[30] The Crown acknowledges that the lost audiotapes and notes would have been relevant to the accused's defence. In a case that turned on credibility, they likely would have been useful for cross-examining the complainants. Therefore, if they were in the Crown's possession or control at the time of trial, the Crown would have had a duty to produce them under the disclosure standards in R. v. Stinchcombe, [1991] 3 S.C.R. 326.
[31] An accused's right to disclosure of material that meets the Stinchcombe standard is a component of an accused's right to make full answer and defence. In turn, an accused's right to make full answer and defence is a principle of fundamental justice in s. 7 of the Charter. Therefore, a breach of the Crown's duty of disclosure is a breach of an accused's constitutional rights under s. 7.
[32] The Crown's duty to disclose relevant evidence includes the obligation to preserve relevant evidence. However, as Sopinka J. noted in his majority judgment in R. v. La, [1997] 2 S.C.R. 680, "despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost." The loss or destruction of relevant evidence that was once in the Crown's possession or control thus does not automatically equate to a breach of the Crown's disclosure obligation. In La, Sopinka J. sets out the legal framework for analyzing when lost or destroyed evidence gives rise to a breach of s. 7 of the Charter and when it justifies a stay of proceedings.
[33] The starting point is the Crown's obligation to explain why the evidence was lost. That obligation flows from the Crown's duty to preserve relevant evidence. Sopinka J. discusses two classes of cases: cases where the Crown's explanation is unsatisfactory or the Crown gives no explanation at all, and cases where the Crown's explanation is satisfactory.
[34] Where the Crown gives no explanation or where the Crown's explanation shows that the evidence has been lost or destroyed because of the Crown's "unacceptable negligence", then the Crown has failed to meet its disclosure obligation. It has breached s. 7 of the Charter. Whether the breach entitles the accused to a stay of proceedings or some lesser remedy depends on the extent of the actual prejudice caused by the loss or destruction of the evidence.
[35] Where the Crown satisfactorily explains the loss or destruction of the evidence, it has met its disclosure obligation. Section 7 of the Charter has not been breached. Still, "in extraordinary circumstances" the accused may be entitled to a stay if the accused can show that the lost or destroyed evidence is "so prejudicial to the right to make full answer and defence that it impairs the right of an accused to receive a fair trial."
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