COURT OF APPEAL FOR ONTARIO

DATE: 20001109

DOCKET: C34895

RE: HER MAJESTY THE QUEEN (Respondent) –and– EDWARD LABUCKAS (Appellant)

BEFORE: FINLAYSON, WEILER and ABELLA JJ.A.

COUNSEL: Irwin Koziebrocki, for the appellant

Thomas D. Galligan, for the respondent

HEARD: November 6, 2000

On appeal from the conviction imposed by Justice John J. Cavarzan, sitting as a summary conviction appeal court judge, dated August 11, 2000.

E N D O R S E M E N T

[1] The appellant submits that his ability to make full answer and defence has been compromised by the loss of evidence caused by the failure to provide timely and complete disclosure on the part of the police. The disclosure was the existence of the audio tape of a 9-1-1 call that the appellant submits resulted in irreparable prejudice in his ability to make full answer and defence.

[2] In our opinion, this ground must fail. The conduct of the police here was reasonable. There was no breach of the appellant’s Charter rights. There is no evidence to conclude anything other than the loss of the 9-1-1 tape was entirely inadvertent. The fact of its existence at trial appears to have come as an equal surprise and indeed simultaneously to the Crown, investigating officer and the defence. Even assuming he had established that his Charter rights were breached, in these circumstances, in order to succeed on an application for a stay (no other remedy was requested), the appellant would have to show irreparable prejudice. The trial judge clearly found that there was no such irreparable prejudice and that this was far from the “clearest of cases” that would justify a stay.

[3] Accordingly, the appeal is dismissed.

Signed: “G.D. Finlayson J.A.”

“K.M. Weiler J.A.”

“R.S. Abella J.A.”