DATE: 20020527 DOCKET: C36914

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Appellant) v. PRESTON SCOTT and SHAUN EYRE (Respondents)

BEFORE:

CARTHY, DOHERTY and LASKIN JJ.A.

COUNSEL:

Joan Barrett

for the appellant

Breese Davies and

Daniel Brodsky

for the respondent

HEARD:

May 2, 2002

RELEASED ORALLY:

May 2, 2002

On appeal from the order imposed by Justice D.W. Phillips dated August 1, 2001.

E N D O R S E M E N T

[1] [1] It was open to the trial judge to conclude that the contents of the five minute videotape statement given by the eyewitness was lost as the result of “unacceptable negligence” by the police. The lost evidence was clearly relevant in the R. v. Stinchcombe sense and therefore properly disclosable. As the evidence was properly disclosable, the trial judge correctly held that its loss resulted in a breach of the respondents’ rights under s. 7 of the Charter.

[2] [2] We also agree with the trial judge’s finding that the breach of s. 7 did not rise to the level of an abuse of process.

[1] [3] The trial judge went on to conclude that a stay of proceedings was the appropriate remedy. We cannot agree with that conclusion. A stay of proceedings should be granted only in those cases where the loss of the evidence causes irreparable harm to the integrity to the administration of justice or where the loss of the evidence has caused such prejudice to the accused’s ability to make full answer and defence that there is no appropriate remedy other than a stay in proceedings. There is no suggestion that the integrity of the administration of justice was compromised by the loss of the contents of the videotape statement.

[2] [4] The trial judge was, however, satisfied that the lost evidence caused sufficient prejudice to the respondent’s ability to make full answer and defence so as to necessitate a stay. In coming to that conclusion, he accurately referred to the evidence of the police officer to the effect that the lost evidence “could” have involved a discussion relating to the identification provided by the eyewitness. The trial judge moved from this evidence to a finding that the lost evidence was “critically relevant” to the defence. In our view, that finding is unsupported by the evidence.

[3] [5] The lost evidence may or may not have been relevant to the defence and to the evidence given by the eyewitness. Its potential significance to the defence had to be assessed in the context of the evidence that was available to the defence relating to the eyewitness evidence. The eyewitness had given a detailed prior written statement. The witnesses involved in the making of the videotaped statement were available to the defence and notes taken by a police officer concerning the substance of the conversation during the videotaped statements were available to the defence. Those notes were used by the defence to effectively cross-examine the eyewitness. The lost evidence at its highest would have provided but one more weapon in what was already a well armed attack on the identification evidence.

[4] [6] The trial judge also failed to consider whether other remedies short of a stay would have overcome any prejudice caused by the loss of the videotaped statement. There were at least two other possible remedies. The trial judge could have considered the lost evidence in weighing the identification evidence, or the trial judge could have excluded the identification evidence entirely. Had the trial judge followed the second course, the case would have had to be decided on the basis of the direct evidence given by one of the participants in the robbery.

[5] [7] The trial judge erred in entering a stay. We would set aside that order and direct a new trial. In ordering a new trial, we add this observation. The trial judge properly waited until the end of the trial to decide the abuse of process application. However, he ruled on that application before addressing the merits of the case. He should have dealt with the merits first and then proceeded to the question of whether the proceedings should be stayed. There are at least two advantages to this approach. If the Crown had not proved the case against the respondents they were entitled to an acquittal, and not just a stay of proceedings. Secondly, by deciding the merits of the case and then the merits of the abuse of process application, the parties could have brought all appeals to this court at the same time and we could have brought an end to this matter. As it stands, there has been no determination on the merits and we must order a new trial.

“J.J. Carthy J.A.”

“Doherty J.A.”

“J.I. Laskin J.A.”