Impaired driving trial. One issue at trial was the Crown’s alleged non-disclosure of the in-car police video recording. Police officer did not recall activating the camera during his investigation of the accused.

Held: No s. 7 breach.

No evidence that the video requested ever existed. Further, as per McCoy, 2016 ABQB 240: “since the Crown does not bear the onus to create evidence, the non-recording by police of the interaction with the accused, even where a mandatory policy requiring the police to do so, will not be sufficient to found a s. 7 Charter breach … Rather, the trial judge may consider the failure to create a recording where the equipment is available and functional, including where officers have been outrageously cavalier or indifferent towards the use of the VICS, in assessing weight to give the evidence adduced at trial.”

E. Thai – Defence Counsel