R. v. J.G.B., 2001 CanLII 24101 (ON CA)
[4] The current state of the law respecting the impact of lost evidence and when a stay should be granted is succinctly summarized in R. v. B. (F.C.) (2000), 2000 NSCA 35 (CanLII), 182 N.S.R. (2d) 215, 142 C.C.C. (3d) 540 at pp. 547-48 (C.A.), leave to appeal to the Supreme Court of Canada denied, [2000] S.C.C.A. No. 194:
The basic principles . . . were summarized by Sopinka J. in R. v. La, supra, commencing at para. 16. Those principles derived from R. v. Stinchcombe (No. 1), 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, 68 C.C.C. (3d) 1; R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, 82 C.C.C.
(3d) 193; R. v. Stinchcombe (No. 2), supra; R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727, 96 C.C.C. (3d) 225; R. v. O'Connor [(1995), 1995 CanLII 51 (SCC), 103 C.C.C. (3d) 1 (S.C.C.)]; and, R. v. Carosella, supra, and further developed in La, are:
(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 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.
The O'Connor criteria referred to in the eighth point are as stated by Justice L'Heureux-Dubé at para. 82 of O'Connor:
It must always be remembered that a stay of proceedings is only appropriate "in the clearest of cases", where the prejudice to the accused's right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the judicial system if the prosecution were continued.
[5] Earlier, in R. v. O'Connor, [1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411, 103 C.C.C. (3d) 1] the two criteria for a stay referred to in the eighth point are expressed by Professor Paciocco and adopted by L'Heureux-Dubé J., at p. 465 S.C.R., p. 41 C.C.C., as comprising:
(1) the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and
(2) no other remedy is reasonably capable of removing that prejudice.
[6] In assessing the prejudice to the accused's right to make full answer and defence as secured by s. 7 of the Charter, it is important to bear in mind that the accused is entitled to a trial that is fundamentally fair and not the fairest of all possible trials. As stated by McLachlin J. in O'Connor, supra, at p. 517 S.C.R., pp. 78-79 C.C.C.:
. . . the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, [1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562]. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process, like complainants and the agencies which assist them in dealing with the trauma they may have suffered. Perfection in justice is as chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
[7] In a similar vein, Justices McLachlin and Iacobucci commented in R. v. Mills, 1999 CanLII 637 (SCC), [1999] 3 S.C.R. 668 at p. 718, 75 Alta. L.R. (3d) 1, that fundamental justice embraces more than the rights of the accused and that the assessment concerning a fair trial must not only be made from the point of view of the accused but the community and the complainant. The fact that an accused is deprived of relevant information does not mean that the accused's right to make full answer and defence is automatically breached. [See Note 1 at end of document] Actual prejudice must be established: Mills, supra, pp. 719-20, citing R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at p. 693, 116 C.C.C. (3d) 97.
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