R. v. Bero, 2000 CanLII 16956 (ON CA)
[30] The trial judge also erred in concluding that there had been no breach of the appellant’s constitutional rights. The proper approach where any accused claims that the failure to preserve material in the possession of the Crown results in a breach of a Charter right is found in R v. La, supra. That approach is conveniently summarized by Roscoe J.A. in R. v. F.C.B. (2000), 2000 NSCA 35 (CanLII), 142 C.C.C. (3d) 540 at 547-48 (N.S. C.A.):
(1) The Crown has an obligation to disclose all relevant information in its possession.
(2) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
(3) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
(4) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
(5) In its determination of whether there is a satisfactory explanation by the Crown, the Court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
(6) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 Charter rights.
(7) In addition to a breach of s. 7 of the Charter, a failure to produce evidence may be found to be an abuse of process, if for example, the conduct leading to the destruction of the evidence was deliberately for the purpose of defeating the disclosure obligation.
(8) In either case, a s. 7 breach because of failure to disclose, or an abuse of process, a stay is the appropriate remedy, only if it is one of those rare cases that meets the criteria set out in O’Connor.
(9) Even if the Crown has shown that there was no unacceptable negligence resulting in the loss of evidence, in some extraordinary case, there may still be a s. 7 breach if 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. In this case, a stay may be an appropriate remedy.
(10) In order to assess the degree of prejudice resulting from the lost evidence, it is usually preferable to rule on the stay application after hearing all of the evidence.
[31] R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 recognizes that, subject to limited exceptions, all relevant information must be disclosed to the defence. Relevant information is information that is reasonably capable of affecting an accused’s ability to defend himself: R. v. Egger (1993), 1993 CanLII 98 (SCC), 82 C.C.C. (3d) 193 at 203 (S.C.C.).
[32] An accused’s right to disclosure of relevant information in the possession of the Crown is a component of the right to make full answer and defence which is in turn a principle of fundamental justice. Hence, the failure to preserve information which, if preserved would be disclosable to the defence under R. v. Stinchcombe, supra, will constitute a breach of an accused’s constitutional right to disclosure of the Crown’s case as protected by s. 7 of the Charter, unless the Crown can advance a satisfactory explanation for the failure to preserve the evidence: R. v. La, supra, at pp. 106-107. If the explanation provided by the Crown establishes that the evidence was not lost or destroyed because of unacceptable Crown negligence, the Crown’s duty to disclose will not have been breached by the failure to preserve the evidence.
[33] There is no dispute but that forensic tests of the interior of the vehicle could have provided evidence relevant to the identity of the driver. That evidence could have affected the appellant’s ability to defend himself. Depending on the results, the tests could have influenced the appellant’s plea, the forum in which he chose to be tried, and the nature of the defence. The failure to maintain possession of the vehicle deprived the appellant of information which was relevant in that it could have affected his ability to defend himself. That conclusion is best demonstrated by considering what would have happened had the Crown maintained possession of the vehicle but refused to produce it to the defence on the basis that it was irrelevant. A trial judge would most certainly have ordered the vehicle produced, pursuant to his or her power to supervise Crown disclosure. The onus, therefore, falls on the Crown to provide a satisfactory explanation for the failure to preserve the vehicle.
[34] In discussing the approach to be taken in assessing explanations offered by the Crown for the destruction of relevant evidence, Sopinka J., in R. v. La, supra, at p. 107, said:
In order to determine whether the explanation of the Crown is satisfactory, the court should analyze the circumstances the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police. [Emphasis added.]
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