The Crown’s Disclosure Obligations Regarding Lost or Damaged Evidence

Introduction

1. The remedies available to an accused when the Crown loses or damages relevant evidence can be seen to flow from three landmark cases with which all competent criminal lawyers are already quite familiar: Stinchcombe (1991) 2 ; O’Connor (1995) 3 ; and Carosella (1997) 4 .
Each case touches upon broad themes in criminal justice: the notion of full answer and defence; the right to disclosure or to production; the duties of the Crown and the police to preserve and disseminate documentary evidence; and the sense of fair play that underlies or ought to underlie our system of Canadian justice.


B. Historical Analysis – O’Connor & Carosella

2. It is popular and proper to think of the O’Connor decision as one that sets out the common law regime for the production of third party records, but as Justice L’Heureux-Dube pointed out in the majority judgment, “strictly speaking” leave had only been sought in the Supreme Court on the question of the appropriateness of a stay—a stay that was the product of non-disclosure of evidence from the Crown. The significance of O’Connor in this regard is critical in that it forms a cornerstone for Charter jurisprudence on the issue of Charter relief generally, and where and when a stay is appropriate.

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The Crown’s Disclosure Obligations Regarding Lost or Damaged Evidence by Patrick J Ducharme