>-----Original Message-----
>From: YUFA in solidarity with CUPE 3903
[mailto:YUFA-CUPE@YorkU.CA]On
>Behalf Of Marcia I Macaulay
>Sent: November 24, 2000 7:22 PM
>To: YUFA-CUPE@YORKU.CA
>Subject: Re: (Fwd) Safety on picket
lines
>
>
>The first 'and' in the last sentence is
an andof sequence, while the
>second is an 'and of result." By using an additive construction like
>this, the judge has avoided assigning
blame to the accused. marcia.
>
>On Fri, 24 Nov 2000, Bruce Flattery
wrote:
>
>> Nuri just posted an interesting
item to the senate list, which I take
>> the liberty of posting here. What interests me is the
>> grammar/syntax/logic of the
judge's perception of what actually
>> happened:
>>
>> "OVERVIEW TO THIS STAGE
>>
4 On March 24, 1997, members
of the Faculty at York University
>> were involved in labour action on
the grounds of the campus at York
>> University. The complainant and
other York faculty persons were
>> involved in a picket line near the
Shoreham Drive entrance to the
>> university. A motor vehicle being operated by the
accused was coming
>> into the grounds, and while going
through this picket line, vehicles
>> were being stopped by the
picketers and while the accused was
>> attempting to drive into the York
grounds, his vehicle was
>> intentionally kicked by the
complainant. The accused disembarked
from
>> his vehicle, and when he and the
complainant came together, the
>> complainant received a push, and
ultimately fell to the ground where,
>> unfortunately, her leg was
broken."
>>
>> Notice who is doing what: Laurie
Betts ("the accused") is driving his
>> car and Allison Griffith is
kicking it, but no one is doing the
>> pushing or
"unfortunately" breaking her leg.
Geez!
>>
>> Bruce
>>
>>
>>
>> ------- Forwarded Message Follows
-------
>> Date: Fri, 24 Nov 2000 09:06:35 -0500
>> Reply-to: nuri jazairi <nuri@YorkU.CA>
>> From: nuri jazairi <nuri@YorkU.CA>
>> Organization: York University
>> Subject: Safety on picket lines
>> To: SENATE-L@YORKU.CA
>>
>> Following the many questions and
comments made at Senate mtg
>> yesterday about the role of the
Security Services at York in some
>> alleged breaches on picket lines,
I checked the records last night
>> about a security breach during the
1997 YUFA strike in which the
>> police brought criminal charges
against a student for assaulting a
>> faculty member at the Shoreham
Drive picket.
>>
>> At the Senate mtg in May 1998,
President Marsden told the Senate "The
>> Complaint Centre has been advised
that charges against a member of the
>> community alleged to be involved
in a serious incident on the picket line
>> during the YUFA strike have been
stayed." (as stated in the Minutes.)It
>> was an ambigious statement that
went unnoticed at the time.
>>
>> Then I saw by chance in one of the
legal databases, the court decision
>> in the case which seems to blame
York Security personnel for the loss
>> of evidence in the case. For
example, the judge said:
>>
>> >>
>> "On the facts here, I believe
that there has been a breach of the
>> accused's rights, and that the
loss of this tape is as a result of
>> gross negligence by the York
university security, and there has been no
>> plausible or even minimally
reasonable explanation by York as to why,
>> after all of these police requests
to preserve the tape, that they
>> apparently allow it to go back
into the taping cycle."
>> >>
>>
>> YUFA raised the issue of the
assault again at Senate mtg in November 1999
>> following publicity given to the
court decision in the case. The minutes
>> of that mtg states that
"Vice-President Clark noted that an investigation
>> was held following the
disappearance of the tape. New procedures are in
>> place to ensure that security
tapes identified as potential evidence will
>> be safely stored, and that the
police will be notified of their
>> existence."
>>
>> Let us hope that Vice-President
Clark's "new procedures" to protect tapes
>> and potential evidence, will help
in establishing the truth about
>> allegations of security breaches
on the picket lines this time around.
>>
>> Nuri Jazairi
>>
>> The full text of the decision as
published by QL database is below:
>>
>> >>
>> Indexed as:
>> R. v. Betts
>>
>> Between
>> Her Majesty the Queen, and
>> Laurie Betts
>>
>> [1998] O.J. No. 2227
>>
>> Ontario Court of Justice
(Provincial Division)
>> Toronto, Ontario
>> Bassel Prov. J.
>>
>> May 6, 1998.
>> (7 pp.)
>>
>> Counsel:
>> David Wright, for the Crown.
>> Eugene Battacharya, for the
accused.
>>
>> BASSEL PROV. J.:-
>> THE CHARGE
>>
1 Laurie Betts stands
charged that he on or about the 24th day of
>> March 1997 in the Municipality of
Metropolitan Toronto did commit an
>> assault on Allison Griffith
causing bodily harm, contrary to the Criminal
>> Code. The Crown elected to proceed summarily and Mr. Betts
>entered a plea
>> of not guilty.
>> THE MOTION
>>
2 Counsel for Betts brought
a motion for an Order staying the
>> prosecution on a number of grounds
as set out in his Notice of
>Application
>> dated the 7th day of January,
1998.
>>
3 Those grounds include that
a video tape which was caused to be
>> taken by the security officials of
York University of certain events at
>> the place of the incident, has not
been produced or disclosed to the
>> Defence notwithstanding timely
requests for disclosure, and that as a
>> consequence of the non-disclosure,
there has been irreparable
>prejudice to
>> the right of the accused to make
full answer and defence to the
>charge. I
>> have not set out here all of the
grounds which were included in
>the Notice
>> of Application, and submissions of
Counsel, but I have carefully reviewed
>> and considered all of them.
>> OVERVIEW TO THIS STAGE
>>
4 On March 24, 1997, members
of the Faculty at York University were
>> involved in labour action on the
grounds of the campus at York
>University.
>> The complainant and other York
faculty persons were involved in a picket
>> line near the Shoreham Drive
entrance to the university. A motor
vehicle
>> being operated by the accused was
coming into the grounds, and
>while going
>> through this picket line, vehicles
were being stopped by the
>picketers and
>> while the accused was attempting
to drive into the York grounds, his
>> vehicle was intentionally kicked
by the complainant. The accused
>> disembarked from his vehicle, and
when he and the complainant came
>> together, the complainant received
a push, and ultimately fell to the
>> ground where, unfortunately, her
leg was broken.
>>
5 Two members of the York
University crime prevention support
>> services were making observations
from their unmarked vehicle, and when
>> the incident started, one of the
security officials made a radio call to
>> his dispatcher. We heard that
there is a high mounted camera located in a
>> nearby parking lot, normally
intended to monitor the goings on in the lot
>> proper, but that as a result of
the radio call, the camera was turned on
>> to the area of the picketers and
this incident, and a video taping was
>> created, in what was described as
a stop action video, taking
>pictures not
>> as full non stop motion, but by
stop action sequences. The police were
>> called and investigated, and the
two police officers who attended on the
>> scene both attended the York
University Security offices and viewed the
>> tape in question. The evidence from the officer is that he
asked the
>> security officials to hold the
tape for viewing by the detectives. The
>> Metro police officer made it very
clear to York security that
>the tape was
>> to be saved ... A York security
official called by the Crown confirmed
>> seeing the tape the next day, and
his recollection was that the
>portion of
>> the tape relating to this incident
was up to possibly 20 minutes in
>> duration. He testified that the tape was stored after
it was viewed by
>> him, in the area where tapes are
stored, that he was aware that
>the police
>> wanted it to be held, and his
opinion as to its loss was that it was put
>> back into the York security taping
cycle of 31 days. In his words,
"Each
>> tape is used every 31 days, and it
would only be removed if needed for
>> evidentiary purposes." The tape had been left in the charge of the
>> supervisor of the security
office. The York security witnesses did
not
>> make any notes of what was on the
video tape, and there was evidence that
>> York security learned by the next
day that a charge had been laid in this
>> matter. As agreed facts, I was advised that Detective Bradshaw of the
>> Metropolitan Police Services
telephoned Mr. John Stoneman, an official of
>> York university security, 2 days
after this incident, to advise him to
>> have the tape saved and requesting
confirmation to this effect. In
>> addition, that in July 1997, Det.
Bradshaw sent a letter to R.
>Pilkington,
>> On-Site-Manager for York security,
confirming the police request that the
>> tape be saved, and formally
requesting a copy of the video (which was not
>> provided.)
>>
6 Repeated requests were
made by the police during the Fall, to
>> York, requesting a copy of the
video tape, and that in November 1997
>> information is provided to the
effect that the tape in question has been
>> covered by reason of further use
in the cameras (probably placed
>back into
>> the system by April 24, 1997,
which would be part of the 31 day cycle.)
>>
7 At the commencement of these proceedings, both Counsel advised
>> that the Defence Application would
be heard by means of the trial
>> commencing, the Crown calling its
witnesses, and that rather than there
>> being an actual voir dire on this
Application, that the Application would
>> be embraced in the main action,
with the evidence applying on this basis
>> for the application, and, if not
granted, that the evidence
>would apply as
>> part and parcel of the trial
proper.
>>
8 The Crown called 10
witnesses in this matter.
>>
9 These witnesses can be
classified into 3 categories.
>>
10 The first category
involved the complainant and 5 other members
>> of the York Faculty who were also
involved in the picketing and labour
>> action on that day. The second category were 2 York security
>officers who
>> were positioned in an unmarked
vehicle approximately 60 feet away. The
>> third category were 2 Metro Police
officers who attended on the
>scene as a
>> result of a radio call regarding
the incident, and after its occurrence.
>>
11 The Crown closed its
case, and submissions were then
>made on this
>> Application.
>> POSITION OF THE CROWN
>>
12 I do not intend to set
out all of the argument and
>submissions of
>> either the Crown, or defence, both
of which I have carefully considered,
>> however, I will refer here to some
parts thereof. Mr. Wright argues that
>> a stay is wholly inappropriate
here, that there was no such
>wilful conduct
>> or intentional destruction (as in
Carosella) for which the Court there in
>> effect imposed its censure to
protect its process, that the
>evidence which
>> has been lost, is of marginal
relevance at its highest, that this
>> relevance has been fully addressed
by the Crown producing a host of
>> witnesses (many more than would
have otherwise comprised the Crown's
>> case), that there has been a full
and exhaustive cross-examination of
>> these witnesses by the defence,
and that although it is unfortunate that
>> this evidence has been lost, and
recognizing that some prejudice has been
>> suffered by the accused, that the
Crown has provided a fair and
>> alternative remedy and redress to
this problem by providing for
>> examination all of these
witnesses. He also submits that in any
event,
>> the tape does not capture the
actual confrontation of the complainant and
>> Betts, and that it is after the
fact, that all agree that an accused
>> person must receive a fair trial,
but that this does not mean
>that it must
>> be a perfect trial, and that in
doing the balancing between the interests
>> of society in seeing matters heard
on their merits, and the interests of
>> individual accused persons to
ensure that they receive a fair trial, that
>> the accused here will and has
received a fair trial, and that a stay of
>> proceedings, being the ultimate
remedy given by the Court,
>should not, and
>> need not be given here, because
this is not one of those "clearest of
>> cases" where a stay is
warranted.
>> POSITION OF THE DEFENCE
>>
13 I will not repeat all of
his submissions, including
>those set out
>> in his Notice of Application,
filed, but I will make some brief reference
>> here to some of his argument.
>>
14 He requests of the Court
that either a stay be granted,
>or in the
>> alternative, that the Court should
draw an adverse inference as against
>> the Crown's case in such matters
as the number of picketers in and around
>> the Betts car, the conduct of the
picketers there, and the number of
>> picketers who had picket signs or
placards. He disagrees with the Crown
>> as to the extent of what the video
captured, and he submits that
>there are
>> contradictions between certain
Crown witnesses on matters including the
>> number of picketers present, the
number who bore signs, whether the
>> complainant bore a sign. He
submits that without the tape to be
>viewed, we
>> are unable to examine the
existence or not of tension on the picket line,
>> that hearing of Cribbs banging on
his car, Gardenia blocking his car, and
>> people around the car, that we are
unable to determine whether
>Betts had a
>> reasonable apprehension of fear
for his safety either from the
>> complainant, or other picketers,
that we do not see how the picket line
>> itself was being conducted,
allowing cars through easily, or with their
>> progress impeded, or the manner of
the accused's driving, or
>what were the
>> traffic conditions. Without the video, he submits that the Court
cannot
>> determine whether there was an
intervening act of the curb which caused
>> the complainant to trip and fall
and get injured, and that those
>distances
>> of positions of the accused, his
car, the complainant, the curb,
>all would
>> be independently monitored by the
video tape, and that this information
>> and evidence could impact in a
major way on whether, (the defence
>> conceding that the accused did
have physical contact with the
>> complainant), if criminal liability
is attached to the accused's conduct,
>> was it common assault or assault
bodily harm. He further submits that
>> there is a real issue as to
whether those Crown witnesses who viewed the
>> tape actually rewound it back to
its very beginning to see it all.
>> THE LEGAL PRINCIPLES APPLICABLE AS
TO DISCLOSURE
>>
15 The law is clear that the
Crown has an obligation to
>disclose all
>> relevant information to the
defence, and this does not just mean
>> disclosure of that material which
the Crown proposes to utilize in the
>> prosecution. At the pre-trial stage, the issue of
relevance is whether
>> there is a reasonable possibility
that withholding the material would
>> impair the ability of the accused
to make full answer and defence.
>> Stinchombe (1991), 68 C.C.C. (3d)
1 S.C.C.
>>
16 The Crown would be
entitled to withhold information in a
>> situation to protect the identity
of an informer or in a situation of
>> privilege, neither of which are
relevant considerations in this case.
>>
17 The Crown's duty to
disclose all relevant information in its
>> possession gives rise to an
obligation to preserve relevant evidence.
>> When the prosecution has lost
evidence that should have been disclosed,
>> the Crown has a duty to explain
what has happened to it. If the
>> explanation satisfies the trial
judge that the evidence has not been
>> destroyed or lost owing to
unacceptable negligence (my italics), the duty
>> to disclose has not been
breached. The Crown fails to meet its
>disclosure
>> obligations where it is unable to
satisfy the judge and Section 7 is
>> accordingly breached.
>>
18 The court, in determining
whether the Crown's
>explanation, if any
>> is offered (my italics), is
satisfactory, should analyze the circumstance
>> surrounding the loss of
evidence. The main consideration is
whether the
>> police or Crown took reasonable
steps to preserve the evidence for
>> disclosure. The relevance that the evidence was
perceived to have at the
>> time must be considered.
>>
19 As the relevance of the
evidence increases, so does the
>degree of
>> care for its preservation that is
expected of the police. However, while
>> broad and complete disclosure is
the rule, not every failure to disclose
>> will necessarily amount to a
constitutional violation. R. v. La (sub
nom
>> Vu) (1997), 116 C.C.C (3d) 97
S.C.C.
>> REASONS & CONCLUSION
>>
20 On this application, it
is always easy, in hindsight to sit like
>> a Monday morning quarterback and
expound on what should and should not
>> have been done. It is indeed unfortunate that the attending
police
>> officers, recognizing that the
detectives might or would want to see the
>> tape, did not once and for all
take possession of the original
>tape at the
>> time, or, if necessary, obtain a
search warrant and seize the tape and
>> keep it in their possession for
the purposes of the prosecution. The
>> incident occurred on March 24th,
police arrived on the scene just after
>> the confrontation between Betts
and Griffith, the Information
>was sworn on
>> March 27th, 1997. There would not be much doubt but that a
criminal
>> investigation was taking place,
and indeed the police tell York security
>> right away to hang on to the
tape. York security knew at the latest
one
>> day after the incident, that a
charge is going to be laid, and indeed,
>> would it not be clear to York
security right from the incident
>itself that
>> this tape was important and
relevant, and should be carefully held? P.C.
>> Pengelly tells us that the tape
was out and in a separate unit, and that
>> at the time of his initial
attendance at the security office when he
>> viewed the tape that he told the York
security officers to save
>the video.
>> Two days later Det. Bradshaw calls
John Stoneman, an official of York
>> security to ensure that the tape
be saved, and indeed Det. Bradshaw makes
>> a number of further inquiries in
that regard, to no avail.
>>
21 There is no suggestion
that Defence counsel has not pursued
>> diligently his request for
production of the tape. With the exception of
>> their not having taken the tape
from York, it is hard to lay fault on the
>> Metro police, because they are
after all, assured by York that the tape
>> will be held in a separate place.
>>
22 In this case, the tape
has been lost or indeed, erased by
>> re-insertion into the system. There is no suggestion that it was done
>> wilfully or with a view to its
intentional erasure, however it is gone.
>> The loss of that tape and
resultant failure to produce to the accused
>> either from the Crown or a third
party, is a breach of the constitutional
>> right encompassed by Section 7 of
the Charter. As stated in Carosella, in
>> order to establish a breach, the
accused is not required to show how his
>> defence is prejudiced where the
complaint is the non-production of
>> material he has not seen. On the facts here, I believe that there has
>> been a breach of the accused's
rights, and that the loss of this tape is
>> as a result of gross negligence by
the York university security,
>and there
>> has been no plausible or even
minimally reasonable explanation by York as
>> to why, after all of these police
requests to preserve the tape,
>that they
>> apparently allow it to go back
into the taping cycle. The police
should
>> have taken the tape at the outset,
but surely, the York security, who, by
>> their very terms of reference of
security, and duties as crime prevention
>> support services, and presumably
their training, and being told by 2
>> police officers to hold on to the
tape, and knowing that a
>charge is going
>> to be laid, and being contacted by
Dt. Bradshaw, surely it would be
>> patently obvious to York that the
tape is important and should be
>> preserved by them for the
police. There is no reasonable
explanation, in
>> all of the circumstances here as
to the erasure and loss of this
>evidence.
>> The police chose to follow a
procedure to leave the tape with York
>> security, and therefore I believe
that the gross negligence of York
>> attaches to the police and the
Crown, for the purposes of this
>> Application.
>>
23 This was not a separate
third party situation in which
>the police
>> are not aware of the tape which is
lost by the third party.
>>
24 Having found that there
has been a breach of the accused's
>> Section 7 rights, the next
question to be addressed is as to what is the
>> appropriate remedy. I agree that the Crown has brought forward a
number
>> of witnesses in order to try and
heal or remedy the loss of this
>evidence,
>> and has afforded the accused the
right of full cross-examination of these
>> witnesses. Nonetheless, I believe that the ability to
have viewed the
>> events in this tape would have
been of great value and assistance to the
>> Court. I refer to the words of Cory J., in R. v. Nikolovski [1996] 3
>> S.C.R. 1197 at Page 1210, where he
outlines the value of videotaped
>> evidence as follows:
>> "The video camera on the other hand is never subject
to stress.
>> Through tumultuous events it
continues to record accurately and
>> dispassionately all that comes
before it. Although silent, it remains a
>> constant, unbiased witness with
instant and total recall of all that it
>> observed. The trier of fact may
review the evidence of this
>silent witness
>> as often as desired. The tape may be stopped and studied at a
critical
>> juncture."
>>
25 The witnesses are by no
means ad idem on a number of matters
>> which are relevant and important,
including the number of picketers
>> present, the number who are
bearing signs, whether the complainant is
>> bearing a sign, (two witnesses who
viewed the tape came to 2 opposite
>> answers on this), whether the tape
actually picks up the initial
>incident,
>> whether the whole incident on the
tape was actually viewed, i.e., did the
>> viewers of the tape actually
rewind it right back to the beginning, who
>> and how many and how close to the
accused's car were these
>picketers, what
>> was the manner of his driving,
where was the complainant in relation to
>> the curb ... The defence might
very well argue that the 5 Crown witnesses
>> who were picketers could not
really be classified as independent
>witnesses
>> and were fellow picketers also
involved in picketing on the street there
>> along with the complainant. I am mindful of the accused's concerns that
>> we have lost the benefit of
possibly seeing the position of the accused
>> and complainant at the moment of
the push, and the distance from there to
>> this curb where Ms. Griffith
apparently tripped and fell, matters which
>> could have some considerable
bearing on the extent of criminal liability
>> from a possible assault
simpliciter charge, to dealing with an assault
>> bodily harm charge. Also, the absence of the tape deprives the
>Court of a
>> truly independent and accurate
picture of the existence of tension or not
>> on the line, and all of the other
dynamics that were present in those 20
>> odd minutes during which the tape
rolled on in this labour picketing
>> incident. Nor does the accused have the ability to
view the
>tape in order
>> to consider and present possible
defences of self defence and defence of
>> property, or to allow the Court to
have a truly independent view of
>> whether there might be to the
accused the possibility of reasonable
>> apprehension of danger to himself
or damage to his property, or in
>> allowing the accused to view the
tape to influence his decision as to
>> testifying or not. While I agree that the Crown has endeavoured
to try
>> and remedy this serious problem,
and while I recognize that defence
>> counsel has been provided with a
number of witnesses to cross-examine,
>> (but also cognizant of the fact
that a taping of a scene is timeless and
>> the tape's memory does not change
or weaken with the passage of
>time), and
>> that the accused is entitled to a
fair trial but not necessarily
>a perfect
>> trial, and that the destruction of
this tape was not wilful.
>Nonetheless,
>> I believe that its destruction was
the result of gross
>negligence, that no
>> reasonable explanation for its
loss has been put forward. I wish to
make
>> it very clear that this is not in
any way a criticism of Mr. Wright who
>> has tried valiantly to remedy
something that occurred well before his
>> involvement in this file. The accused has sustained serious prejudice
>> which in my opinion has not been
repaired. The steps taken by the Crown,
>> although taken with good
intentions, have not cured the
>accused's right to
>> make full answer and defence. I recognize that the interests of society
>> are that matters should be heard
on their merits, and that only in what
>> the Supreme Court of Canada refers
to as the "clearest of cases" should
>> the ultimate weapon in the
judicial arsenal, namely a stay be granted.
>> However, I believe that on the
facts of this application, the
>interests of
>> justice require that a stay be
entered in these proceedings, and I do so
>> order.
>> QL Update: 980623
>> qp/s/amp
>> crim
>> >>
>>