R. v. La [1997] 2 S.C.R. 680: Failure to disclose - Evidence inadvertently lost

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.


Criminal law - Evidence - Duty to disclose - Evidence inadvertently lost - Whether Crown relieved of duty to disclose.
Constitutional law - Charter of Rights - Principles of fundamental justice (s. 7) - Failure to disclose - Evidence inadvertently lost - Whether breach of s. 7 of Charter - Canadian Charter of Rights and Freedoms, ss. 7, 24(1).
The police found the complainant, a thirteen-year-old runaway they were looking for, in a vehicle driven by a man known to them as a pimp. The driver was later charged with sexual assault. One of complainant's conversations was taped at police headquarters in preparation for a secure treatment application and only notes of her date of birth, address and phone numbers were made. The taped conversation was not for any criminal investigation; indeed, the investigation into the accused's activities had not yet started. The constable turned over his report and the written statements, but not the tape of the initial interview, to vice unit detectives for them to investigate the complaints of prostitution and sexual assault. The vice unit detectives spoke with the complainant and that interview was recorded and transcribed. By the time of the preliminary inquiry, the constable had forgotten about the taped initial conversation with the complainant and, some time between the interview and the trial, he misplaced the tape.

At trial, counsel for the accused successfully applied for a stay of proceedings based on the Crown's failure to disclose the initial tape recording. The Court of Appeal allowed an appeal and ordered a new trial. At issue here was whether the Crown is relieved of the duty of disclosure when it has relevant evidence in its possession but later loses it.

Held: The appeal should be dismissed.

Per Lamer C.J. and Sopinka, Cory, Iacobucci and Major JJ.: The Crown's duty to disclose all relevant information in its possession gives rise to an obligation to preserve relevant evidence. When the prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If the explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. The Crown fails to meet its disclosure obligations where it is unable to satisfy the judge and s. 7 of the Charter is accordingly breached. Such a failure may also suggest that an abuse of process has occurred. An accused need not establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.

The court, in determining whether the Crown's explanation is satisfactory, should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the police or the Crown took reasonable steps to preserve the evidence for disclosure. The relevance that the evidence was perceived to have at the time must be considered; the police cannot be expected to preserve everything on the chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. As the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.

Here, the Crown's explanation was satisfactory. The tape recording was not made in the course of the criminal investigation and the police officer did not fail to take reasonable steps to preserve the tape.

No abuse of process occurred. Conduct amounting to abuse of process includes the deliberate destruction of material by the police or other officers of the Crown for the purpose of defeating the Crown's obligation to disclose and, even absent proof of improper motive, an unacceptable degree of negligent conduct.

Even where the Crown has not breached its duty to disclose, the loss of a document may be so prejudicial that it impairs the right of an accused to receive a fair trial. To make out a breach of s. 7 of the Charter on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence.

The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or other prejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds.

The appellant's right to make full answer and defence was not impaired here. The taped interview was not regarded to be a detailed conversation and was not made for the criminal investigation. More importantly, an alternative source of information was available.

Per La Forest, L'Heureux-Dubé, Gonthier and McLachlin JJ.: The Crown's duty to disclose all relevant and unprivileged material in its possession to the defence is a feature of the common law, in addition to having constitutional underpinnings. Still, the Crown's duty to disclose is not a separate and distinct right under s. 7 of the Charter. While broad and complete disclosure is the rule, not every failure to disclose will necessarily amount to a constitutional violation.

The duty to preserve should not be confused with the Crown's duty to disclose. Where the Crown has turned over all relevant material in its possession to the defence, its duty to disclose is exhausted. Where it becomes known that relevant material once in the possession of the Crown or the police has become unavailable, the Crown must explain the circumstances focussing on why this material was not given to the defence.

Where the Crown fails to disclose or where relevant material is not preserved, the constitutional inquiry must be properly grounded. In that regard, the focus will be twofold: (1) did the failure to disclose have an effect upon the accused's right to make full answer and defence; and (2) did the Crown's conduct violate fundamental principles underlying the community's sense of decency and fair play and cause prejudice to the integrity of the judicial system. Where either of these effects are demonstrated on a balance of probabilities, a violation of s. 7 will have been demonstrated. The trial judge will then be entitled to fashion a remedy pursuant to s. 24(1). This should be done in accordance with the principles laid out in R. v. O'Connor.

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