Duty to preserve evidence did not oblige police to create evidence

Accused was arrested for impaired driving at roadside and taken to police station, where he refused to provide breath sample. In-car cameras in police car would normally have recorded accused’s arrest and interactions with police, but cameras were not working that night. At trial, accused sought stay of proceedings on ground that absence of in-car footage violated his rights under Canadian Charter of Rights and Freedoms (“Charter”). Trial judge found no breach of accused’s Charter rights and convicted accused of impaired driving and refusing to provide breath sample. Accused appealed. Appeal dismissed. Accused’s argument on disclosure was misconceived. Unlike cases relied on by accused, police did not have material evidence and then lose, destroy, or fail to preserve it. Here, evidence did not exist. Crown could only disclose what it had, and duty to preserve evidence did not oblige police to create evidence. Similarly, whilst it would have been ideal had footage of accused’s arrest and transport existed, police had no obligation to create recording or even turn on camera. Accused did not have constitutional right to adequate investigation. Inadequate investigation did not, in and of itself, equal breach of accused’s right to make full answer and defence.

R. v. Deesasan (2018), 2018 CarswellOnt 11476, 2018 ONSC 4180, S.A.Q. Akhtar J. (Ont. S.C.J.).