SECTION 7 - TAPED OVER VIDEO FROM COFFEE SHOP DOES NOT LEAD TO A STAY

As part of his investigation into an impaired driving incident  that started at a coffee shop in Newmarket, an officer went into the coffee shop and asked if the CCTV on the store captured any video. He was told to return the next day and, when he did, he was given a disk with the CCTV footage on from the early morning. The officer put the disk in a property bag and delivered it to the station where it was put with the other disclosure materials. He did not look at the disk. Some three or so weeks later the disk was reviewed by an officer and found to be totally blank. The officer went back to the coffee shop to get a new disk but was informed that the portion had been “taped over" and there was no longer any footage available for the time of the incident.  He believes that he was told that the retention time was some 24 hours.  At trial Mr. Huber alleged that the police were negligent in obtaining a video tape from the coffee shop and that the charges against him should be stayed. The Court did not allow the application: "The only element of police negligence was not in the preservation of the evidence but only in not immediately checking to see is the disk contained the information that they were led to believe was there. The disk itself was preserved and there is no evidence that any police action led to a loss of the information. In hindsight, the immediate review of the disk could have resulted in obtaining a new copy, but it must be remembered that the police did nothing to cause the original problem nor did they do anything to lose the evidence." R. v. Huber, 2013 ONCJ 15