In a criminal trial alleging historical sexual offences against a former foster child, the accused brought a lost-evidence application seeking a stay after police destroyed a 2002 written statement made by the complainant.
The court held that the statement was relevant disclosure and that the Crown failed to discharge its burden of showing the destruction did not result from unacceptable negligence, thereby establishing a s. 7 Charter breach.
However, the court found no substantial or material prejudice because the defence had extensive alternative material with which to cross-examine the complainant and test credibility.
A stay was refused, and the remedy granted was an inference that the lost statement would not have assisted the Crown, together with consideration of the missing statement in assessing the complainant's credibility and reliability.
