>-----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


>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:



>>  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.:-


>>  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.


>>  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


>> 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.


>>  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


>> 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.


>> 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.


>>  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.


>>  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


>> 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.


>>  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


>> 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.


>>  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


>> 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


>> 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


>> 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


>> 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. 


>> 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

>> >>