The Crown's Duty to Preserve Evidence


The Crown’s duty to disclose to an accused all relevant information in its possession necessarily gives rise to an obligation on the Crown and the police to preserve this information.

Was the Loss or Destruction of the Evidence the Result of Unacceptable Negligence?

 If such material is lost or destroyed, the Crown must explain this. In considering the adequacy and import of the Crown’s explanation, a trial judge must consider all of the circumstances surrounding the loss of the information, including

·         the relevance it was seen to have at the time, and

·         whether the police acted reasonably in attempting to preserve it.

If the explanation reveals that the information was destroyed or lost due to unacceptable negligence, this constitutes a breach of the Crown’s disclosure obligation and a violation of the accused’s s. 7 rights under the Charter.

When the Loss or Destruction of Evidence Constitutes an Abuse of Process

A loss of evidence may also give rise to a finding of abuse of process if the accused establishes that its absence offends the community’s sense of decency and fair play. This will be the case if evidence was deliberately destroyed to defeat the obligation to make full disclosure, but an improper motive is not essential to a finding of abuse of process and, in some cases, an unacceptable degree of negligence may suffice.

 A stay of proceedings may be an appropriate remedy in the rare case in which the loss of evidence is so prejudicial to the accused’s right to make full answer and defence that it impairs the right to a fair trial.

 R. v. Neidig, 2015 BCCA 489 (CanLII) at para. 33, 34; see also R. v. La, 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680; R. v. F.C.B., 2000 NSCA 35 (CanLII), at paras. 10-11.
When the stay is not granted
Even if the stay is not granted, when applying the reasonable doubt standard the court may consider the impact of the missing evidence on the reliability of the evidence as a whole.




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