Lost Evidence

The Crown has an obligation to disclose all relevant information in its possession. Disclosure is an essential component of the right to full answer and defence and as a result has been recognized as a principle of fundamental justice under s. 7 of the Charter of Rights and Freedoms. In the majority of cases complete disclosure is provided without issue. There will however, be cases where problems arise. In this blog post we will review what happens when evidence is lost or destroyed. For an example of a lost evidence case see a case argued by Scott Wright - R. v. Chan, 2020 BCSC 189

Evidence has been lost/destroyed – now what?

Time to explain what happened

Disclosure may be lost through inadvertence, negligence, human or technical error, record purging according to policy, acts of nature or deliberate destruction or non-creation with the intent to avoid having to disclose. When the Crown becomes aware that evidence has been lost or destroyed they must alert counsel for the accused as well as the court as soon as reasonably possible. It will then be for the Crown to explain the circumstances surrounding the loss.

Assessing the explanation

In its determination of whether there is a satisfactory explanation by the Crown, the Court will 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. If the explanation is satisfactory, and the loss of evidence was not the result of unacceptable negligence or an otherwise blameworthy act it discharges the Crown’s obligation to disclose. If the Crown fails to provide a satisfactory explanation for the loss there has been a breach of the accused's s. 7 Charter rights.

Remedy

If the court finds a breach, the question becomes whether they will grant a remedy. This can range from a stay of proceedings (which brings the case to a close) or less drastic remedies like reducing the charge to one in which the missing evidence would not have any impact, excluding the testimony of witnesses and corrective directions to the jury. A stay of proceedings will only be granted 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. Whatever the circumstances, if evidence is lost in your case the lawyers at Pender Litigation will know what to do.