R. v. Chan

R. v. Chan

Viewing the security video during targeted investigative steps, knowing its relevance and having the ability to seize it established police 'possession' such that they had an obligation to preserve and disclose the clips; the failure to seize relevant clips constituted unacceptable negligence and breached the accuseds' s.7 rights to make full answer and defence; application allowed and remedy to be determined later.

Citation
2020 BCSC 189
Parties
Crown: Regina; Accused: Duke Yin Chan; Accused: Lawton Louis Ma
Court
Supreme Court of British Columbia
Jurisdiction
Canada
Judgment Date
18 February 2020
Procedural Posture
Criminal / Pre Trial Voir Dire (full Answer and Defence)
Outcome
Application allowed; s.7 Charter breach found due to police failure to preserve relevant security video
Legal Topics
Section 7 Charter, Disclosure Obligations (stinchcombe), Third‑party Production (o'connor), Police Duty to Preserve Evidence, Lost Evidence, Search Warrant / Information to Obtain
Source Language
English
Criminal Law Constitutional Law Evidence Law Section 7 Charter Disclosure Obligations (stinchcombe) Third‑party Production (o'connor) Police Duty to Preserve Evidence Lost Evidence +1 more

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Parties

Regina

Crown

Duke Yin Chan

Accused

Lawton Louis Ma

Accused

Procedural Posture

Criminal / Pre Trial Voir Dire (full Answer and Defence)

Legal Issues

  1. 1 Whether police viewing of third‑party security video during investigation constituted 'possession' obliging preservation and disclosure
  2. 2 Whether failure to preserve/seize viewed video amounted to unacceptable negligence and breached s.7 Charter rights to make full answer and defence
  3. 3 Whether the Crown had an obligation to produce video not held physically by police and the relevance of accused delay in requesting production

Ratio Decidendi

Viewing the security video during targeted investigative steps, knowing its relevance and having the ability to seize it established police 'possession' such that they had an obligation to preserve and disclose the clips; the failure to seize relevant clips constituted unacceptable negligence and breached the accuseds' s.7 rights to make full answer and defence; application allowed and remedy to be determined later.

Court Disposition

Application allowed; s.7 Charter breach found due to police failure to preserve relevant security video

Orders

  • Application allowed — finding of breach of s.7 of the Charter
  • Remedy to be determined at a later hearing (remedy hearing to be scheduled)