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CONSTITUTIONAL ISSUES - Legal rights - To make full answer and defence - Stay of proceedings

Monday, July 05, 2021 @ 9:31 AM  


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Appeal by the Crown from the trial judge’s decision finding a breach of s. 7 of the Canadian Charter of Rights and Freedoms (Charter) by the Crown and directing a stay of proceedings as the remedy. The appellant’s infant child was found lifeless in her crib. The Crown’s theory was that the appellant got into the crib and caused her death. The police officers formed the view that he was highly intoxicated when he was first awoken and that he remained so when he was taken into custody at the police station one hour later. The appellant denied that he was intoxicated to the levels suggested by police. Police did not retain the appellant’s video-recorded evidence for a 12-hour period. The Crown was not aware that this evidence was missing until after it was destroyed. At the time, video-recorded evidence was automatically overwritten 400 days after being created. During the voir dire, defence counsel elicited evidence about the importance of the appellant’s level of sobriety when he was first arrested. Police also indicated there was a large amount of urine in the infant’s crib. The trial judge found that the loss of the video-recorded evidence breached the appellant’s rights under s. 7 of the Charter. He found the video-recorded evidence was strongly relevant for the purposes of raising a reasonable doubt regarding the appellant’s level of intoxication, both as a matter of fact and as a means of testing the police officers’ credibility. The destroyed evidence might have been used to prove that the appellant had not been in the crib because his clothing was not wet, and he did not smell of urine. The trial judge found unacceptable negligence on the part of the Crown. He found the loss of this evidence caused severe and irreparable prejudice to the defence and that the destruction of the recordings impaired the appellant’s right to a fair trial.

HELD: Appeal dismissed. This was one of those rare cases where a pre-trial remedy of a stay of proceedings was appropriate. The trial judge did not err by deciding that the appellant’s right to a fair trial was so prejudiced that a remedy had to be granted before all the evidence could be heard at trial. The trial judge was correct in finding that strongly relevant evidence was destroyed. The police officers’ testimony regarding intoxication would play a significant role in answering the inevitable questions in the jurors’ minds of how, under what circumstances and why did the appellant get into a crib if he was not intoxicated. It would be necessary to respond to those questions by contesting the evidence of the police officers, by asserting that only an intoxicated adult would get into a baby’s crib, and the appellant was not intoxicated. Even if the Crown did not lead the officers’ evidence about the urine in the crib, it does not mean that the appellant might not be able to raise a reasonable doubt by virtue of the fact that the video showed his pants were dry and no officer at the booking station smelled urine or commented on the fact when his pants were taken from him. The trial judge did not fail to assess the degree of relevance of the destroyed evidence. Given the theory of the Crown and of the defence as understood during the voir dire, regarding the link between the appellant’s level of intoxication and the criminal negligence charge, the destroyed video-recorded evidence was strongly relevant. The destruction of the video-recorded evidence was occasioned by a failure to consider whether preservation of that evidence was necessary to meet the disclosure obligations of the Crown. The trial judge did not err by finding that the video-recorded evidence was destroyed through the unacceptable negligence of the Crown. Given the serious nature of the charge, the court deferred to the trial judge’s conclusion that this was one of those cases that was exceptional and clear and in which a stay was warranted.

R. v. K.D.S., [2021] S.J. No. 240, Saskatchewan Court of Appeal, G.R. Jackson, B. Barrington-Foote and J.A. Tholl JJ.A., May 28, 2021. Digest No. TLD-July52021001