R. v. Satkunananthan, 2001 CanLII 24061 (ON CA)
[75] In R. v. La (1997), 1997 CanLII 309 (SCC), 116 C.C.C. (3d) 97 (S.C.C.), a decision released after the trial in this matter, the Supreme Court of Canada expanded upon the approach that should be adopted in cases of lost or destroyed evidence. As this court noted in R. v. Bero, 2000 CanLII 16956 (ON CA), [2000] O.J. No. 4199 at para. 30, this approach in La 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.) as follows:
(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 [evidence] 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.
Aucun commentaire:
Publier un commentaire