In R. v. Hilier, 2021 ONCA 180, March 24, 2021, the accused was convicted of a number of offences, including the offence of possession of prohibited substances for the purposes of trafficking. During the arrest of the accused, the police seized a number of items they found on him and in the police cruiser after they removed the accused from it at the police station. Constable Atchison destroyed some of these items without having taken pictures of them. These were described by the Ontario Court of Appeal in the following manner:
a. Coins ($9.70 Canadian currency), because he believed them to be “covered in a substance that [he] knew was an illicit substance.”
b. The “purse” containing the coins, which he indicated was an “oversight on [his] part.”
c. All of the drug packaging, which was not described with any specificity in the officer’s notes or in viva voce evidence.
d. A vial of suspected cannabis oil, which was not sent to Health Canada for testing.
The accused applied for a stay of proceedings, arguing that the destruction of the items infringed sections 7 and 11(d) of the Charter. The trial judge dismissed his application. The accused appealed.
The appeal was allowed. The Court of Appeal indicated that “[w]hen evidence is lost, the Crown must explain how the evidence was lost…In this case, the police did not take reasonable steps to preserve the evidence. To the contrary, the police purposely destroyed the evidence and did so without taking any photographs of it” (at paragraphs 28 and 29).
The Court of Appeal concluded that the trial judge “did not properly analyze the significance of the items that were destroyed to the majority of the offences charged…In order for the trial judge to properly consider the evidence on the issue of the drugs found in the rear of the cruiser, it cannot be refuted that being able to look at the fabric pouch would be of singular significance, especially in light of the differing descriptions given by the officers of the pouch. If the physical size of the pouch would lead to a conclusion that it could not realistically have been missed in a search of the appellant’s person, then that fact would have to pose a serious question whether the pouch was actually in the possession of the appellant. It could certainly raise a reasonable doubt regarding that fact” (at paragraphs 31 and 34).
The Court of Appeal held “the destruction of these items was the result of unacceptable negligence on the part of the police. Their destruction impaired the right of the appellant to make full answer and defence, resulting in a breach of the appellant’s rights under ss. 7 and 11(d) of the Charter” (at paragraph 39).
The Court of Appeal held that this case was not “one of those rare and clear cases where a stay is appropriate” (at paragraph 41). Instead, the Court of Appeal entered acquittals.