Friday, October 11, 2013

Must evidence in very serious criminal matters be preserved for the lifetime of the offender?

Chaudhary v. Ontario (Attorney General), 2013 ONCA 615 sought a declaration that all evidence in very serious criminal matters should be preserved for the lifetime of the offender.  The Court dismissed the application on the facts as presented but hinted such preservation might be appropriate in the future depending how the caselaw develops:


[11]       Before concluding his reasons, Dambrot J. made some thoughtful, obiter observations about the issue of post–appeal preservation of evidence, which we endorse as well. He stated at paras 87-88:


Unlike preservation of Stinchcombe material before trial, preservation after appellate rights are exhausted does not give rise to a legal principle that can be identified with sufficient precision to yield a simple a [sic] standard. It would be preferable for there to be a carefully developed legislated scheme, which could then be reviewed by the Courts for Charter compliance


But if there is an obligation on the Crown arising from the Charter to preserve Stinchcombe material after appellate rights have been exhausted, and if the task of developing the response to this issue must fall to the Courts, the response should be developed in a nuanced and incremental manner. Unlike preservation of relevant material before trial, it requires consideration of the differing types of material covered by Stinchcombe, what subsequent use there may be for such material, questions of dangerousness and perishability, and questions of feasibility and cost. In any event, the narrow circumstances of this case do not present the occasion to examine these difficult questions.



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