R. v. Dulude

189 C.C.C. (3d) 18

Facts

ON CA

Charged with impaired driving and refusal to provide a breath sample, pulled over 3 am, taken to police station for breath sample, compliation of 16 cameras in station, tape showing still photos of each location in station approximatlely once very 15 seconds, videotape used for security purpoes and not to record evidence, after 7 attempts breath tech could not obtain breath sample and she was charged. 1 month later, defence counsel request disclosure including all videotapes, four and a half months later accused asked for videotape which was said to be destroyed. Evidence on how tap my have assisted in raising reasonable dougbt, Trial judge stayed proceedings against the accused because her right to full answer and defence had been infringed by the destruction of the videotape. The Crown's appeal to the summary conviction appeal was dismissed.

Reasons

ON CA

The accused's rights to disclosure under ss. 7 and 11(d) of the Canadian Charter of Rights and Freedoms had been infringed by the destruction of the videotape. The videotape was only marginally relevant because it was not designed to record evidence, but was used for security purposes. No sound was recorded by the procedure. Moreover, the taping system involved 16 cameras that recorded brief, one second, images one after the other. If available, it would have showed a series of still photographs of the accused. In any event, the trial judge's findings of the relevance was entitled to deference, given the very low threshold for relevance. The Crown had an obligation to explain why the tape was not disclosed before it was erased. The trial judge ought to have entertianed the motion after all of the evidence had been called at the end of the trial in order that prejudice could properly assesed, tht was no intention that the loss of the evidence was intentional. Each time the mashine registered " deficient sample" Ms. Dulude was then charged with failing to comply with a dmand for a breath sample. VIDEOTAPES ARE USED AT THE SARNIA POLICE STATION ONLY FOR SAFETY AND SECURITY, AND ARE ROUTINELY REUSED AFTER 60 DAYS.

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