On December 14, 2017, the Alberta Court of Appeal released the per curiam ruling in R v Girou, 2017 ABCA 426 involving a rare case where the Crown and the defendant agreed that lost evidence breached the defendant’s fair trial interests under s. 7 of the Charter of Rights. The trial judge concluded that sufficient prejudice was established and entered a stay of proceedings. The Alberta Court of Appeal reversed. Here’s the broader question: Does the applicant have to establish prejudice in a lost evidence case?

The facts were not complicated. A police officer took notes and made an audio recording of the complainant’s statement in a sexual assault case. The officer typed a detailed summary of the statement based on the audio recording. The recording was then inadvertently lost. The issue arose whether the lost recording justified a stay of proceedings resulting from the impact on the defendant’s ability to advance a defence of “honest but mistaken belief in consent” and “the ability to fully cross-examine the complainant”.

The trial judge found that other evidence such as the typed notes, the complainant’s testimony at the preliminary inquiry and the statements of other witnesses did not mitigate the prejudice. However, the Alberta Court of Appeal concluded, at para. 13, that based on the trial record the extent of the prejudice was largely speculative. The difficulty in the record was that the trial judge ruled on the stay application before trial relying on “hypotheticals and speculation” as to what might happen at trial and on argument regarding the potential challenges the defence might face in cross-examination. The court went on to hold, at paras. 17-8: “When assessing prejudice, it is critical to consider the evidence that does exist and whether it contains essentially the same information as the lost evidence: see…R v Bradford, [2001] 52 OR (3d) 257 at para 8, [2001] OJ No 107 (CA)…[D]etermining whether the loss of the audio recording was material could not be fairly assessed without considering all the evidence once it was tendered.”

There is, then, a second question in addition to the broader one whether the applicant must establish prejudice. The second question is: What is the best procedural choice for the applicant?

2. The Leading Cases

The two leading cases in the Supreme Court of Canada are R v Carosella, [1997] 1 SCR 80 and R v La, [1997] 2 SCR 680. In Carosella, the complainant in an historic sexual assault case went to a crisis centre for advice about laying charges against the defendant. A social worker interviewed her for about an hour and forty-five minutes. The complainant then contacted the police and the defendant was charged. The notes were later deliberately destroyed according to the centre’s policy of shredding files with police involvement. The issue was whether the Crown was in breach of its disclosure obligations by failing to disclose the notes. In La, the complainant was a thirteen year old runaway and the investigating police officer taped one of her statements for a secure treatment application. The officer turned over the report and written statements to detectives in the vice unit but the tape of one of her statements was misplaced and never found. The issue here was whether the Crown was relieved of the duty to disclose when it had relevant evidence in its possession but later lost it.

(a) Deliberate Destruction

The pivotal fact in Carosella, arising from the destruction policy, was that the crisis centre shredded files that were identified as having police involvement because an application for production might be made. Writing for a 5-4 majority, Justice John Sopinka noted, at para. 9, that cross-examination of the executive director of the centre revealed that “[it] had been unsuccessful in opposing applications for production of records in the past and ultimately determined that it would combat the practice by following a policy of taking notes that would be misleading if ordered produced and of shredding files with police involvement before being served in relation to criminal proceedings.”

The deliberate destruction of relevant evidence was the driving fact underpinning Justice Sopinka’s conclusion, at para. 37, that the right to disclosure “is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice. [T]he breach of this principle of fundamental justice is in itself prejudicial. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned.” A stay of proceedings flowed from either (a) the absence of an alternative remedy or (b) the irreparable prejudice to the integrity of the justice system.

(b) The General Category

In La, the evidence was not deliberately destroyed. The issue was whether evidence had been lost due to “unacceptable negligence”. Writing for the same 5-4 majority as in Carosella, Justice Sopinka held, at para. 26, that where evidence has been inadvertently lost, “the same concerns about the deliberate frustration of the court’s jurisdiction over the admission of evidence do not arise.” However, as Justice Sopinka stated, at para. 20, the Crown has the burden of providing an explanation to satisfy the trial judge “that the evidence has not been destroyed or lost owing to unacceptable negligence.” Where the Crown is unable to provide a satisfactory explanation, it has failed to meet its disclosure obligations and there has been a violation of s. 7 of the Charter. Such failure may also suggest an abuse of process has occurred but that is a separate question. It is not necessary that the defendant establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose. Justice Sopinka then went on, at para. 25, to hold that: “[W]here the Crown has met its disclosure obligations, in order to make out a breach of s. 7 on the ground of lost evidence, the accused must establish actual prejudice to his or her right to make full answer and defence.”

There are, then, two categories of lost evidence cases. One where deliberate destruction of evidence has occurred and the other being the general category. Justice Sopinka described the two categories in La, at para. 26, where he affirmed his opinion in Carosella: “The justice system functions best and instills public confidence in its decisions when its processes are able to make available all relevant evidence which is not excluded by some overriding public policy. Confidence in the system would be undermined if the administration of justice condoned conduct designed to defeat the processes of the court. The agency made a decision to obstruct the course of justice by systematically destroying evidence which the practices of the court might be required to be produced. This decision is not one for the agency to make. Under our system, which is governed by the rule of law, decisions as to which evidence is to be produced or admitted is for the courts. It is this feature of the appeal in particular that distinguishes this case from lost evidence cases generally.” (See: Carosella, at para. 56)

3. Lost Evidence in Alberta

The law as applied in Alberta is consistent with the two categories recognized in La. In R v Grimes, 1998 ABCA 9, the defendant was also charged with sexual assault. The trial judge granted his application for a stay of proceedings because school records and bank records had been destroyed after seven years as routine business practice. The defendant asserted that the destroyed records would assist him in establishing an alibi. The trial judge ruled that it was not relevant to consider whether the defendant had been prejudiced. In the per curiam ruling, at paras. 10 and 12, the Alberta Court of Appeal held that this case was governed by La and not Carosella:

“We recognize that there are portions of the Carosella decision which could be interpreted as applying to lost evidence cases, and holding that prejudice need not be proved to establish a breach of the accused’s s. 7 Charter rights. A complete reading of the majority decision as well as the subsequent interpretation of that decision in R. v. La leads us to conclude that Carosella must be limited to its peculiar circumstances, being the deliberate destruction of records, for the purpose of ensuring that the records would be unavailable to assist a certain class of defendant.

We are dealing with documents in the possession of third parties who destroyed the documents after seven years as part of a routine policy regarding the destruction of business records. There is no suggestion that any of the records were destroyed for other than legitimate business purposes, or that there was any intent to interfere with the ability of the Courts to access that evidence.”

The court therefore concluded, at para. 20, that “[i]n lost evidence cases, prejudice, or conduct amounting to an abuse of the process of the court…must be established to ground a finding that the appellant’s Charter rights have been breached.” However, in La, at para. 1, Justice Sopinka stated that a remedy may be warranted in extraordinary cases in which a satisfactory explanation is given by the Crown for the loss of evidence and no abuse is found but the evidence is so important that its loss renders a fair trial problematic. (See also: Grimes, at para. 24)

4. Conclusion

Judicial discretion with respect to the timing of a lost evidence application creates a dangerous procedural choice for the applicant. In La, Justice Sopinka emphasized, at para. 27, that “[t]he 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.” Although that is often best assessed in the context of the trial, the trial judge has discretion to consider an application on a pretrial motion or after hearing some of the evidence. And that was the haunting of Girou. The lost evidence application was brought on a “pre-trial voir dire”. The court said this about the procedural choice, at para. 13:

“Here, the Crown and defence agreed that the stay application could be heard before the trial proper. Although this was a well-intentioned effort to expedite matters and to reduce costs to the justice system, the trial judge, as the ultimate guardian of trial fairness, ought to have considered whether such a process could produce a just result in the circumstances. On the record before us, the extent of the prejudice is largely speculative. There is nothing exceptional or manifest that mandated adopting this procedure.”

But that only begs the question. In the post-Jordan world, enormous pressure is being exerted on defence lawyers, and Crown attorneys, to meet speedy trial deadlines and streamline Charter applications. The comment of the Girou court is a good reminder that administrative efficiency is not a substitute for a fair trial.