



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Abreha, 2019 ONCA 392

DATE: 20190510

DOCKET: C62569

Lauwers, van Rensburg
    and Trotter JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Daniel Abreha

Appellant

Geoff Haskell, for the appellant

Susan Reid, for the respondent

Heard: April 26, 2019

On appeal from the conviction entered by Justice Robert
    A. Clark of the Superior Court of Justice, sitting with a jury, on February 14,
    2014, and from the sentence imposed on October 3, 2014.

REASONS FOR DECISION

[1]

The appellant was convicted of numerous firearms offences arising out of
    an incident in downtown Toronto when he attempted to discard a loaded handgun.
    He was subsequently sentenced to five and a half years in jail, less credit for
    pre-sentence custody. He appeals his conviction and sentence.

(1)

The conviction appeal

[2]

The appellant challenges his conviction on the basis that the trial
    judge erred in failing to grant a stay of proceedings based on the failure of
    the police to preserve relevant evidence, contrary to s. 7 of the
Charter
.
    In the proceedings before the trial judge, the focus was on the failure of the
    police to secure video footage from its own CCTV cameras and video footage from
    private businesses, as well as the failure of the police to ascertain the
    identity of, and obtain statements from, witnesses. On appeal, we are only
    concerned with the police CCTV footage.

[3]

In the early morning hours of October 22, 2012, the police were
    patrolling an area of downtown Toronto known as the Entertainment District. A
    concerned citizen approached a police officer, described a man across the
    street, and said that the man had a firearm in his waistband. The officer soon
    identified the person referred to  it was the appellant. He was talking on a
    cellphone while pacing back and forth on the sidewalk. After making eye contact
    with the officer, the appellant started to walk away.

[4]

Two officers pursued the appellant. One of them drew his service pistol,
    pointed it at the appellant, and yelled at him to show his hands. The appellant
    did not comply. The other officer saw the appellant fiddling with the front of
    his pants as the appellant stood beside a taxi. The officer saw the appellant remove
    a handgun from his waistband, lower his hand to his side, and drop the handgun on
    the pavement. The officers tackled the appellant. Once they had him under
    control, the officers asked the taxi driver to move his vehicle forward. A
    handgun was found on the ground underneath where the taxi had been stopped.

[5]

In the aftermath of this incident, the taxi left the scene. The driver
    was not identified. The concerned citizen who initially approached the police
    refused to reveal his identity. He too left the scene.

[6]

On the
voir dire

pertaining to the application for a
    stay, it was common ground that there are police CCTV cameras in the
    Entertainment District. They scan certain areas and record activities. There
    was a CCTV camera located close to where the appellant was arrested. The trial
    judge found that the CCTV camera continuously turns in a clockwise direction,
    rotates through a number of sectors, pausing in each for a matter of a few
    seconds, and zooms in and out.

[7]

The CCTV system has limited memory capacity. The video footage captured
    by the system is overwritten every 72 to 96 hours. None of the officers
    involved in this case attempted to secure video footage from this CCTV camera.

[8]

On the
voir dire
, the appellant testified that he dropped a
    cellphone, not a gun. He stated that he was aware of the nearby CCTV camera and
    told the arresting officers to check the camera footage to confirm his assertion.
    Both officers denied this claim, noting that the appellant remained silent during
    and after his arrest. The trial judge rejected the appellants evidence on this
    point, and gave reasons for doing so.

[9]

The first time that access to the CCTV footage was raised was at the
    preliminary inquiry, held in April of 2013. A formal request for disclosure was
    made in June of 2013. By that time, the footage was long gone.

[10]

On
    the
voir dire
, the Crown produced a sample video from the same
    camera system located near the scene of the arrest. The sample video was
    created in late 2013. Based in part on the sample video, the trial judge found
    that it was unlikely that the cameras would have assisted in clarifying what
    the appellant dropped just before he was apprehended by the police.

[11]

In
    dismissing the application to stay proceedings, the trial judge identified the
    framework for lost evidence applications articulated in
R. v. Bero
(2000), 151 C.C.C. (3d) 545 (Ont. C.A.);
R. v. La
, [1997] 2 S.C.R. 680;
    and
R. v. Dixon
, [1998] 1 S.C.R. 244. This framework was restated in
R.
    v. Hersi
, 2019 ONCA 94, in which Doherty J.A. said, at para. 26, that the
    loss or destruction of evidence in the possession or control of the police will
    result in a breach of s. 7 when: (1) the material was disclosable under the
    standard set out in
R. v. Stinchcombe
, [1991] 3 S.C.R. 326; and (2) the
    prosecution fails to show that the loss or destruction was not the consequence
    of unacceptable negligence by the police: see also

La
, at
    para. 22; and
Bero
, at para. 30.

[12]

The
    appellant argues that the trial judge erred in the application of these
    principles by reversing the burden of proof. Although the trial judges reasons
    may not have adhered strictly to the framework set out above, we are satisfied
    that he reached the correct result in finding that there was no breach of s. 7,
    let alone one that warranted a stay of proceedings. As Doherty J.A. said in
Hersi
,
    at para. 25, a stay of criminal proceedings is the appropriate remedy only in
    extraordinary circumstances.  In oral argument, counsel for the appellant
    acknowledged that, if there were a breach, standing alone this was not one of
    the clearest of cases warranting a stay of proceedings.
[1]
We agree with this assessment.

[13]

Ultimately,
    the appellant received a remedy. In his charge to the jury, the trial judge
    provided an instruction on the failure of the police to preserve relevant
    evidence. After reviewing the relevant evidence, he said: The effect that the
    unavailability of any such evidence may have on the Crowns obligation to prove
    the case against the accused will be for you [the jury] to say.

[14]

This
    type of instruction is recognized as a remedy for failure to preserve evidence
    that results in a breach of s. 7 of the
Charter
: see
Bero
, at
    para. 67. The trial judges instruction closely aligns with the model
    instruction in David Watt,
Watts Manual of Criminal Jury Instructions
,
    2nd ed. (Toronto: Carswell, 2015), at p. 432 (Final 43  Lost, Destroyed or
    Unpreserved Evidence). To the extent that the appellant suffered any prejudice
    from the failure to preserve the CCTV footage, it was cured by this
    instruction.

[15]

The
    appeal from conviction is dismissed.

(2)

The sentence appeal

[16]

At
    the hearing of the appeal, we were advised that the appellant has served his
    sentence. Nevertheless, he wished to proceed with his sentence appeal in the
    hope that the court might clarify an issue concerning the calculation of pre-sentence
    custody. Given that the appeal from sentence is effectively moot, we leave this
    issue for another day.

[17]

Leave
    to appeal sentence is refused.

P. Lauwers J.A.

K. van Rensburg J.A.

Gary Trotter J.A.





[1]

The appellant argued that this case, when considered alongside
    the case of
R. v. Miniaci
, 2011 ONCJ 491, discloses a pattern of conduct
    relating to a failure by police to secure CCTV footage from the Entertainment
    District. Given our finding in this appeal, it is unnecessary to consider this
    submission.


