Her Majesty the Queen - v. -, 2021 SKPC 42

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2021 SKPC 42 Date: September 21, 2021 Information: 90416903 Location: Broadview/Moosomin _____________________________________________________________________________ Between: Her Majesty the Queen - and - Andy Robert Brown Appearing: Todd Wellsch, Q.C. For the Crown Alan Pearse For the Accused JUDGMENT M. GORDON , J [ 1 ] On or about the 2nd day of October, A.D. 2020, at Moosomin in the Province of Saskatchewan, did: Count 1: Operate a conveyance while ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug, contrary to

section 320.14(1) (

a) of the Criminal Code . Count 2: Have a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood within two hours after ceasing to operate a conveyance, contrary to

section 320.14(1) (

b) of the Criminal Code .

[ 2 ] Andy Robert Brown is charged with two offences namely:

section 320.14(1) (

a) of the Criminal Code (impaired conveyance) and

section 320.14(1) (

b) of the Criminal Code (at or over “.08”. [ 3 ] Prior to trial, defence counsel served and filed a Charter notice, alleging numerous breaches of the accused’s Charter rights and asking for a stay of proceedings or for the exclusion of all evidence subsequent to the breach. [ 4 ] By agreement between counsel, the trial proceeded as a blended Charter voir dire and trial. The Crown called all of its evidence on the voir dire . The defence called no evidence. The defence advised they would not call any evidence on the trial. All admissible evidence on the voir dire is to be applied to the trial proper.

After submissions by counsel I reserved my decision. [ 5 ] There is no issue as to the date, time and place of the alleged offence or with the identity of the driver. [ 6 ] The first issue I will deal with is whether there has been a breach of the accused’s rights under

section 7 of the Charter . If so, the accused asks for a remedy under s. 24(1) of the Charter ; namely a stay of proceedings . [ 7 ] There is no dispute that counsel for the accused asked for full disclosure including any video from the RCMP on October 18, 2020. [ 8 ] Robert McClymont, a civilian member with “F’ Division technical services explained the situation as best that he could. McClymont is familiar with the electronic security systems that are installed in all RCMP detachments in Saskatchewan. On October 7, 2020 his unit received information from the Moosomin RCMP that recorder “B” was no longer working.

The video recording of June 17, 2020 was retrievable but no data was recoverable. It is not known whether it ever existed. [ 9 ] On October 13, 2020 the Mitsubishi equipment was replaced with a new Panasonic Network video recorder. The failed Mitsubishi recorder was kept in storage six months. The two hard drives on the Mitsubishi recorder can wear down and fail over time. This appears to be what occurred. There is no way of telling when this failure occurred. [ 10 ] As of October 7, the RCMP knew it was not working. Whether the video had been looked at October 7 or 19, it would have made no difference.

The nature of the hard drive did not change. There is no way of knowing, according to McClymont, if there was anything recorded or not. [ 11 ] The RCMP is gradually upgrading all video equipment, however 57 detachments out of 108 still use the Mitsubishi recording system. There is no overall replacement plan other than to replace when the budget allows. [ 12 ] The defence argues that the RCMP was negligent in failing to replace these hard drives sooner when it knew they were wearing out and that replacement was inevitable.

In fact the technical people at “F” Division predicted this event. [ 13 ] Defence counsel argued that video evidence of the intoxilyzer room is crucial, if an accused person is ever going to be able to challenge the functioning of the equipment. It is possible the video evidence could provide the necessary “evidence to the contrary.” As a result counsel urges this court to grant a stay of proceedings. [ 14 ] The Crown submits there has been no Charter breach. The onus is on the defence to establish that there has been actual prejudice and the accused right to a fair trial compromised.

In addition, the Crown argues that even if this court found a breach, a stay of proceedings should only be granted in the clearest of cases and this is not one. [ 15 ] Both counsel referred and filed the leading cases in this area and I thank them for their assistance.

Analysis [16] The Crown is obligated to disclose all relevant non-privileged information in its control so as to allow the accused to makefull answer and defence (R v Stinchcombe, (SCC), [1991] 3 SCR 326, [Stinchcombe]). [17] I find that there is nothing in the evidence to indicate that the video recordings could be useful to Mr. Brown making fullanswer and defence. The defence suggests it is possible but I am not satisfied it was probable or has any basis in fact.

There was noevidence to suggest that the police knew the equipment was not properly functioning. [18] R v Carosella, (SCC), [1997] 1 SCR 80 states at para. 76 [Carosella]: [76] A long line of jurisprudence has affirmed that an accused has a responsibility to establish a real likelihood of prejudice to hisdefence as a result of an absence of relevant material. In fact, appellate courts in this country are virtually unanimous in their treatment ofthese situations.

The Ontario Court of Appeal, for example, has consistently held that there "must be an air of reality that the missingevidence would in fact and in a material way assist the accused": R. v. A. (D.) (1992), (ON CA), 76 C.C.C. (3d) 1, atp. 8; R. v. Santocono (1996), (ON CA), 28 O.R. (3d) 630. It has also been stated that what must be demonstrated "on abalance of probabilities is that the missing evidence creates a prejudice of such magnitude and importance that it can be fairly said toamount to a deprivation of the opportunity to make full answer and defence": R. v. B. (D.J.) (1993), 16 C.R.R. (2d) 381 (Ont.

C.A.), at p.382. In R. v. A. (D.), supra, at p. 9, Dubin C.J.O. adopted the reasoning of Campbell J. in R. v. Finta (Ont. S.C., April 24, 1990(unreported)) who stated: The defence does, however, have a burden to show that the lost evidence is likely to preclude a fair trial. It is a first step in dischargingthat burden to show what the evidence is, to show that there is more than a basis in speculation to say what, in fact, the lost evidence is orthat the lost witness would, in fact say. A burden to show that the lost evidence is relevant and material.

A burden to show that it issubstantial or significant in the sense it is not trivial or frivolous or tenuous. It is a first step of this motion to show that the lost evidencewould more likely than not tend to rebut some evidence of the Crown's case or would more likely than not tend to assist the accused.

If the evidence points to the innocence of the accused that would, of course, satisfy this pre-condition but it is not necessary the evidencego that far and actually point to the innocence of the accused as opposed to merely assisting the accused or tending to rebut someevidence or some element of the Crown's case. It is, however, with those cautions, necessary to make some assessment of the potential value to the accused of the lost evidence.

If thereis no demonstration that the evidence would help him or if it appears that the evidence might just as easily hurt the accused more than itwould help him, that tends to rebut any claim that its loss would preclude a fair trial to the accused. There must be an air of substantial reality about the claim that any particular piece of lost evidence or all of it cumulatively togetherwould actually assist the accused in his defence.

If there is no such air of substantial reality, it cannot be said the delay which causedthe loss of evidence is likely to preclude a fair trial for the accused. [Emphasis added.] [19] In R v Gilchrist, 2011 SKQB 445, 387 Sask R 230 [Gilchrist] (leave to appeal denied) at para 19 adopts this approach. [19] The relevance of the videotape to Mr. Gilchrist's ability to make full answer and defence is not apparent at this time. Its possiblerelevance may be speculated upon, but a prosecution is not to be stayed on the basis of speculation.

As Justice McLellan said in Banfordat para. 5, "there must be a reasonable possibility that the information could be useful to the accused in making full answer and defence." [20] R v La, (SCC), [1997] 2 SCR 680 discusses the duty of the Crown and the police to preserve the “fruits ofthe investigation”. Stinchcombe recognizes that on occasion despite the best efforts of the Crown or police, evidence will occasionallybe lost. [21] The Court must look at all the circumstances to determine whether the police took reasonable steps to preserve the evidencefor disclosure.

In R v Sawchuk, 2019 ABQB 252, the video was recorded. One of the hard drives failed and the footage from the areawas entirely lost due to hardware failure. At para. 82 Madam Justice Horner concluded “That is an unfortunate reality of relying ontechnology to capture evidence.” Sometimes it will fail. There is no evidence to suggest that the hardware was mishandled or mistreatedby CPS members. This evidence was not lost due to unacceptable negligence.

[22] In the within case, Moosomin RCMP detachment notified “F” Division technical unit when it first became apparent to themthat the equipment was not recording. The video footage was reviewable to determine if any recording was retrievable. The footage didnot deteriorate or change between October and January. Mitsubishi recorders were being replaced as budget allowed. There was noevidence to suggest that the hard drives in Moosomin were giving problems or needed immediate replacement. In fact over half thedetachments in Saskatchewan still had the Mitsubishi system.

The fact that there replacement system involved the installation ofPanasonic equipment with more cameras is of no consequence here, other than showing the ever changing nature of technology. [23] I do not accept defence counsel’s argument that there possibly could have been some evidence lost that was helpful to theaccused. There is no evidence to suggest that any information that may have been on videotape (and we do not know) could in any waybe useful to Mr. Brown in making his answer and defence. The video was some time after Mr. Brown had been found in his vehicle andthe alleged occurrence of the offence.

This brings me back to the comments in Carosella supra, and in my view the defence has notdemonstrated on a balance of probabilities that the potential missing evidence deprived the accused from making full answer anddefence. [24] R v O’ Connor, (SCC), [1995] 4 SCR 411 states that a stay of proceedings will only be granted in the“clearest of cases”. R v Babos, 2014 SCC 16, [2014] 1 SCR 309 [Babos] and states that cases of this kind fall into two categories:

(1) Where the state conduct comprises the accused’s right to a fair trial;

(2) Where the state conduct risks undermining the integrity of thejustice system. [25] The test to determine whether a stay of proceedings is warranted is set out in Babos at para. 32: The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

(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,perpetuated or aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(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 theinterests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “theinterest that society has in having a final decision on the merits” (ibid., at para. 57). [26] The case law is clear that even where there is negligence on part of the Crown (which is not the case here), a stay is notautomatic.

In R v Lipovetsky, 2007 ONCJ 484 at para 19 Judge Kenkel stated: Even where there is negligence on the part of the Crown,the loss of a videotape does not automatically violate the Charter. A Charter breach is established only where the lost evidence isshown by the applicant to be relevant to the issues at trial. See R v Dulude (ON CA), [2004], 189 CCC (3d) 18 at p30 [Ont CA]. Mr. Justice Currie followed this line of reasoning in Gilchrist. A prosecution is not to be stayed on the basis ofspeculation. [27] To be clear, I do not find any negligence by the RCMP.

The evidence I accept is that the malfunction was reported as soon itwas discovered. Just because there is newer and apparently better equipment available does not mean that old equipment that is workingshould be replaced. The only aspect which is curious to me, is not this equipment has no warning system when it is not working – homesmoke alarms beep!

But that is not the fault of the police. [28] Therefore, I do not find a Charter breach based on the lost evidence argument and even if I did this case does not justifygranting the remedy of a stay of proceedings. [29] The accused’s Charter notice listed a number of issues primarily dealing with the police officer’s demand for making anapproved screening device (ASD) breath demand. [30] The only point the defence argued at trial was that the investigating officer did not have the requisite reasonable suspicion todemand that Mr. Brown provide a sample of his breath pursuant to

section 320.14(1)(

b) of the Criminal Code. Therefore, the defenceargument goes that since the evidence was obtained by an illegal search, the intoxilyzer demand was not authorized and thus awarrantless search and warrantless searches are prima facie unreasonable. This shifts the persuasive burden to the Crown to establishthat the search was authorized by law. The law is reasonable and the search was conducted in a reasonable manner.

[31] In this case, the law authorizing the search is

section 320.14(1)(

b) of the Criminal Code. The Criminal Code was amended in2018 to permit an officer, upon having a reasonable suspicion “…by demand to require a person ..to immediately provide a breathsample [32] The Crown argues this is not a high standard and is based on possibility not probability (R v Yates, 2014 SKCA 52, 438 SaskR 78 [Yates]). The Crown argued that the police officer observed a constellation of factors that satisfy the objective and subjective components of the reasonable suspicion test.

Finally, the Crown argued that even if the court finds a breach, based on a Grant[1] analysis, all the subsequent evidence should not be excluded. The breach was minor, the police officer was acting in good faith andsociety has an interest in the matter being adjudicated on its merits. [33] The defence submits that the observations relied on by the police office including the driver had glassy eyes, flashed his highbeams and said he had something to drink in town, are all ambiguous and should not be relied upon. In particular, the police officer didnot smell any odour of alcohol.

Defence declined to make any submission under section 24(2) of the Charter.

Analysis [34] Drinking and driving prosecutions involve a continuum of findings beginning with a reasonable suspicion that a person hasalcohol in his/her body, the standard for an ASD demand. [35] At the other end, is the standard for conviction, proof beyond a reasonable doubt that the operator’s ability to operate aconveyance was impaired by the consumption of alcohol or that the driver’s blood alcohol concentration is over the legal limit. (R vBush (2010), 2010 ONCA 554 , 259 CCC (3d) 127 (Ont CA)) [36] In Yates at para. 34 Klebuc J.A. sets forth the test: [34] Consequently, the constellation of circumstances need not be sufficient to prove the detained person actually has alcohol in his orher body.

Nor should each circumstance in the constellation be separated, analysed and evaluated apart from the constellation. Rather,the adequacy of a police officer’s suspicion is to be assessed under the de novo analysis called for in R. v. MacKenzie using this test:would a reasonable person, standing in the shoes of the investigating police officer and aware of all of the objectively verifiableevidence, reasonably suspect the driver had alcohol in his or her body?

The reviewing court is not to consider whether the investigatingofficer’s suspicion was accurate or whether other inferences could be drawn from the constellation of circumstances, or to considerwhether the investigating officer could have taken further steps to confirm or dispel a prima facie reasonably held suspicion that alcoholwas present in the driver’s body.

It is an error in law to dissect the constellation of circumstances and individually test each circumstanceor the absence of other circumstances. [37] The absence of a particular indicia does not necessarily vitiate the reasonableness of the investigating officers suspicion whereother evidence affirms an objective basis for same. (R v Lehne, 2019 SKQB 314 at para 43 and R v Nahorniak, 2010 SKCA 68. Achecklist of the usual signs should not be utilized in examining whether the police officer had the necessary suspicion.

The standard forreasonable suspicion required for an ASD demand is low and quite different than reasonable and probable grounds required for anintoxilyzer demand. [38] A reasonable suspicion is more than a hunch but less than a belief on a balance of probabilities. A reasonable suspicion needonly be one of a number of conclusions based on supporting facts. R Chipchar, 2009 ABQB 562, it does not require certainty. Anadmission of one drink late at night and leaving the bar was held to be sufficient.

R v Drysdale, 2013 SKQB 392, 432 Sask R 46. [39] Based on the investigating officer’s uncontradicted evidence, I conclude that the reasonable suspicion test has been met. Considering all of the observations including the admission of drinking, the objective and subjective elements are present. [40] The defence did not make any submissions with respect to any other aspects of the ASD demand requirements. Therefore,there is no need to discuss them in this decision. I am satisfied there have been no Charter breaches.

[ 41 ] All evidence on the Charter voir dire will be applied to the trial proper which includes the certificate of analysis showing the accused’s readings to be over the legal limit. [ 42 ] Therefore I find Mr. Brown guilty of the offence pursuant to

section 320.14(1) (

b) of the Criminal Code . [ 43 ] The Crown entered a stay on the impaired charge. ___________________ M. Gordon, J