A male nurse accused of raping a co-worker did have his Charter rights breached in the police investigation, but not in a way that was serious enough to warrant a mistrial let alone a stay of proceedings.
That was the decision of Judge Andrea Ormiston in provincial court on Monday (May 29) in the case of Ruppreet Singh Pawar, charged in the July 2018 sexual assault of a female co-worker, who is not being named due to a publication ban.
After firing four lawyers, Pawar asked for a Punjabi translator mid-trial, then made the Charter challenge after the trial was over in March.
The translator sat in court next to Pawar on Monday but never said a word to him as Judge Ormiston read her decision. This didn’t surprise the victim who told The Progress that Pawar speaks perfect English. He worked as a registered psychiatric nurse for years, and went through four-plus years of interviews and pre-trial hearings in advance of the trial before claiming he needed a translator.
His lawyer Brij Mohan brought forth the application of a breach of section 7 of the Charter regarding lost or destroyed evidence.
Section 7 of the charter says that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Pawar was a co-worker of the alleged victim in a health-care setting in Abbotsford. The now 41-year-old victim was 36 when the alleged assault occurred on the bleachers at Chilliwack Secondary School (CSS) in the early hours of July 18, 2018.
During the police investigation, a security video of the scene was shown to the investigating officer of the bleachers. While the officer, who was very new to the job, saw the video evidence, it was later deleted or otherwise lost before it could be shared with Pawar’s lawyer, a necessary part of evidence disclosure in a criminal trial.
Crown argued that the police were not in possession of the video so there was nothing to disclose, but Judge Ormiston found the video was in “constructive possession” and that Crown had an obligation to release relevant information.
However, Ormiston agreed that police did not act with malicious intent and the “deficiencies from this investigation were inadvertent.” Still, the lack of attention to the video did amount to a section 7 breach, she found.
The following issue for the judge to decide upon is whether a stay of proceedings (dropping the charges) or a mistrial were suitable remedies for the breach, and Judge Ormiston ruled they were not.
“A stay of proceedings is a drastic measure,” she decided, one that violates the truth-finding mission of the courts and the criminal justice system.
“The constable testified about what he saw before it was destroyed,” Ormiston said, adding that the mistake was “inadvertent and due to inexperience rather than something more sinister.”
“The defence has not shown that a mistrial is required,” she said. “The application for a stay of proceedings is dismissed.”
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