Date: 2014-06-18. Docket: 130113343P1. A.A. Fradsham, J. | Link

This was a voir dire ruling on the allegation that the police intentionally destroyed evidence pertaining to Mr. Sharma’s impaired driving charge. Mr. Sharma was arrested and taken to Calgary Police Service 5 district office. The officer testified that he had to hold on to Mr. Sharma because of his stumbling.  The officer also testified that Mr. Sharma had to be helped between the telephone room and the interview room because of his uncoordinated movements. There are five video cameras that cover the perimeter of the building, one camera that covers the interview suite, cameras in the holding rooms, holding cells and the Commissionaire areas. The footage from the cameras covering the perimeter of the building and the interview suite is stored for 30 days. A request for this video footage must be made within 30 days of the date of the recording. Defence counsel sent the crown two requests for this video footage within the requisite time period, but did not receive any copies of the footage. The cameras in the holding rooms, holding cells and Commissionaire areas are for a person to monitor the room, in real time, but do not record the footage. With respect to the video images which were monitored but never recorded, the court found that these video cameras are the equivalent of the “”real time” field of vision of the security personnel who viewed the monitors”. The police are not obligated to preserve the images and they did not, by choosing not to record these images, destroy evidence. Only video images which are recorded by the policy can be subject to a disclosure request. The court goes on to find that any video showing Mr. Sharma being taken into the Calgary Police Service 5 district office would be relevant to the issues at trial. The Crown’s failure to instruct the officer to secure the video would constitute a breach of Mr. Sharma’s section 7 Charter rights if “the Crown fails to provide some satisfactory explanation for the failure, and if that failure resulted in prejudice to the accused’s ability to make full answer and defence”. Because the Crown led evidence about Mr. Sharma’s swaying and uncoordinated movements, Mr. Sharma’s section 7 Charter right to make full answer and defence was breached by not having access to the recordings. The court therefore excluded the evidence about Mr. Sharma’s walk into the police office.