Ontario Criminal


No evidence that accident was caused by mechanical failure

Appeal by accused from his convictions for impaired and dangerous driving. Accused drove large 18-wheel tractor trailer in residential neighborhood above speed limit and, after he went through red light and made turn, truck tipped over on its side. Police officer, who followed truck, saw accused emerge from it and he staggered on his feet and smelled strongly of alcohol. Other officers who arrived made similar observations. Accused did not challenge trial judge’s findings regarding impaired and dangerous driving. Only alleged error was correctness of judge’s ruling that accused’s application under s. 7 of Canadian Charter of Rights and Freedoms should be dismissed. Charter issue concerned failure of police to preserve accused’s vehicle. Truck should have been preserved so that it could be tested to determine whether defective brakes or steering were contributing causes of accident. Judge did not rely on accident itself, or make any findings as to cause of accident, as indicia of impaired or dangerous driving. After police completed their investigation they handed custody of truck over to towing company. Truck was scrapped because owner of truck and insurance company did not want to pay storage fees. Appeal dismissed. Section 7 application was based on alleged breaches of right to disclosure and right to fair trial. Judge’s conclusion, that there was no unacceptable negligence and, therefore, no breach of s. 7 right to disclosure was based on six considerations. These considerations were relevant to fault analysis that had to be conducted on s. 7 Charter application that concerned unacceptable negligence by state actors. There was no evidence that mechanical failure caused accident and, even if there was some failure, it would not have dismissed alcohol as contributing cause of accident. Accused’s employer, who owned truck, had been given timely notice that it would be sold as scrap, and accused and his counsel had notice, before truck was sold, where it was located. Judge made reasonable findings of fact and they supported his conclusion that there was no unacceptable negligence by police. Accused’s right to fair trial was not violated since there was no evidence that accident was caused by mechanical failure, and stay of proceedings, which was only remedy sought by accused, was not appropriate in this case. Judge, therefore, did not err in dismissing Charter application.

R. v. Hassan (Mar. 3, 2014, Ont. S.C.J., M.A. Code J., File No. CR-12-70000132-00AP) 112 W.C.B. (2d) 534.

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