Crown appeal of judicial stay of proceedings in sexual assault case. Audio recording of complainant’s statement to the RCMP was inadvertently lost. After preliminary inquiry but before trial, defence made application for a stay based on this acknowledged s 7 violation. Trial judge found that the breach caused prejudice to the degree that a stay was warranted.

Held: Appeal allowed, new trial ordered.

As per Bero, 2000 CanLII 16956 (Ont CA), courts should generally rule on lost evidence motions after evidence has been heard, except where the prejudicial effect of the lost evidence is clear. “On the record before us, the extent of the prejudice is largely speculative…the reasons for decision here demonstrate the inherent challenges with proceeding and ruling on this type of application in advance of trial”. Prejudice occurs when accused is unable to advance defence, rather than making raising the defence more difficult. Here, not ‘clearest of cases’ warranting a stay.

E. McIntyre – Defence Counsel