Trial on sexual assault charge. Unexplained loss by RCMP of the audio statement provided by the complainant. Police took an initial statement while the complainant was “quite intoxicated” and very emotional. Later, a detailed recorded statement was taken. This second statement was lost.
Held: Section 7 breach. Stay.
Test set out in Svekla, 2010 ABCA 390: “A stay should only be granted where the prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable harm would be caused to the integrity of the judicial system if the prosecution were continued.” Cross-examination would be of vital importance in assessing the credibility of the complainant, and the loss of the statement created prejudice by severely limiting the defence ability to conduct a thorough cross-examination. “The Accused has a right to make full answer and defence. I put emphasis on the word ‘full’”.
E. McIntyre – Defence Counsel