Canada Case Law

R. v. Burke

Court

Court of Appeal for Ontario

The trial judge applied the correct legal tests, reasonably concluded that purging the withdrawn Murdock brief in accordance with a legitimate retention policy circa 2013 did not amount to unacceptable negligence, and, in any event, found a s.7 impairment from loss of the original Murdock statement and conducted a proper s.24(1) analysis; the Crown’s concession of negligence in parts of the English file did not produce material prejudice to trial fairness or undermine integrity given surviving evidence and tailored remedies, so a stay was not warranted; appellate deference to the trial judge’…

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• Lost evidence
• Similar‑fact evidence
• Unacceptable negligence
• S.7 charter – full answer and defence
• S.24(1) remedies
• Stay of proceedings

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R. v. Wiwchar

Court

Supreme Court of British Columbia

The court held Project Loyalty is generally a separate third-party investigation, but its ITOs are obviously relevant and must be reviewed for possible Stinchcombe disclosure.

• Stinchcombe disclosure
• O'connor third-party disclosure
• Mcneil duty to inquire
• Obstruction of justice
• Lost evidence
• First party vs third party records

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R. v. K.S.

Court

Court of Appeal for Ontario

The appeal is dismissed because there was no viable s.7 lost evidence claim: the WhatsApp messages remained under the appellant's control due to his refusal to provide passwords, police efforts to access the phones were bona fide and not negligently deficient, and any inaccessibility did not prejudice the defence given the strength of the Crown's evidence.

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• Lost evidence
• Section 7 charter
• Self-represented accused assistance
• Search and seizure
• Publication ban

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R. v. Taibinger

Court

Court of Appeal for Ontario

The trial judge adequately addressed identification discrepancies, permissibly found Kennedy credible and the appellant’s confessions reliable, and made dispositive factual findings on the lost evidence application; those findings were supported by the record and are owed appellate deference, therefore the convictions stand.

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• Identification evidence
• Credibility findings
• Lost evidence
• Confessions
• Dna evidence
• Appellate deference

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R. v. St. Clair

Court

Court of Appeal for Ontario

The application judge correctly found the police loss of the surveillance video breached the appellant's s.7 rights but, applying the established s.24(1) remedial framework for lost evidence and assessing actual prejudice, properly limited redaction to references that could not be tested (the appellant 'exhibiting the characteristics of an armed person'); the remaining corroborated ITO material (CI information, screenshots, surveillance and database corroboration) was sufficient for a justice of the peace to issue the warrant, so the warrant was valid and the appeal fails.

Source excerpt

• Section 8 charter
• Section 7 charter
• Section 24(1) remedy
• Section 24(2)
• Garofoli review
• Automatic excision rule

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R. v. Alkhalil

Court

Supreme Court of British Columbia

The court held that the loss of BlackBerry exhibits 18LW and 19LW was not shown to be due to unacceptable negligence by the VPD, and no stay was ordered at this stage.

• Lost evidence
• Unacceptable negligence
• Stay of proceedings
• Disclosure obligations
• Chain of custody
• Police exhibit management

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R. v. Sasano

Court

Supreme Court of British Columbia

Application for a stay was denied provisionally after the court found police unreasonably lost SD cards with video evidence, breaching s. 7, but not abuse of process.

• Lost evidence
• Duty to preserve
• Stay of proceedings
• Abuse of process
• Necessity defence
• Lawful use of property

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R. v. Janeiro

Court

Court of Appeal for Ontario

The convictions were unreasonable because the fingerprint match did not establish the print was placed in connection with the robbery (five prints on the bag, glove uncertainty), the saliva DNA on a public sidewalk was not shown to be linked to the robbery, eyewitness description was generic, and the trial judge materially misapprehended evidence (misstating number of prints, mislocating photo vantage point); additionally the security video was lost due to unacceptable police storage practices constituting a s.7 Charter breach, and an adverse inference that the video would not have assisted t…

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• Robbery
• Identification evidence
• Fingerprint evidence
• Dna evidence
• Lost evidence
• Charter application

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R. v. Grantmyre

Court

Nova Scotia Provincial Court

The court concluded the police were not unacceptably negligent in failing to obtain the entry surveillance video, the zoomed stills and the attack video were sufficiently probative that any lost footage did not cause actual prejudice to the accused's ability to make full answer and defence, the Charter s.7 application therefore failed, and on the merits the Crown had not proven identification of the assailant beyond a reasonable doubt so the accused was acquitted.

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• Attempted murder
• Assault
• Possession of weapon
• Disclosure obligations
• Charter s7
• Remedies under s24

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R. v. Alkhalil

Court

Supreme Court of British Columbia

The court dismissed a pre-trial lost-evidence application, finding the requested sales data were not in police possession or control and were not first-party disclosure.

• Lost evidence
• Disclosure obligations
• Preservation of evidence
• First party vs third party disclosure
• Stinchcombe
• Vukelich

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