In R. v. Janeiro, 2022 ONCA 118, February 10, 2022, the accused was convicted of the offences of robbery and disguised with intent.  The evidence presented at the trial, established that the robbery occurred at a donut shop and that the shop’s security camera recorded the events. The perpetrator was wring a balaclava.  The Court of Appeal noted that the “security video was seized and viewed by four police officers of the Criminal Investigation Bureau (“CIB”) as part of the investigation. By the time of trial, the security video had gone missing”.

The accused appealed from conviction, arguing that the verdict was unreasonable and that the loss of this evidence should have resulted in a stay of proceedings being entered.

The Ontario Court of Appeal agreed with both submissions.  It overturned the conviction and entered an acquittal.

The Lost Evidence:

The Ontario Court of Appeal pointed out that when an accused person “has shown that disclosable evidence has been lost, a Charter breach contrary to s. 7 will be found unless the Crown has provided a satisfactory explanation for that loss, thereby demonstrating that an abuse of process has not occurred. The Crown may do so by establishing that the evidence has not been destroyed or lost by unacceptable negligence, that is, negligence that goes beyond mere negligence. This can be accomplished by showing that reasonable steps were taken in the circumstances to preserve the evidence, bearing in mind the relevance that the evidence was perceived to have at the time it was lost or destroyed” (at paragraph 107).

The Court of Appeal also pointed out that “a Charter applicant will succeed even in the face of a satisfactory explanation for the loss or destruction of evidence if they establish that the lost evidence is so important that its loss undermines the fairness of the trial: La, at para. 24. This is a difficult hurdle. In Bero, at paras. 49, 52, Doherty J.A. made it clear that showing a reasonable possibility that the lost evidence could have assisted the defence is not enough to establish that the right to full answer and defence has been undermined. This is so even though the inability to determine whether the lost evidence was harmful, neutral, or helpful to the defence may arise because of the loss of the evidence by the police. In order to demonstrate irremediable prejudice when seeking a remedy, a Charter applicant must establish that the evidence would have played an important role in their defence. I see no reason why the same standard would not apply in determining whether a Charter breach occurred on the basis that the loss of evidence undermined the fairness of the trial” (at paragraph 109).

In allowing the appeal, the Court of Appeal concluded that “the security video was important evidence that required care in its preservation… given the importance of this evidence, the steps that [the police] took to preserve that evidence were more than merely negligent, and resulted in the loss of evidence that may well have assisted Mr. Janeiro in his defence. In all the circumstances, I would find that the loss of the evidence breached s. 7 of the Charter” (at paragraphs 121 and 124).

However, the Court of Appeal also concluded that a stay should not be entered. The Court of Appeal held that a “stay is a remedy of last resort, reserved for the clearest of cases where important evidence has been deliberately destroyed, where the unacceptable negligence is extreme enough to cause irreparable harm to the integrity of the justice system, or where the accused establishes that the loss of the evidence has irreparably deprived them of evidence without which they cannot effectively present a defence” (at paragraph 125).