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EVIDENCE - Preservation or destruction of evidence

Thursday, December 28, 2017 @ 8:43 AM  


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Appeal by the Crown from a stay of sexual assault proceedings involving the accused, Girou. The complainant alleged the accused sexually assaulted her in her home after a night of drinking at a bar with friends. She alleged she vomited from drinking when the accused forced acts of fellatio and vaginal and anal intercourse upon her. The accused's position was that the complainant instigated and consented to the sexual activity. The complainant telephoned police and a friend prior to seeking medical treatment. Police attended the complainant's residence to take a statement. The officer took notes and made an audio recording of the complainant's statement. The officer typed a detailed summary of the statement based on the audio recording. The summary and initial notes were disclosed to the accused. However, the audio recording was inadvertently lost and could not be provided. The parties agreed that the loss of the recording breached the accused's s. 7 Charter rights. The accused sought a stay of proceedings following the preliminary inquiry. The trial judge concluded that sufficient prejudice justifying a stay arose from the impact upon the accused's ability to advance a defence of honest but mistaken belief in consent, and the loss of the ability to fully cross-examine the complainant. The Crown appealed.

HELD: Appeal allowed. The trial judge erred in concluding that there was potential prejudice sufficient to meet the standard for a stay of proceedings. The extent of prejudice attributed to the loss of the recording of the complainant's statement was largely speculative. Any impact upon the defence of honest but mistaken belief required a prior determination of whether there was an air of reality to the defence. No such test was conducted prior to consideration of a stay. The notes of the officer who spoke to the complainant and took her statement remained available to the accused. The trial judge's assessment of the notes' reliability was problematic. Any suggestion by the trial judge that admissibility was required to use the notes for cross-examination was a misstatement of the law. This was not an exceptional case warranting the extraordinary remedy of a stay of proceedings. A new trial was ordered.

R. v. Girou, [2017] A.J. No. 1363, Alberta Court of Appeal, M.S. Paperny, B.L. Veldhuis and S.L. Martin JJ.A., December 14, 2017. Digest No. TLD-December252017005