Loss of evidence prior to criminal trial

Today’s decision in R. v. J.P., 2009 ONCA 850 deals with the situation where relevant evidence goes missing prior to a criminal trial.  Assuming there is no suggestion of spoliation the question then becomes, does the loss of evidence justify a stay of proceedings?  The answer depends on the defendant establishing that the loss of the evidence has had the effect of prejudicing the defendant – absent such proof, there should be no stay.  The Court writes:

[4]              The loss of a portion of the complainant’s evidence occurred due to an unexpected and unforeseeable defect in one of the tapes used to record the evidence from the preliminary inquiry. There is no suggestion that the missing tape was deliberately destroyed or tampered with or altered in any fashion; nor is it suggested that the defect in question was part of a larger systemic problem that the responsible ministry was aware of but chose to ignore. As the trial judge himself observed, “it is a rare happening where preliminary hearing transcript evidence is lost.”

[5]              In the circumstances, the missing transcript cannot reasonably be attributed to “unacceptable negligence” on the part of the Crown. On the contrary, the Crown provided a satisfactory explanation for its loss.

[6]              That being so, in order to establish a breach of his right to make full answer and defence under s. 7, the respondent had to do more than show that the lost transcript was, in the words of the trial judge, “likely relevant and material” or “logically probative to issues at trial, including the credibility and reliability of the complainant.”  

[7]              An accused’s right to make full answer and defence is not automatically breached every time he or she is deprived of relevant information. Rather, as the Supreme Court stated in R. v. La (1997), 116 C.C.C. (3d) 97 at paras. 24 and 25, where the Crown has met its duty of explaining the circumstances of the loss of any missing evidence, in order to make out a breach of s. 7 on the ground of lost evidence, “the accused must establish actual prejudice to his or her right to make full answer and defence.”

[8]              That is not an easy task. Sopinka J. made this clear at para. 24 of La where he stated:

Thus, in extraordinary circumstances, the loss of a document may be so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial. In such circumstances, a stay may be the appropriate remedy...

[9]              At para. 27 of the same decision, Sopinka J. made it equally clear that in most cases, the decision whether to stay the proceedings should be left to the end of the trial after all of the evidence has been heard. This court made the same point in R. v. Bero (2000), 151 C.C.C. (3d) 545 at para. 18.