be taken when all other acceptable avenues of protecting the accused’s rightto full answer and defence are exhausted. It is reserved for and appropriate in only the clearest of cases. It is therefore very unusual fora court to grant one. 40. In this case, Mr. Ben Sassi has undoubtedly suffered a financial loss. The adjournment of his trial will give rise to additionalexpenses.

It is unfortunate, but expenses arising from court appearances are to be expected. Every case is unique. The number ofappearances and the scope or nature of proceedings cannot always be accurately predicted at the outset. That is the nature of things inProvincial Court; the possibility of adjournments is to be expected despite all the effort that goes into limiting their number. 41. Mr. Ben Sassi is also concerned that the witnesses’ memories, including his own, may erode with the passage of time,although he does not specify why.

As I see it, this concern is alleviated by the existence of the video in question, which should faithfullyreproduce the communication and interactions between the parties at the time of the alleged offence. 42. I do not believe that Mr. Ben Sassi, who will no doubt suffer monetary harm, will suffer any substantial prejudice if theprosecution is granted an adjournment of the trial. 43. Furthermore, a stay of proceedings is not the appropriate remedy in this case. A stay of proceedings is meant to prevent anabuse from being perpetuated or aggravated.

The Court must find that no other remedy is reasonably capable of removing the prejudicein question. In this case, the police force was unable to copy the original of a video. Instead of taking steps to try to find anothersolution, it simply informed defence counsel that the video could not be copied. The Bathurst Police Force now knows that there isanother solution if a video cannot be copied. As a result, there is no need to order a stay of proceedings as a remedy to prevent an abusethat is being perpetuated or aggravated. 44.

Finally, the Court must conclude that continuing this matter does not render the trial unfair. Mr. Roy has received the videoin question. In my view, the infringement of the right to disclosure can be remedied by an adjournment. There is no need for relief tomaintain the integrity of the justice system. 45. The order sought is denied.

Dated at Bathurst, this 31st day of March 2016. Ronald LeBlanc Judge of the Provincial Court