View source for Lost or Destroyed Evidence

{{LevelZero}}{{HeaderDisclosure}}
{{HeaderAbuse}}
==General Principles==
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{{seealso|Abuse of Process|Stay of Proceedings}}

Where evidence is in the possession of the Crown or Police, there is a duty to preserve this evidence. Where this evidence goes missing or is destroyed, it can in certain circumstances, form grounds for a [[Stay of Proceedings|stay of proceedings]] under s. 7 and 11(d) of the Charter. The stay is on the basis that the rights under s. 7 of the Charter to make full answer and defence and under s. 11(d) to a fair trial have been violated.

; Lost Originals
There is a limited right to review original documents. Where the originals have gone missing the Crown has an obligation to explain how it went missing.<ref>
''R v FCB'', [http://canlii.ca/t/1zrpp 2000 NSCA 35] (CanLII), 142 CCC (3d) 540{{perNSCA|Roscoe JA}} at 547-48 (N.S. C.A.)<br>
''R v Bero'', [http://canlii.ca/t/1fbg9 2000 CanLII 16956] (ON CA){{perONCA|Doherty JA}} at para 30<br>
</ref>

'''Reason for Loss'''<br>
The loss of evidence will not result in the breach of the duty to disclose so long as the conduct of the police was reasonable.<ref>
''R v La'', [http://canlii.ca/t/1fr18 1997 CanLII 309] (SCC), [1997] 2 SCR 680{{perSCC|Sopinka J}} at para 21
</ref>

; Unacceptable Negligence
Not every instance where negligence that results in the loss of evidence will result in a Charter breach.<ref>
''R v Lipovetsky'', [http://canlii.ca/t/1tf3v 2007 ONCJ 484] (CanLII), [2007] OJ No 4135{{perONCJ|Kenkel J}} at para 19 ("Even where there is negligence on the part of the Crown, the loss of a videotape does not automatically violate the Charter. A Charter breach is established only where the lost evidence is shown by the applicant to be relevant to the issues at trial.")<br>
See also ''R v Dulude'', [http://canlii.ca/t/1jsnv 2004 BCPC 524] (CanLII), [2004] OJ No 3576{{perBCPC|Stansfield J}} at para 30
</ref>

Not every case loss of evidence will infringe the accused’s right to make full answer and defence.  “Owing to the frailties of human nature, evidence will occasionally be lost” <ref>{{supra1|La}}{{at|20}}</ref>.  The Crown must explain the loss and satisfy the trial judge that it was not due to unacceptable negligence or an abuse of process.  If satisfactorily explained, the onus is on the accused to “establish actual prejudice to his or her right to make full answer and defence” <ref>{{supra1|La}} at para 25</ref>.  The principal consideration, in the explanation, “is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence” <ref>La at para 21<br>
and see ''R v Kociuk (R.J.)'', [http://canlii.ca/t/fnl3w 2011 MBCA 85] (CanLII){{perMBCA|Chartier JA}}</ref>

There can only be a breach of the duty to disclose where the loss or destroyed evidence was found to due to "unacceptable negligence" <ref>
{{supra1|FCB}}<br>
Bero, at para 30<br>
</ref> A reach of this duty will result in a violation of s. 7 of the Charter.<ref>
{{supra1|FCB}}<br>
Bero at para 30<br>
</ref> Additionally, it may amount to an abuse of process.<ref>
{{supra1|FCB}}<br>
{{supra1|Bero}} at para 30
</ref>
The only available remedy would be a stay.<ref>
{{supra1|Bero}} at para 30
</ref>

Even where it does not amount to "unacceptable negligence", there may still be a breach of section 7 of the Charter where " the loss can be shown to be so prejudicial to the right to make a full answer and defence that it impairs the right to a fair trial. " The only available remedy would be a stay.<ref>
{{supra1|RCB}}<br>
{{supra1|Bero}} at para 30<br>
</ref>

'''Notice of Destruction'''<br>
Notifying the accused ahead of the destruction of property inviting inspection may cure the prejudice caused by the loss of evidence from the destruction of property.<ref>
e.g. ''R v Berner'', [http://canlii.ca/t/fttg9 2012 BCCA 466] (CanLII){{perBCCA|Ryan JA}} - car in collision destroyed by police prior to trial. Officer sent registered mail letter to accused prior to releasing vehicle.</ref>

'''Offence-related Circumstances'''<br>
Discarding of the mouthpiece used in an alcohol roadside screening device will not violate the right to full answer and defence under s. 7 of the Charter.<ref>
''R v Lee'', 2010 ONSC 4117{{NOCANLII}}<br>
''R v Boylan'', [http://canlii.ca/t/fn6gv 2011 BCPC 235] (CanLII){{perBCPC|Frame J}}<br>
''R v Goosen'', [http://canlii.ca/t/g73bj 2014 SKQB 135] (CanLII){{perSKQB|Tholl J}}<br>
cf. ''R v Dhillon'', (1999), 41 W.C.B. (2d) 48{{NOCANLII}} - stay of proceedings
</ref>

'''Lost Court Record'''<br>
The loss or destruction of the recording and transcripts of a preliminary inquiry will be sufficient for an acquittal due to failure to make full answer and defence.<ref>
''R v MacLeod'', [http://canlii.ca/t/1nzg2 1994 CanLII 5243] (NB CA), (1994), 93 CCC (3d) 339 (N.B.C.A.){{perNBCA|Ryan JA}}</ref>

'''Destruction by Third Party'''<br>
Where records held by a third party are destroyed there may be a stay of proceedings.<ref>
''R v Carosella'', [http://canlii.ca/t/1fr3p 1997 CanLII 402] (SCC), [1997] 1 SCR 80{{perSCC|Sopinka J}} - rape crisis centre destroyed nurses notes per centre's policy
</ref>

{{reflist|2}}

==Lost Statements of the Complainant==

When considering whether a stay is appropriate for a lost statement, the Court should consider "all the surrounding background facts and circumstances of the complainant's evidence" such as:<ref>
''R v JGB'', [http://canlii.ca/t/1fblb 2001 CanLII 24101] (ON CA){{perONCA|Weiler JA}}{{at|9}}<br> 
</ref>
* "the emotional or psychological status of the complainant at the time the allegations were made"
* "the time when the complaints were made in relation to when the allegations occurred, i.e. before or after therapy"
* "whether the investigating officers who took the statement were available for questioning"
* "whether the complainant made other statements prior to trial that the defence can use to attack her credibility"
* "whether the Crown concedes that proposed substitute evidence is a statement of the complainant and may be used for the purposes of cross-examination of the complainant"
* "whether the statements that do exist appear to contain the same amount of detail as the lost statement"
* "the extent of the complainant's present ability to recall the contents of the earlier statements"
* "the complainant's present ability to recall the details surrounding the various alleged incidents of abuse" 
* "any apparent or potential inconsistencies in the complainant's trial testimony or between her other statements and her evidence at the preliminary hearing"
* "whether the accused was made aware of the contents of the lost evidence before its destruction or disappearance"
* "whether the Crown gave any undertaking to the accused at the time that matters would not proceed with the result that the accused did not retain his own records" and
* "what other witnesses had to say at the time in support or contradiction of the complainant's allegations"

The emphasis of consideration should be on "whether other available evidence contains essentially the same information as the lost evidence".<ref>
''R v Girou'', [http://canlii.ca/t/gvd4r 2016 ABQB 607] (CanLII){{perABQB|Thomas J}} at para 20<br>
</ref>

{{reflist|2}}

==See Also==
* [[Police Duty to Collect Evidence]]
* [[Crown Duty to Disclose#Preservation of Evidence|Duty to Preserve Evidence]]