R v K.D.S., 2021 SKCA 84

Court of Appeal for Saskatchewan Docket: CACR3231 Citation: R v K.D.S. , 2021 SKCA 84 Date: 2021-05-28 Between: Her Majesty the Queen Appellant And K.D.S. Respondent Before: Jackson, Barrington-Foote and Tholl JJ.A. Disposition: Appeal dismissed Written reasons by: The Honourable Madam Justice Jackson In concurrence: The Honourable Mr. Justice Barrington-Foote The Honourable Mr. Justice Tholl On appeal from: CRM 71 of 2017 (QB), Saskatoon Appeal heard: November 30, 2020 Counsel: Dean Sinclair, Q.C., for the Appellant Michael Owens for the Respondent Jackson J.A. I.

Introduction [ 1 ] This appeal concerns an accused’s right to full answer and defence and to a fair trial under s. 7 of the Canadian Charter of Rights and Freedoms . The central issue is whether the trial judge erred by imposing a stay of proceedings pre-trial, on the basis of voir dire evidence only, because video-recorded evidence of the accused from the morning of the offence had been destroyed.

The underlying issues are whether the trial judge erred by finding that the destroyed video-recorded evidence was strongly relevant to the accused’s defence and that it had been destroyed as a result of unacceptable negligence on the part of the Crown. [ 2 ] By way of a preliminary background, Mr. S’s infant daughter, LS, was found seemingly lifeless in her crib at about 8:00 a.m. on January 29, 2016. She was rushed to the hospital. It was subsequently determined that she had died sometime during the night of January 28–29, 2016. The Crown’s theory of the case became that Mr.

S, who is 6’4” tall, had inserted himself into LS’s crib and caused her death. [ 3 ] After being called to the home of LS’s mother at about 9:00 a.m. on January 29, 2016, the police found Mr. S in a different bedroom than where LS had been sleeping. Mr. S was taken to the police station for questioning. Regrettably, the police did not retain the video-recorded evidence of Mr. S for the period from about 10:00 a.m. that morning until 10:00 p.m. that evening. The Crown was not aware that this evidence was missing until after it had been destroyed.

At the time, video-recorded evidence was automatically overwritten 400 days after being created. [ 4 ] Mr. S was charged with two counts of criminal negligence in relation to the death of LS: (

a) committing manslaughter contrary to s. 236 of the Criminal Code , and (

b) causing death contrary to s. 220 of the Criminal Code . Mr. S elected to be tried by a jury. Prior to trial, a four-day voir dire was held before the designated trial judge. The purpose of the voir dire was to determine (

a) whether a statement that Mr. S had made to the police was voluntary, (

b) whether the police appropriately gave Mr. S his right to counsel in accordance with s. 10(

b) of the Charter , and (

c) whether the loss of the video-recorded evidence breached his rights under s. 7 of the Charter . [ 5 ] Five police officers and one police civilian witness testified for the Crown during the voir dire . From these witnesses, defence counsel elicited evidence about the importance of Mr. S’s level of sobriety when he was first arrested. Defence counsel also confirmed with the police witnesses that one or more officers said there had been a large amount of urine in the infant’s crib. It was believed that this amount of urine could not have come from the child. In addition to the police evidence, Mr.

S also testified. He admitted he had been drinking on the night in question but stated he was not severely intoxicated when he was arrested. Mr. S’s testimony stood in stark contrast to the officers’ observations about his level of intoxication. [ 6 ] The trial judge held that Mr. S’s statement to the police was voluntary. However, he excluded it because the police had breached his s. 10(

b) rights ( R v K.D.S. (14 February 2019) Saskatoon, CRM 71 of 2017 (QB) [ Charter Fiat ]). The Crown does not appeal those aspects of the Charter Fiat . [ 7 ] With respect to the s. 7 application, the trial judge found that the video-recorded evidence was strongly relevant to the Crown’s case and to Mr. S’s defence. The relevance of the evidence manifested itself in two ways. First, it was strongly relevant for the purposes of raising a reasonable doubt regarding Mr. S’s level of intoxication, both as a matter of fact and as a means of testing the police officers’ credibility.

Second, the destroyed evidence might have been used to prove that Mr. S had not been in the crib because his clothing was not wet and he did not smell of urine. [ 8 ] The trial judge then turned to the Crown’s explanation for the loss. He did not find the Crown’s explanation reasonable. Instead, he found unacceptable negligence on the part of the Crown. He went on to say that the loss of this evidence caused “severe and irreparable” prejudice to the defence (at para 79) and that the “destruction of the recordings impairs Mr. S’s right to a fair trial” (at para 86).

As a remedy for the s. 7 breach, the trial judge directed a stay of proceedings pursuant to s. 24(1) of the Charter on both counts (at para 91). [ 9 ] The Crown appeals from the trial judge’s decisions regarding s. 7 and s. 24(1) of the Charter . The Crown alleges the trial

judge erred (

a) by finding a breach of s. 7 of the Charter , (

b) by deciding the matter before trial and on the basis of the voir dire evidence only, and (

c) by directing a stay of proceedings under s. 24(1) as the remedy for the s. 7 breach. [ 10 ] Trial judges have a discretion to grant a stay of proceedings on something less than a complete trial record. In cases involving lost or destroyed evidence, this discretion can only be exercised where the lost or destroyed evidence irreparably harms an accused’s right to a fair trial and it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the loss.

For the reasons that follow, I have concluded that this is one of those rare cases contemplated in the jurisprudence where a pre-trial remedy of a stay of proceedings was appropriate. The trial judge did not err by deciding that Mr. S’s right to a fair trial was so prejudiced that a remedy had to be granted before all of the evidence could be heard at trial. I also conclude that the trial judge did not commit a reversible error by imposing a stay of proceedings. II. Background [ 11 ] At approximately 8:00 a.m., on January 29, 2016, the police received a call about a serious injury to an infant.

Sergeant Aaron Moser and Cst. Mitchell Barber were two of the police officers sent to investigate. [ 12 ] When the police arrived at the apartment block, they found the scene to be chaotic. EMS paramedics were taking LS to the hospital in an attempt to revive her. The officers believed that all the adults who were interviewed had been drinking heavily. Statements made to the police on the scene accused Mr. S of passing out in the crib and later being pulled or lifted off of LS’s body.

It was determined that LS had been moved from one apartment to another before EMS had been called. [ 13 ] Sergeant Moser, who was the officer in charge, and Cst. Barber proceeded to the apartment where LS had originally been found. After having been unsuccessful in getting anyone to answer the door, the police entered. They discovered Mr. S asleep in a bed. LS’s crib was located in another bedroom. [ 14 ] The officers woke Mr. S. He pulled on pants that were lying next to his bed and found his identification. The officers then took him to Cst. Barber’s patrol car at about 8:50 a.m.

Constable Barber initially informed Mr. S that he was being detained in connection with an investigation into an injury to a child. He was given his s. 10(

b) Charter rights on that basis. Shortly thereafter, while still in the patrol car, he was advised that he was being detained with respect to “an investigation into the death of an infant” and he was informed that the infant was his child. He was again advised about his right to counsel. He told Cst. Barber that he wanted to exercise that right. From what was captured by the in-car video, it is apparent that Mr. S was devasted about the possibility that his child was dead. The trial judge described Mr.

S’s reaction as one of “shock and disbelief” when he was told in the patrol car that his daughter was dead (at para 31). [ 15 ] Mr. S was taken to the police station, arriving at about 10:00 a.m. Shortly after arrival, Mr. S spoke to his lawyer. He was held in police cells throughout the balance of the day until about 10:00 p.m., when police conducted two interviews with him. Mr. S was released from police custody early the next morning at about 1:30 a.m. [ 16 ] On May 12, 2016, the police arrested Mr. S. He retained Michael Owens, who wrote to Crown counsel requesting disclosure. Mr.

Owens provided a detailed list of what he required by way of disclosure including the following: “Any video or audio tapes connected with this matter”. [ 17 ] The Crown provided an initial disclosure package. On May 20, 2016, Mr. Owens wrote to Crown counsel, indicating what he had received by way of disclosure. [ 18 ] On June 10, 2016, Mr. Owens wrote again to Crown counsel, saying that certain items of disclosure had been received.

His letter also asked the Crown whether he could be assured that all of the items that he had requested in his May 12, 2016, letter had been given to him: Further to your email of the afternoon of June 7, 2016, we intend on seeking election after you can confirm that all of the disclosure we have requested pursuant to our request for disclosure contained in our letter of May 12, 2016 has been provided. Can you confirm whether you have gone through our disclosure request letter with the Police to ensure that we have complete disclosure before we make election? … We look forward to hearing from you.

It is not clear whether Mr. Owens was given a response to this letter. [ 19 ] On January 20, 2017, Mr. S elected to be tried by a judge and jury. A preliminary inquiry was held over five days from March 6 to 10, 2017. Mr. S was committed to stand trial on charges of manslaughter and criminal negligence causing death. However, on April 20, 2017, the Crown signed the indictment indicating the following charges: On or about the 29th day of January, A.D. 2016, at or near Saskatoon, Saskatchewan, did: 1) By criminal negligence, commit manslaughter of [LS], contrary to

Section 236 of the Criminal Code . 2) By criminal negligence, cause the death of [LS], contrary to

Section 220 of the Criminal Code . [ 20 ] The Court of Queen’s Bench took an active role in managing this case. Despite those efforts, approximately two months before the scheduled trial date, Crown counsel discovered that video recordings from the time of Mr. S’s initial detention at the police station at 10:00 a.m. until he was formally questioned at 10:00 p.m. had been destroyed. This meant, other than Mr. S’s interviews with officers at the police station, which took place after 10:00 p.m., all video surveillance of his time at the police station had been destroyed.

[ 21 ] In January of 2016, Saskatoon Police Service policy required retention of video recordings for 400 days only. Later in 2016, the video surveillance system was changed to allow video recordings to be stored for 800 days. At some point, the system was again updated to automatically store in-station video for 1,000 days. [ 22 ] In a letter written to Mr.

Owens on December 15, 2017, Crown counsel described what had happened: 2) With respect to your question regarding the detention video, I was not aware that the detention video was not disclosed prior to the preliminary hearing , and even at the time of the preliminary hearing. I did not intend to use that evidence during the preliminary hearing and failed to check the “flash drive” to confirm whether it was in a file folder on the drive . It was only after the preliminary hearing when I was preparing the file for Queen’s Bench did I notice that this video was not on the file.

On May 9, 2017, a request was made to Sgt. Boensch to obtain the detention video. On May 29, 2017, I was advised that the video was overwritten; however on November 8, 2017, I made another request for the detention video to be forwarded as I still had not received it. It was then; I realize that this request was answered back on May 29, 2017 by Sgt. Boensch. The Crown further canvassed with police whether they could provide me with a date of when it was overwritten. I understand from police that in 2016 video was usually overwritten 13 months after the incident.

It is clear from my file that I overlooked the response from Sgt. Boensch on May 29th . (Emphasis added) [ 23 ] In sum, approximately 12 hours of video recordings of Mr. S was irrecoverable. Crucially, all video-recorded interaction with Mr. S from when he entered the police station and while he was in the detention and the booking area was destroyed. Indeed, the January 29, 2016, video had been erased shortly before Mr. S’s preliminary inquiry, which took place in March of 2017. III.

Voir Dire Evidence [ 24 ] The following background describes the evidence that is relevant to assess the trial judge’s reasons as they relate to Mr. S’s s. 7 breach application only. [ 25 ] Two weeks were set aside for the voir dire . The Crown called the following witnesses: (

a) Sergeant Anthony Boensch – the officer managing the whole of the investigation into the death of LS; (

b) Constable Mitchell Barber – the officer who (

a) transported Mr. S to the police station, (

b) initially read Mr. S his rights under the Charter , and (

c) made arrangements for Mr. S to speak to Mr. Owens on the first occasion; (

c) Sergeant Aaron Moser – the officer in charge at the home on the morning of January 29, 2016, and who was present when Cst. Barber woke Mr. S; (

d) Sergeant Tyson Lavallee – the officer who read Mr. S the more particularized charges at around 10:00 p.m. on January 29 and advised him of his right to counsel; (

e) Sergeant Kory Ochitwa – the officer who conducted the 11:00 p.m., January 29 interview with Mr. S; and (

f) Mr. Reynold Mark – a member of the civilian arm of the police who was in charge of the video-recording processes at the Saskatoon police station. Mr. S testified for the purposes of counteracting the police evidence as to his level of intoxication and that the bed he slept in was the bed where the police had found him. [ 26 ] Of these witnesses, Sgt. Lavallee and Sgt. Ochitwa dealt with Mr. S later in the day on January 29, 2016.

As such, their evidence is of marginal relevance to the issue of the destruction of the recorded evidence. [ 27 ] I will now review the evidence of the remaining witnesses relevant to the Crown’s appeal. Specifically, I will focus on those aspects of the voir dire that speak to these issues: (

a) the police theory of the offence, (

b) Mr. S’s level of intoxication on January 29, (

c) the possible presence of urine in the baby’s crib, and (

d) what the destroyed video recordings could have been expected to cover. 1. Sergeant Boensch [ 28 ] Sergeant Boensch indicated what the police believed was the theory of the case. His testimony was significant in two respects. First, the police believed that Mr. S’s level of intoxication played a role in the offence. In that regard, Sgt. Boensch acknowledged that he had written the following in a case

summary that he had prepared for the prosecutor: Police received information that the father of the victim [Mr. S] may be down the hall in Apartment 4 and was responsible for the death by sleeping while extremely intoxicated on top of the infant in her crib . [Mr. S] was lifted off the infant who was carried to Apartment number 7 where 9-1-1 was called. (Emphasis added) [ 29 ] Sergeant Boensch’s testimony was significant in a second way. His testimony revealed that the police believed there was a large amount of urine in the crib and that this could have come only from Mr. S. This was the exchange between Sgt.

Boensch and defence counsel: Q All right. Now, the next paragraph talks about a search warrant, and halfway through it says this, quote: (As Read)

The crib is found to be soaked in a large amount of urine. [Mr. S] was also found to have urinated himself while sleeping in the crib. Okay. Where did that come from? A The large amount of urine in the crib would not have come from a child, and because the information we had that [Mr. S] was in the crib, that’s where the urine would have come from. Q But no police officer actually saw him in the crib? A That’s correct. Q Where did the information come from that he was actually in the crib then? A Ms. [B] (phonetic) and Ms. [TC] [LS’s mother] Q I see, okay. So no other independent sources? A No. Q Okay.

So when [Mr. S] is taken to the police station, do his pants get seized to show this -- like I’m -- I’m just thinking to myself this, and tell me if this makes sense. I’m no investigator. There’s a mattress and a crib. A person is said to have been on top of a child in this urine -- on top of this urine-soaked mattress? A M-hm. 2. Constable Barber [ 30 ] Constable Barber also testified extensively regarding his belief as to Mr. S’s level of intoxication. Constable Barber testified as follows: (

a) he could smell a strong odour of alcohol in the bedroom where Mr. S was sleeping and on his breath; (

b) Mr. S responded in a confused manner; (

c) Mr. S’s eyes were bloodshot and glassy and his speech was garbled, slurred and “kind of incoherent”; and (

d) he saw Mr. S stagger and move slowly as he walked around the apartment and needed a steadying hand as he walked down the stairs and into the patrol car. [ 31 ] Constable Barber’s testimony was explicit and uncompromising; he was of the view that in his “entire dealings with [Mr. S], from start to finish, he was impaired by alcohol -- or beverage alcohol up until the time that I was not dealing with him anymore”. [ 32 ] When Cst. Barber was outside of his patrol car, he was wearing a microphone and he was being recorded. The audio recording was played during the voir dire . After Cst. Barber and Mr.

S exit the patrol car, Cst. Barber is heard saying to someone else, “He’s hammered”. Defence counsel cross-examined Cst. Barber as to who he was talking to and whether the video recording would have captured that evidence. This is the exchange: Q MR. OWENS: Is that you saying, “He’s hammered”? A Yes, that’s correct. That was me. Q And you’re talking present tense, correct? A I was talking present tense when I was dealing with him. … Q MR. OWENS: Okay. … You’re having a conversation with somebody. Who is that other person?

A That would be a Major Crimes investigator that I don’t -- no idea who it would’ve been, like, the -- the actual officer. … Q Yes. A I don’t know who the exact officer was. Q All right. A But -- but by the sounds of the information that I’m giving, and I’m giving him briefing in regards to what had -- Q So you think it might be a Major Crimes officer, but -- first of all, you don’t know who it is; and secondly, you think it might be Major Crimes, but you’re not sure of that? A I’m -- I’m sure of it, but I guess that -- Q Okay. A -- I’m speaking to a police officer. Q Where is that conversation taking place?

A It would be in detention. Q Where in detention? A Where in detention? Q Yes, because detention is almost that entire floor because there’s cells, there’s a cell block, there’s a booking counter -- A Yeah. [ 33 ] Constable Barber agreed that the video surveillance system would have shown who he was talking to if the video had still been available. He also described generally the area of the police station that the destroyed video recordings would have covered: Q Is that whole floor video recorded? A Absolutely it is, yes.

Q And how many cameras have you been able to count in your experience there that -- that would record that floor? A I can give you an estimation, if you -- Q Please do.

A Okay. Q In fact, why don’t you do this: I’ll count, and you just list where the cameras are that you recall. A The cameras that I recall? Q Yes. A There is cameras in the entrance. Q Okay. A Yeah. They’re in the secure bay. Q Okay. How many there? A I can’t -- I can’t give you an exact number as to -- Q All right. A -- how many there are. Q All right. A And no, I -- I don’t notice that because when we go in there, we’re dealing with the individuals. And as far as the cameras, we know they’re there for our protection and theirs, so I don’t go around counting them.

What I do is, I know that they’re there, and there is, I would say, at least, from approximation in that area where -- the immediate area where we process individuals, I would say at least six or eight. Q In that one area? A Yeah, in that one area, which is -- which is -- Q Okay. Moving into the -- into the Saskatoon Police Service detention area, how many in the area where the booking counter is? A That’s what I -- that’s what I was referring to. Q Oh, that’s -- at least six? A That’s what I was referring to. Q All right. A They’re actually behind the counter and also in front of the counter. Q Right.

In fact, you can see several different things from several different angles if one has the video, correct? A That is correct. Q And we would be able to know, for example, who you were talking to if we had that video, correct ? A I would as well, yes . Q All right. So the video would be helpful in terms of getting the narrative correct, fair? A That is correct. (Emphasis added) [ 34 ] At one point in the cross-examination of Cst. Barber, defence counsel draws his attention to the fact that the in-car video, which was preserved, had demonstrated Cst. Barber’s mistake as to where his car had been parked.

This resulted in a line of questioning intended to show the importance of the detention video: Q And it’s when you actually watched the video that it reminded you, Gee, I – I was wrong on that; do you remember that? A Yes. I was mistaken. Q Okay. So the video in the police car was important, again, to remind you of the -- the true fact, correct? A That’s correct, yes. Q The same way the video at the police station would remind you of the true fact about where [Mr. S] went, who he was talking to, who you were talking to, where you went, correct ? A Yes . Q On all of those things?

A Yes. (Emphasis added) [ 35 ] Later in his testimony, Cst. Barber confirmed that Mr. S would have had contact with “at least half a dozen” people from the point of entering the detention area until he was placed in a holding cell. [ 36 ] Defence counsel also explored with Cst. Barber what theory the police were pursuing in their investigation of Mr. S into LS’s death: Q You had indicated on the -- the video that we’ve seen in court today that you had a theory about why [Mr. S] was involved in this. Do you remember seeing that on the -- the audio portion of what’s here? A Yes, I do remember hearing that, yes.

Q And to summarize that -- and tell me if this is accurate or not. To summarize that, you essentially said, He was hammered, he fell on top of the child in the crib, and the child suffocated; do you remember that? A I don’t recall saying falling on the child. Q Okay. A I do – but, yes, that he was hammered and that he did sleep on the child . Q I understand that. But that was – that was the theory you were working on as the investigator, correct? A As the person who was transporting. I was not the primary investigator. Q I appreciate that. But you were an investigator working on proving that theory, correct?

A Yes, that’s correct.” … Q Fair enough. So nobody disagreed with your theory, which was this guy was so drunk that he ended up on top of his child and the child suffocated underneath (INDISCERNIBLE). Nobody disagreed with that theory, correct? A No .

Q So one of the things you needed to prove the theory was drunkenness at the time, correct ? A That’s correct . Q And I take it, when you say at the detachment – or, sorry, at the police station at 10:10:05, “He’s hammered”, and you’re talking present tense, we’ve established, that he was still in that state that he was when you found him, correct ? A He was – he would’ve obviously been coming down due to the time frame, but, yes, he would’ve still been intoxicated . Q Okay.

So if I had the audio video of him at the station of that period of time you dealt with him, 9:42 to 10:29, I would then be able to challenge you to see if your theory was correct, fair ? A That’s fair, yes. Q You can see the materiality and the importance of maintaining that video and audio portion at the station, correct? A I do. Q And if this is as a result of alcohol intoxication, which again was part of the theory of the police, correct ? A That’s correct, yes. Q Okay.

If this was alcohol intoxication, he wouldn’t change very much from the point that you put him in the police car to the [point] that he would start appearing on the police video at the station, fair ? A Fair, yes. The approximate was an hour and 20 minutes – Q Right. A -- or so. Q Right. So essentially, we’d have a pretty good representative sample of how he was at the scene on the video at the police station fair ? A Yes, there would be comparison. (Emphasis added) [ 37 ] Defence counsel then introduced the issue of the urine in the crib: Q Okay. Was any clothing seized from [Mr. S] in your presence?

A I don’t recall any – Q Where does that typically take place? If you bring somebody in -- and -- and let’s say -- let’s use this as a theory. Let’s say that the mattress where this child was found was urine-soaked, okay? And the theory is [Mr. S] was so drunk that he fell on top of the child, okay? And that the theory is, is that if he fell on top of the child, there would be urine on his pants from that child. Where would they do the seizing of that sort of clothing to try and match him up at the crime scene ? A Ident would seize that clothing . Q Okay. Where would they do that?

A I can’t speak to their job function. (Emphasis added) 3. Sergeant Moser [ 38 ] Sergeant Moser confirmed all of Cst. Barber’s interactions with Mr. S in the apartment. As the officer in charge, he remained in the apartment to care for two other children. He testified that he did not know anything about urine having been found in a large quantity in the crib. He did, however, say that there was a lighter lying in the crib.

Pictures of that crib, filed as an exhibit in the voir dire , show the lighter and show that the crib was intact. [ 39 ] In cross-examination, defence counsel raised the theory of the case with Sgt. Moser: Q Because in the end, Sergeant, isn’t the -- the Crown’s theory that [Mr. S] was so drunk that he fell on top of this child, passed out, and smothered the child ? Isn’t that the Crown’s theory? A I believe that to be their theory . I’m not – [Q All right. A -- 100 percent certain what their theory is. Q All right.

So whether he is intoxicated or -- and again I want to use your words to make sure that I’m stating the Crown’s case accurately -- drunk or in an advanced state of intoxication , I’m describing [Mr. S], that’s important to the theory of proving that he’s either guilty of criminal negligence or manslaughter , right? A It is. However, I don’t know when [LS] was injured or when her injuries occurred, and I can only speak to what [Mr. S’s] condition was at the time I dealt with him . … Q MR. OWENS: Your theory on [Mr.

S] being drunk and in an advanced state of intoxication might be shown on the police video at the police station, right? That might support your conclusion, fair? A It might, yes. Q Yeah. Or it might potentially refute that, correct? A It might. However, we’re talking about two different points in time. We’re talking about the point in time where I observed [Mr. S] in the apartment, and then we’re talking about some later point in time in detention . … Q Maybe, Sergeant, we can agree that the video at the police station would be potentially relevant to that issue of the extent of his drunkenness . A Sure. Yes.

I can agree with that. While he was at the police station, not when he was taken into custody. …

Q Yeah. But the bottom line is the police station video would’ve told us whether he was getting worse or better -- A For sure. It would -- Q --or whether your -- A It would assist in that, yes, it would. (Emphasis added) 4. Sergeant Lavallee and Sergeant Ochitwa [ 40 ] Sergeant Lavallee and Sgt. Ochitwa dealt with Mr. S later in the day. Their evidence was called by the Crown to prove the voluntariness of Mr. S’s statement. As such, their evidence is of marginal relevance to the issue of the destruction of the recorded evidence. However, Sgt. Ochitwa did testify about what would have happened to Mr.

S’s clothing when he was taken into custody. That testimony is relevant to the issue of the urine in the crib: Q Where did his clothes go? A I believe they would have been seized as a matter of practice with persons arrested for death investigations, and others I suppose, but in death investigations that they would have been seized by Forensic Identification members. … Q … When were his clothes seized? Do you know that? A I believe that they probably would have been seized shortly after he was brought to detention the first time that morning. Q Where do they normally do that? At the detention booking counter?

A Not at the booking counter. There would be a separate room, private room, that that would occur in. Q All right. So if we had the video of the detention area, we would know when he had his clothes taken from him, correc t? A Yes . Q We’d know who seized them, correct ? A Yes . Q And you don’t know who that was? A Personally I don’t. (Emphasis added) 5. Reynold Mark [ 41 ] Reynold Mark was called to describe the operation of audio and video recording of events at the Saskatoon police station. Mr.

Mark is a member of the civilian arm of the police that is in charge of the video-recording processes at the Saskatoon police station. He was not sure whether the cameras at the booking and detention facilities recorded audio as well as video: “Video for sure, possibly audio”. He also testified that all recordings were kept for 400 days and, if a request were made for any particular day or days, it could be protected beyond that time. He confirmed that there would be at least six cameras recording events in the booking area of the Saskatoon police station. 6. Mr. S [ 42 ] Mr. S testified in his own defence.

He indicated that he had been drinking the night before. He admitted he was groggy when the police woke him but that he was not certain whether it was from alcohol consumption or from lack of sleep. He also said he had been working late. He denied that he was hammered. This is the exchange from the examination-in-chief: Q All right. How would you describe your state of sobriety at that time versus -- and I’m talking about in terms of alcohol versus what you referred to as groggy from sleep? A I would say it was good. Q Pardon me? A Good. Q It was good, okay.

Were you feeling any of the effects of any alcohol you had consumed the night before at that stage? A I’m not sure -- so sure if it was the alcohol or it was the short period of sleep, but, yeah, I was just groggy, and I -- it could have been from either one, lack of sleep or the fact I worked all night. Q Oh, okay. Can you tell us at what point that you would be certain that you were not feeling the effects of any alcohol any longer? A Probably say midday when -- it was somewhere around there when my brain I was still in -- I can’t really tell you where the -- Q Okay. A -- the effects wore off.

My brain was very -- well, I had a lot going on. Q Let me ask you this. You heard the police talk about your being unsure in your footing and the -- the -- the physical manifestations of alcohol consumption that they perceived, right, where they said, He’s hammered? When they alleged that you were, quote, Hammered at the police station and at your residence, do you believe you were? A No, I do not. Q Were you physically affected when you were first put in the police car by alcohol in terms of balance, dexterity, those sorts of things? A No.

[43] In cross-examination, Mr. S denied that he was drunk: Q You don’t agree that you were groggy?A No, I agree that I’m groggy, but you also said, And drunk, so you’re adding stuff to that line of questioning.Q And do you -- and you say you’re not -- you weren’t drunk?A No, I believe I said I wasn’t, and I told you that beforehand.Q Okay. Yeah. But that’s your belief?A No, that’s my belief.Q Yeah. But you don’t really recall clearly what happened that morning?A No. I can’t tell you. After I found out the information of my daughter, my mind went very dark and very twistedis my -- the best way I can put it.Q Okay.

You -- do you recall in your statement telling Sergeant Ochitwa where you went to bed?A Not entirely, but I did tell him it was a bed. (Emphasis added) IV. Charter Fiat in relation to the s. 7 and s. 24(1) issues [44] At various points in his decision, the trial judge set out the law from R v Stinchcombe, (SCC), [1991] 3 SCR326 at 339–340 [Stinchcombe]; R v La, (SCC), [1997] 2 SCR 680 [La]; and R v Banford, 2011 SKQB 418 at para 5,[2012] 3 WWR 835. Applying the statements of principle from these authorities, the trial judge concluded that the detention recordingswere strongly relevant.

He found relevance in two respects. [45] First, he held “it is clear that a question for the jury to determine at the trial is whether [Mr. S] was intoxicated” (at para 66).He understood that the most relevant period of time to consider Mr. S’s level of intoxication would be when Mr. S was said to have been inthe crib. Nonetheless, he found Mr. S’s level of intoxication in this after-period to be relevant as a means of assessing Mr.

S’s intoxicationat that earlier time and in testing the credibility of the officers: [67] The fact remains, though, that the jury may be in a position to draw inferences about his earlier level of intoxication, if any, from theextent of his intoxication, if any, when he was found in the bedroom and thereafter. To the extent that the jury will be invited to find as afact that [Mr. S] climbed into the crib and slept on top of the infant while intoxicated, the evidence as to his subsequent intoxication orotherwise is relevant. [68] Further, both Sgt. Moser and Cst. Barber were firm in their evidence that [Mr.

S] was intoxicated when they woke him in the otherbedroom and thereafter. Cst. Barber, for example, told others in the detention area of the police station that [Mr. S] at that time was“hammered”. What might be shown on the detention recording could assist the jury in determining whether [Mr.

S] in fact was intoxicatedin the detention area, which in turn could assist the jury in assessing the credibility or reliability of those officers. (Emphasis added) [46] Second, he held that the destroyed video evidence was further relevant as it pertained to the allegation of urine in the crib: [69] The second respect in which the evidence is relevant relates to the suggestion that [LS’s] death was caused by [Mr. S] having climbedinto the crib and slept on top of her. In this regard, the police noted the presence in the crib of what Sgt.

Boensch described as a largequantity of urine, much more urine than could be produced by an infant. [70] It is significant that Sgt. Boensch described this quantity of urine as having been found pooled on the plastic blanket in the crib –pooled rather than having been absorbed, because the plastic did not absorb liquid. [71] The defence asserts that the detention recordings readily could show views of [Mr. S’s] pants – before they were taken from him – toassist the jury in determining whether there was any indication of those pants having absorbed a liquid.

The relevance of this suggestionbecomes apparent when one considers that the pooled urine on the plastic blanket might have been expected to have been absorbed by[Mr. S’s] clothing if he had been in the crib. [72] In this way, the detention recordings could have been of substantial assistance to the jury in determining the facts of the matter –particularly the crucial fact of whether [Mr.

S] had been in the crib. (Emphasis added) [47] The trial judge characterized the level of relevance as being strong and the police actions in failing to preserve the evidence asbeing not reasonable: [73] I conclude that the detention recordings are relevant to trial questions, including strong relevance which, as Justice Sopinka said inLa, increased the degree of care expected in relation to preservation of the evidence. It was not reasonable for the police to have failed topreserve the detention recordings.

The relevance of the recordings ought to have been apparent to the police in light of the police theoriesrelating to [Mr. S’s] state of intoxication and relating to the condition of his pants. (Emphasis added) [48] He found that “this became even more the case following [the defence’s requests] of the Crown, while the detention recordingsremained in existence” (at para 74).

[49] He described the evidence as having been destroyed “through unacceptable negligence”: [77] This is not a matter of the police having intentionally destroyed evidence to thwart the defence. It is not a matter of bad faith. It is amatter, though, of the evidence having been destroyed through unacceptable negligence. The reasonable conduct on the side of the policeand the Crown required recognition of the relevance of the detention recordings and preservation of the recordings before they wereoverwritten by the system.

As I have said, the necessity of such steps was bolstered by the defence request for any and all recordings. (Emphasis added) [50] Having found a s. 7 breach, the trial judge turned to the question of remedy. He considered whether he should grant a stay. Hereviewed Stinchcombe, La, R v Regan, 2002 SCC 12 at para 54, [2002] 1 SCR 297 [Regan], and R v Poletz, 2014 SKCA 16 at para 13,[2014] 5 WWR 241 (quoting R v O’Connor, (SCC), [1995] 4 SCR 411 at para 82 [O’Connor]). [51] He concluded that Mr. S had been prejudiced by the destruction of the video evidence. He held that the absence of thisevidence prevented Mr.

S from making full answer and defence: [85] Here, the prejudice caused by the destruction of the detention recordings will deprive the jury of relevant evidence that would assist itin determining trial issues of fact, particularly whether [Mr. S] had been in the crib. More to the point, the unavailability of that evidenceprevents [Mr. S] from making full answer and defence. The detention recordings may have constituted evidence that left the jury with areasonable doubt as to his guilt. If the trial proceeds, that deficiency in the available evidence will remain.

There is no way to remedy thatdeficiency, because the recordings are destroyed. [86] … There is no way to remedy the prejudice to [Mr. S’s] right to make full answer and defence. The destruction of the recordingsimpairs [Mr. S’s] right to a fair trial. [52] Both at the beginning of the Charter Fiat, and at the end, the trial judge considered whether he should reserve his decisionuntil the end of the trial.

He concluded his reasons by saying as follows: “That deficiency will stand as clearly and significantly at theconclusion of trial evidence as it does today” (at para 86). [53] The trial judge found he had “no option other than to order an immediate stay of proceedings” (at para 87). V. Jurisdiction and Issues [54] The Crown’s right of appeal is found in s. 676(1)(

c) of the Criminal Code: Right of Attorney General to appeal 676

(1) The Attorney General or counsel instructed by him for the purpose may appeal to the court of appeal (

a) against a judgment or verdict of acquittal or a verdict of not criminally responsible on account of mental disorder of a trial court inproceedings by indictment on any ground of appeal that involves a question of law alone; … (

c) against an order of a trial court that stays proceedings on an indictment or quashes an indictment … . (Emphasis added) [55] Crown counsel asserts that, unlike an appeal under s. 676(1)(a), the Crown’s right of appeal under s. 676(1)(

c) is not restrictedto questions of law: see R v Nguyen, 2013 ONCA 169 at para 46, 303 OAC 29. This is no doubt true, but it does not address the standardof review, which is where the real assessment of an appellate court’s powers is determined. I will indicate the standard of review that Ihave applied during the analysis of the issues. [56] As noted in its factum, the Crown states these are the points in issue: (

a) Did the trial judge err in finding the Crown violated Mr. S’s right to make full answer and defence by failing to preserve theevidence? (

b) Did the trial judge err by directing a stay of proceedings pursuant to s. 24(1) of the Charter? [57] The obligation to order and sort the issues for the purpose of writing reasons gives the appearance that each issue is decided insequential order, with each issue standing on its own. The reality of the decision-making process in this appeal is far different from that.This is so because of the nature of the second issue.

In R v Babos, 2014 SCC 16, [2014] 1 SCR 309 [Babos], Moldaver J. confirmed that astay of proceedings is warranted in the clearest of cases only. [58] The trial judge’s decision to order a stay of proceedings pre-trial brings into play an additional line of authority, which beginswith La.

In La, Sopinka J., while leaving room for the exceptional case, held that it will usually be preferable to reserve on a s. 24(1)application unless it is clear that no other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse(at para 27). [59] Having regard for Babos and La, if I had concluded that a pre-trial remedy was not appropriate, it would serve little purpose torecord my analysis as to whether there had been a breach of s. 7.

The preferable course of action would be to allow the appeal on the basisof the second issue, i.e., by finding that a pre-trial remedy was not appropriate and permitting Mr. S to renew the issue later in the trial. Inthis appeal, since I have concluded the trial judge did not err by imposing a pre-trial remedy of a stay of proceedings, I will begin these

reasons with why the trial judge did not err by finding a breach of s. 7. VI. Analysis A. The trial judge did not err by finding a s. 7 breach 1. General principles on evidence preservation [60] In a recent decision, Kalmakoff J.A. succinctly summarized the principles to apply when assessing the Crown’s obligation topreserve relevant evidence: R v Cathcart, 2019 SKCA 90 at paras 27 to 29, 380 CCC (3d) 357 [Cathcart]. Of those principles, thefollowing are germane to this appeal: (

a) Where an accused establishes on a balance of probabilities that relevant evidence once in the Crown’s possession has beendestroyed, the onus shifts to the Crown to provide an explanation for the destruction. (

b) If the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed through unacceptable negligence,the duty to disclose has not been breached. (

c) If the explanation offered by the Crown for the loss or destruction of the evidence is insufficient to absolve it of unacceptablenegligence, a breach of s. 7 of the Charter is established. (

d) In assessing the adequacy of the Crown’s explanation, a court must analyze the circumstances surrounding the loss of theevidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances topreserve the evidence for disclosure. (

e) The degree of care expected in the preservation of evidence will generally be commensurate with its relevance. [61] Using Cathcart as the framework for this appeal, I will consider, under separate headings, the questions of relevance, theCrown’s explanation for the destruction of the video-recorded evidence and whether an accused must demonstrate actual prejudice. 2.

Standard of review [62] Recently, in R v Lichtenwald, 2020 SKCA 70, 388 CCC (3d) 377 [Lichtenwald], Barrington-Foote J.A. indicated that “[i]ssuesas to the scope and application of a Charter right raise questions of law, reviewable on a correctness standard …” whereas findings of fact“are reviewable on the palpable and overriding standard …” (at para 22). [63] In this case, two findings underpin the trial judge’s conclusion that there was a s. 7 breach: (

a) the missing evidence wasstrongly relevant to the defence, and (

b) the evidence was destroyed as a result of unacceptable negligence on the part of the Crown or thepolice. These appear to be findings made on the evidence and, as such, have more in common with questions of fact than law. However, ifone examines the results of the case law, courts of appeal have reviewed such questions on a correctness standard. See, for example, R vDeslauriers, 2020 QCCA 484, 453 DLR (4th) 234, aff’d 2021 SCC 3, 453 DLR (4th) 229. In this appeal, without deciding the issue, Ihave reviewed the above two findings on a correctness standard. 3. Relevance a.

General principles on relevance [64] Justice Sopinka wrote four unanimous or majority decisions for the Supreme Court that touch on the meaning of relevance andhelp to define its content: Stinchcombe; R v Egger, (SCC), [1993] 2 SCR 451 [Egger]; R v Chaplin, (SCC), [1995] 1 SCR 727 [Chaplin]; and R v Carosella, (SCC), [1997] 1 SCR 80 [Carosella].

In Stinchcombe, the barfor disclosure of documents was set as follows: “No distinction should be made between inculpatory and exculpatory evidence. … TheCrown must, therefore, disclose relevant material whether it is inculpatory or exculpatory”, unless it is privileged information (at 343–344). In Egger, Sopinka J. added this nuance (at 467): One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant andshould be disclosed – Stinchcombe, supra, at p. 345.

This requires a determination by the reviewing judge that production of theinformation can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in makinga decision which may affect the conduct of the defence such as, for example, whether to call evidence. [65] In Chaplin, Sopinka J. stressed that “relevance is determined in relation to its use by the defence” (at para 22).

Stinchcombe,Egger and Chaplin are disclosure cases, but the principles regarding relevance crystallize in Carosella, which is a case of deliberatelydestroyed notes in the hands of a third party. [66] In Carosella, Sopinka J. described the relevance of the missing evidence in that case in these terms: “it was open to the trialjudge to conclude that the notes were likely relevant, in that they might have been able to shed light on the ‘unfolding of events’, or mighthave contained information bearing on the complainant’s credibility” (emphasis added, at para 44).

Continuing in that same paragraph, healso found relevance stemming from the fact that the notes “related to the complainant’s initial disclosure of the alleged incidents to theworker at the Centre”. He further opined that “the possibility existed that the notes would have affected the outcome of the case in amanner favourable to the appellant”. This latter point was premised on the possibility that the notes might have “contained inconsistenciesupon which the complainant could be cross-examined”.

[67] With this as the foundation, Sopinka J. identified these possible uses of the destroyed notes to the defence (at paras 45 and 46): (

a) to cross-examine the witness on inconsistent statements; (

b) to assist the defence in the preparation of cross-examination questions by revealing the state of the complainant’s perceptionand memory or that some of the complainant’s statements resulted from suggestions made by the interviewer; (

c) to point the appellant in the direction of other witnesses; and (

d) to demonstrate to the accused that they would not have to testify at the trial or, conversely, that they would have to mount adefence. [68] Then in R v Taillefer; R v Duguay, 2003 SCC 70 , [2003] 3 SCR 307 [Taillefer], Lebel J. confirmed the Carosellaapproach to determining the degree of relevance. Justice Lebel described the uses that the appellant could make of the undisclosedevidence in that case (at para 112): (

a) to impeach the credibility of a number of witnesses; (

b) to undermine the plausibility of the prosecution theory; and (

c) to open new avenues for investigation, which could have led to the discovery of new witnesses. [69] It is against this backdrop that the destroyed video-recorded evidence in this case will be assessed. b. Relevance of intoxication to the theory of the Crown and the defence position [70] The Crown accepts that the video recordings were relevant evidence. It does so on the basis that the Stinchcombe threshold forrelevance is very low. That said, the Crown challenges the trial judge’s assessment that the evidence was strongly relevant. In that regard,the Crown asserts the following: (

a) Mr. S’s state of sobriety was not an essential element of the offences charged, and, depending on the nature of the trialevidence, he could be properly convicted even if he caused the death of the child in a sober condition; (

b) it was an error of law to presume Mr. S’s state of sobriety at the police station would say anything about his state of sobrietywhen he allegedly injured LS; and (

c) it would be highly unlikely that the jury would be able to draw any reasonable inferences about the state of Mr. S’s sobriety indetention simply by looking at a video. [71] Certainly, Mr. S’s state of sobriety was not an essential element of the offences with which he was charged, and he could beproperly convicted even if he caused the infant’s death while sober. But this was not the theory of the Crown as understood by anyoneduring the voir dire that took place just a few weeks before the trial. None of the evidence called or submissions made indicated that theCrown was pursuing any theory other than that Mr.

S was severely intoxicated, negligently inserted himself into the infant’s crib, fellasleep and suffocated the infant. The police were operating under the assumption that Mr. S was so intoxicated he somehow fell asleep onLS in her crib. [72] The trial judge heard from every police officer with whom the Crown believed Mr. S had meaningful contact over a 16-hourperiod. He saw three video recordings of Mr. S interacting with the police: (

a) the in-car video, (

b) the interview with Sgt. Lavallee, and(

c) the taking of Mr. S’s statement by Sgt. Ochitwa. He also heard from Mr. S, who was examined and cross-examined with respect towhat he had consumed that night and with respect to his level of sobriety. [73] All of the police officers who had dealt with Mr. S had formed the view that he was highly intoxicated when he was firstawoken and that he remained so when he was taken into custody at the police station one hour later. To repeat, Cst. Barber confirmed inno uncertain terms that he was of the view that in his “entire dealings with [Mr.

S], from start to finish, he was impaired by alcohol -- orbeverage alcohol up until the time that I was not dealing with him anymore”. Sergeant Moser testified to similar effect. Mr. S, however,denied that he had been intoxicated to the levels suggested by the police officers. He testified that any abnormal behaviour he may havedemonstrated was attributable to the shock of receiving the news of his child’s death. [74] The theory of the police is one matter and the theory of the Crown is another. Yet, trial Crown counsel did not say to the trialjudge that the Crown would not be relying on Mr.

S’s state of sobriety that night. Instead, it was the Crown’s position at trial that thevideo-recorded evidence would not reveal any evidence relevant to that issue: My friend also alludes to the fact that the detention video is so important because it would have showed his demeanour and his state ofimpairment at the time of arriving to the detachment, and we submit that this incident clearly happened before he was taken to thedetachment.

We don’t have an exact precise time of his state of impairment or what he would have been like at the time of the incident,and we certainly have the evidence of the officers, their viva voce evidence, of when they arrested him what his demeanour was like. Wesee him in the back of the police car.

And, My Lord, I submit to you that that period of time in the detachment is -- is minimal in terms ofinteraction with -- with any of the police officers other than him being at the booking counter. (Emphasis added) [75] In light of the charges, the evidence and the Crown’s submissions, the trial judge cannot be faulted for concluding that thepolice theory was the only plausible theory. No other theory was presented to him. Further, even if the Crown’s theory changed at trial,the police evidence as to what they had found and what they had believed would not.

Finally, the trial judge was provided with thepictures that were taken of the bedroom containing the crib, which showed it was still intact. He was also informed that the clothing that

had been worn by Mr. S when he was taken into custody was no longer available. [ 76 ] The relevance of any evidence pertaining to Mr. S’s level of intoxication is particularly important in light of the charges. The Crown did not allege an intentional act. Instead, the charges require the Crown to prove criminal negligence beyond a reasonable doubt. To discharge its burden, the Crown would have to prove that, by crawling into or putting himself into LS’s crib, (

a) Mr. S, by his acts or omissions, endangered her life and safety and thereby caused her death, and (

b) his conduct was a marked and substantial departure from that of a reasonable person in the same circumstances. Intoxication need not be proven; but, given the nature of the scenario, the police officers’ testimony regarding intoxication would play a significant role in answering the inevitable questions in the jurors’ minds: How, under what circumstances and why does a 6’4” man get into a crib if he is not intoxicated?

From the defence’s perspective, as presented in the voir dire , it would be necessary to respond to those questions by contesting the evidence of the police officers, by asserting that only an intoxicated adult would get into a baby’s crib, and Mr. S was not intoxicated. [ 77 ] Using the avenues of inquiry outlined in Carosella and Taillefer , these are the uses that might have been made of the destroyed video-recorded evidence: (

a) to shed light on the unfolding of events; (

b) to cross-examine the police witnesses and potentially impeach their credibility as to the level of Mr. S’s intoxication; (

c) to open new avenues for investigation, which could lead to the discovery of new witnesses, principally as they related to the officers who had contact with Mr. S in the detention and booking areas; (

d) to demonstrate to Mr. S whether he would not have to testify at the trial as to his level of sobriety; and (

e) to undermine the plausibility of the prosecution’s theory that he was intoxicated. c. Relevance of the urine in the crib [ 78 ] The Crown submits the following defence assumptions about urine in the crib are speculative: (

a) there was urine in the crib when Mr. S was in the crib with the infant, (

b) Mr. S’s position in the crib was such that his clothing came into contact with the urine, (

c) Mr. S was wearing pants when he was in the crib, (

d) Mr. S did not change his wet clothing after being in the crib, and (

e) there was not enough time between when Mr. S was in the crib and when he was at the police station for his clothing to have dried. Crown counsel on appeal also submits that there is nothing in the transcript that suggests that the urine-soaked pants were relevant to its theory of the case. [ 79 ] But this is not quite accurate in light of Sgt. Boensch’s evidence. In cross-examination of Sgt. Boensch, this is the relevant exchange, and I repeat: Q All right.

Now, the next paragraph talks about a search warrant, and halfway through it says this, quote: (As Read) The crib is found to be soaked in a large amount of urine. [Mr. S] was also found to have urinated himself while sleeping in the crib. Q Okay. Where did that come from? A The large amount of urine in the crib would not have come from a child, and because the information we had that [Mr. S] was in the crib, that’s where the urine would have come from. Q But no police officer actually saw him in the crib? A That’s correct.

Thus, contrary to the Crown’s submissions, there is something in the transcript; and, more importantly, the police officers do have knowledge about the presence of urine in the crib, which then leads to the question of whether there was urine on Mr. S’s pants. [ 80 ] It is true that trial Crown counsel disavowed any reliance upon a theory associated with urine in the crib: My friend had suggested and made some -- put some questions to some of the witnesses about urine-soaked pants, and he -- he’s brought -- he brought it up quite a few times through the -- through the voir dire .

My Lord, I’d submit to you that -- and you heard in testimony that the accused’s pants were -- were dry. The officers didn’t testify as to anything or any smell of urine. He was found with shorts on when he was arrested, and he got dressed, and there’s nothing that suggests the theory of urine-soaked pants . My friend put it to one of the witnesses that if he did have urine-soaked pants, the detention video would -- you would see this, and he has failed to demonstrate the relevance of this .

The -- the defence clearly has put what he thinks is the Crown theory to you, and we’re not submitting this ever occurred, and it wasn’t even brought up at the prelim. So we don’t find what the relevance of the detachment video would bring to these proceedings. (Emphasis added) [ 81 ] However, the fact that the Crown did not intend to draw a link between Mr. S’s presence in the crib and any urine in the crib or on his pants is not the point to be made here. Even if the Crown does not lead the officers’ evidence about the urine in the crib, it does not mean that Mr.

S might not be able to raise a reasonable doubt by virtue of the fact that the video showed his pants were dry and no officer at the booking station smelled urine or commented on the fact when his pants were taken from him. That is the point of the trial judge’s finding of relevance. Clearly, it is speculative on this record whether there was a lot of urine in the crib, but it is not speculative that one or more police officers were operating on the theory that evidence of urine would be on whoever was in that crib. Some of the same points that I made in paragraph [77] apply in this context: (

a) to shed light on the unfolding of events; (

b) to cross-examine the police witnesses and potentially impeach their credibility regarding the state of his clothing;

(

c) to open new avenues for investigation, which could lead to the discovery of new witnesses; and (

d) to demonstrate to Mr. S that he would not have to testify at the trial or, conversely, that he would have to mount a defence. d. Conclusion on relevance [82] Contrary to the Crown’s submissions on appeal, the trial judge did not fail “to assess the degree of relevance” of the destroyedevidence. He did assess the degree of relevance as his reasons show. Nor did he “resort to speculation to presume the evidence hadanything more than marginal relevance”. Given the theory of the Crown and of the defence as understood during the voir dire, regardingthe link between Mr.

S’s level of intoxication and the criminal negligence charge, the destroyed video-recorded evidence was, as the trialjudge said, strongly relevant for the uses that could be made of that evidence. Since one or more police officers believed that there hadbeen a large amount of urine in the crib, which could then form the basis of cross-examination, the destroyed evidence may not be asimportant to this aspect of Mr. S’s full answer and defence, but that does not detract from the trial judge’s finding that the destroyedevidence was nonetheless relevant on this point as well. [83] It bears repeating here that Mr.

S bore the burden of proving relevance on the balance of probabilities. There was no questionthat relevant evidence was destroyed. The question upon which the s. 7 breach turned was the degree of relevance and its link to a findingof unacceptable negligence. This too had to be proven on a balance of probabilities – but no greater burden than that. To discharge thatburden, Mr.

S relied upon the evidence of the police officers called by the Crown to prove the voluntariness of his statement and whetherhe had been given his rights under s. 10 of the Charter, plus the evidence of the civilian officer in charge of the recordings. Mr. Ssupplemented that evidence with his own. Crown counsel called no evidence to refute the claim that there were six cameras recordingMr. S’s every movement in the detachment during the crucial detention and booking period and possibly producing audio of all of hisinteractions with the police.

In light of this, I have concluded that the trial judge was correct in finding, on a balance of probabilities, thatstrongly relevant evidence was destroyed. 4. Unacceptable negligence on the part of the Crown [84] As Kalmakoff J.A. indicated in Cathcart, after a trial judge determines that relevant evidence once in the Crown’s possessionhas been destroyed, the onus shifts to the Crown to provide an explanation for the destruction. In Egger, it was held that the Crown’s dutyto disclose gives rise to an obligation to preserve evidence. This was discussed in La.

Justice Sopinka set the test as to whether the Crownhad fulfilled its obligation to explain the loss of evidence at an assessment of unacceptable negligence: [20] … Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionallybe lost. The principle in Stinchcombe (No. 2), [(1994), 1994 ABCA 113 , 88 CCC (3d) 557], recognizes this unfortunate fact.Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence,the duty to disclose has not been breached.

Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosureobligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process hasoccurred, but that is a separate question.

It is not necessary that an accused establish abuse of process for the Crown to have failed to meetits s. 7 obligation to disclose. (Emphasis added) [85] To determine whether the Crown has satisfactorily explained its failure to preserve evidence, Sopinka J. indicated that a courtshould “analyse the circumstances surrounding the loss of evidence.

The main consideration is whether the Crown or the police (as thecase may be) took reasonable steps in the circumstances to preserve the evidence for disclosure” (emphasis added, at para 21).Significantly, he further wrote that “as the relevance of the evidence increases, so does the degree of care for its preservation that isexpected of the police”. [86] The Crown makes two arguments in support of its claim that the trial judge erred by finding unacceptable negligence on thepart of the police.

The first argument reduces to whether defence counsel should have done more to alert the Crown that relevant evidencemight be missing. The second argument asserts that keeping the evidence for 400 days is enough to discharge the burden on the Crown. [87] With respect to its first argument, Crown counsel makes three points: (

a) defence counsel is not just a passive recipient ofdisclosure, (

b) defence counsel knew or ought to have known that this allegedly important evidence had not been disclosed before it wasdestroyed, and (

c) defence counsel did not specifically alert the Crown to the missing evidence. Directed to this last point, Crown counseldescribed defence counsel as “an experienced criminal law attorney” who knew from experience and past cases “that the Saskatoon PoliceService and other police agencies in Saskatchewan video record detention areas of police stations and he also knew from experience thatthose recordings are not preserved indefinitely”. [88] Clearly, defence counsel in any criminal prosecution has obligations that go beyond simply receiving the disclosure package.

InR v Dixon, (SCC), [1998] 1 SCR 244 [Dixon], Cory J. makes that point: [37] … As officers of the court, defence counsel have an obligation to pursue disclosure diligently. When counsel becomes or ought tobecome aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remainpassive. Rather, they must diligently pursue disclosure. [89] In all cases, a judge must question whether the defence has diligently pursued disclosure from the Crown. In Dixon, defencecounsel was aware of the non-disclosed statements and did not request them (at para 53).

Similarly, in R v S.E.S. (1992), (SK CA), 100 Sask R 110 (CA), which is referred to in Dixon at paragraph 37, the defence “had knowledge of the material whichwas prepared and failed to request its production” (at para 28). In both cases, defence counsel’s failure to pursue disclosure hadconsequences for the allegation of a s. 7 breach. [90] According to the evidence in this case, defence counsel made two requests of Crown counsel reminding her that they were

seeking video-recorded evidence. Crown counsel indicated she did not need to have recourse to the video recordings during thepreliminary inquiry to prove the Crown’s case. In such circumstances, I do not think it could be said of one counsel more than the otherthat they knew or ought to have known about the video recordings before they were no longer in existence. Importantly, Crown counsel attrial did not suggest that defence counsel had comported himself contrary to the principles set out in Dixon.

She did not ask the trial judgeto find that defence counsel knew or ought to have known about the missing video recordings. Finally, on this point, the trial judge foundthat defence counsel had discharged his obligations by making two requests for the video-recorded evidence. I see no basis to interferewith this finding. [91] The Crown’s second argument was that the retention of the video-recorded evidence for 400 days should mean that it was notunacceptably negligent.

It is true that the recording was preserved by the system for 400 days, but the fact remains that this was stronglyrelevant evidence that neither the police nor the Crown perceived to be as such and it was not disclosed. On January 29, 2016, the policeofficers were gathering evidence to determine whether Mr. S would be charged. As part of that process, they were automatically gatheringvideo-recorded evidence at the police station that would track every movement of Mr.

S. [92] Neither the Crown nor the police turned their minds to whether it was necessary to preserve the evidence to meet the disclosureobligations of the Crown. As the Supreme Court said in Stinchcombe and Egger, the obligation of the police was to disclose allinformation, whether inculpatory or exculpatory (Stinchcombe at 344), that could “reasonably be used by the accused either in meetingthe case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, forexample, whether to call evidence” (Egger at 467).

In this case, the police officers and the Crown preserved all of the evidence tending toprove Mr. S’s guilt; but the evidence that might have assisted him in his defence was not preserved. In such circumstances, I do not believethe Crown can rely on a lengthy period of automatic preservation – a period of time that is not linked to the progress of the prosecution –to avoid a finding of unacceptable negligence.

I find support for this proposition in R v Bero (2000), (ON CA), 137OAC 336 (Ont CA) at para 18 [Bero]. [93] In Bero, a vehicle that was involved in a car crash was destroyed some five months after the event and before the defence hadmade its request to be allowed to examine it. The trial judge had concluded that there was “a reasonable possibility that a forensicexamination could produce relevant evidence” (at para 27).

In addressing whether the Crown had provided a satisfactory explanation forthe failure to preserve the vehicle, Doherty J.A. for the Court observed, “The destruction of potentially relevant evidence is notsatisfactorily explained where that destruction is occasioned by a failure to consider whether preservation of that evidence was necessaryto meet the disclosure obligations of the Crown” (at para 37). [94] In my view, those words apply here. It is not determinative that the video-recorded evidence was preserved for 400 days.

Thedestruction of the video-recorded evidence was “occasioned by a failure to consider whether preservation of that evidence was necessaryto meet the disclosure obligations of the Crown”. [95] In sum, I find no basis to conclude that the trial judge erred by finding that the video-recorded evidence was destroyed throughthe unacceptable negligence of the state officers in question. 5. The role of actual prejudice in the s. 7 analysis [96] The Crown asserts that an accused must show actual prejudice to their ability to make full answer and defence to prove a s. 7violation.

In support of this proposition, the Crown relies upon R v Anderson, 2013 SKCA 92 at para 65, 300 CCC (3d) 296 [Anderson]; Rv Bjelland, 2009 SCC 38 at para 21, [2009] 2 SCR 651 [Bjelland]; R v Bradford (2001), (ON CA), 151 CCC (3d) 363(Ont CA) at para 7; R v Mills, (SCC), [1999] 3 SCR 668 at para 75; Dixon at para 24; and R v Grimes, 1998 ABCA 9 atpara 8, 122 CCC (3d) 331 [Grimes]. [97] In my respectful view, when read together and in their entirety, these cases are authority for the proposition that it is only if theCrown overcomes the burden upon it to explain why the evidence has been lost or destroyed, that the accused must prove actual prejudice.Thus, in Anderson, Ottenbreit J.A. wrote as follows: “Absent a finding of unacceptable negligence, there was no basis for an immediatestay unless Mr.

Anderson established actual prejudice to his right to make full answer and defence sufficient to impair his right to a fairtrial (see: R. v. Bradford, (ON CA), 2001 151 C.C.C. (3d) 363 (Ont.

C.A.), at para. 8)” (at para 110). [98] Speaking for the Court in Cathcart, Kalmakoff J.A. makes the same point, which I repeat with a specific recitation of what hewrote: [30] If the explanation offered by the Crown for the loss or destruction of evidence is insufficient to absolve it of unacceptable negligenceor deliberate malfeasance, then a breach of s. 7 of the Charter is established: R v La, (SCC), [1997] 2 SCR 680 [La];Berner [2012 BCCA 466].

In such circumstances, there is no additional requirement that the accused establish actual prejudice resultingfrom the loss of the evidence: R v Carosella, (SCC), [1997] 1 SCR 80 at para 40. (Emphasis added) [99] To put these propositions in the positive, when a trial judge finds relevance and unacceptable negligence, it is not necessary forthe trial judge to go on to consider whether an accused is actually prejudiced before concluding there has been a breach of s. 7 of theCharter.

On point, in R v Forster, 2005 SKCA 107, 201 CCC (3d) 290 [Forster], Sherstobitoff J.A. quoted the following astuteobservation from Carosella: [26] … To require the accused to show that the conduct of his or her defence was prejudiced [to prove a breach of the Charter right todisclose] would foredoom any application for even the most modest remedy where the material has not been produced.

It would requirethe accused to show how the defence would be affected by the absence of material which the accused has not seen. [100] That is not to say that an accused who seeks a pre-trial remedy of a stay of proceedings does not have to demonstrate irreparableprejudice, but that is a different proposition and one that must be explored in connection with the next issue.

6. Conclusion on the s. 7 breach issue [101] To determine whether the trial judge committed a reversible error in finding a s. 7 breach, as I have indicated, the criticalquestions turn on whether he erred by finding (

a) the destroyed evidence to be strongly relevant to the defence, and (

b) the police and theCrown were unacceptably negligent when they failed to preserve the evidence. I have subjected both findings to a correctness standard ofreview. Having done so, I see no basis to interfere with the trial judge’s finding of a s. 7 breach. B. The trial judge did not err by granting a stay of proceedings pre-trial 1. General principles on granting a stay of proceedings [102] The leading decision with respect to the appropriateness of a stay of proceedings is now Babos. In Babos, Moldaver J. reiteratedthat a stay of proceedings is warranted in the clearest of cases only.

He described two categories of cases: “(1) where state conductcompromises the fairness of an accused’s trial (the ‘main’ category); and (2) where state conduct creates no threat to trial fairness but risksundermining the integrity of the judicial process (the ‘residual’ category) (O’Connor at para 73)” (at para 31).

The case before this Courtfalls into the main category. [103] Justice Moldaver discussed the prevailing case law in terms of a framework consisting of three requirements (Babos): [32] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of threerequirements:

(1) There must be prejudice to the accused’s right to a fair trial or the integrity of the justice system that “will be manifested, perpetuatedor aggravated through the conduct of the trial, or by its outcome” (Regan, at para. 54);

(2) There must be no alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests infavour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against “the interest thatsociety has in having a final decision on the merits” (ibid., at para. 57). … [34] Commencing with the first stage of the test, when the main category is invoked, the question is whether the accused’s right to a fairtrial has been prejudiced and whether that prejudice will be carried forward through the conduct of the trial; in other words, the concern iswhether there is ongoing unfairness to the accused. (Emphasis added) [104] In the case before this Court, the trial judge ordered a stay of proceedings pre-trial.

His decision brings into play a line ofauthority that begins with La. [105] In La, Sopinka J. recognized that “in extraordinary circumstances, the loss of a document may be so prejudicial to the right tomake full answer and defence that it impairs the right of an accused to receive a fair trial” (emphasis added, at para 24). In that paragraph,Sopinka J. went on to say that in such circumstances, provided the necessary criteria has been met, “a stay may be the appropriate remedy…”.

However, he stressed that it will usually be preferable to reserve on an application for a stay of proceedings until all of the evidenceis called. On this point, he wrote: [27] The appropriateness of a stay of proceedings depends upon the effect of the conduct amounting to an abuse of process or otherprejudice on the fairness of the trial. This is often best assessed in the context of the trial as it unfolds. Accordingly, the trial judge has adiscretion as to whether to rule on the application for a stay immediately or after hearing some or all of the evidence.

Unless it is clear thatno other course of action will cure the prejudice that is occasioned by the conduct giving rise to the abuse, it will usually be preferable toreserve on the application. This will enable the judge to assess the degree of prejudice and as well to determine whether measures tominimize the prejudice have borne fruit. This is the procedure adopted by the Ontario Court of Appeal in the context of lost evidencecases. In R. v.

B.(D.J.) (1993), 16 C.R.R. (2d) 381, the court said at p. 382: The measurement of the extent of the prejudice in the circumstances of this case could not be done without hearing all the relevantevidence, the nature of which would make it clear whether the prejudice was real or minimal. Similarly, in R. v. Andrew (S.) (1992), 60 O.A.C. 324, the court found at p. 325 that unless the Charter violation “is patent and clear, thepreferable course for the court is to proceed with the trial and then assess the issue of the violation in the context of the evidence as itunfolded at trial”. See also: R. v.

François (L.) (1993), (ON CA), 65 O.A.C. 306; R. v. Kenny (1991), (NL SC), 92 Nfld. & P.E.I.R. 318 (Nfld.

S.C.T.D.). (Emphasis added) [106] The appellate jurisprudence since La demonstrates that it is rarely appropriate for a trial judge to grant a stay of proceedings pre-trial: Grimes; Bero; R v Gilchrist, 2011 SKQB 445 at para 21, 387 Sask R 230, leave to appeal to Sask CA refused, 2013 SKCA 142, 427Sask R 258 [Gilchrist QB]; R v Crane, 2013 NLCA 44 at para 26, 288 CRR (2d) 183 [Crane]; and R v Girou, 2017 ABCA 426 at para 13,61 Alta LR (6th) 215 [Girou]. [107] It is tempting to treat the La line of authority and the Babos line of authority as distinct and as creating two separate tests: one fora pre-trial stay of proceedings and one for post-trial applications, but it would be a mistake to do so.

Both La and Babos are based onO’Connor, where L’Heureux-Dubé stated, “a stay of proceedings is only appropriate ‘in the clearest of cases’, where the prejudice to the

accused’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of thejudicial system if the prosecution were continued” (at para 82). Similarly, and as in Babos, all of the judges writing in O’Connoraddressed the need to balance the interests of the accused in a fair trial with the interests of society in receiving a decision on the merits. Lais cast in different terms than those used by Moldaver J. in Babos, but it is nonetheless an application of the same stringent test.

In La,Sopinka J. contemplated that a stay of proceedings could be imposed in an extraordinary case for a s. 7 breach caused by the loss ofrelevant documents occasioned by unacceptable negligence on the part of the Crown. This is an adjective that applies with equal force to adecision to grant a pre-trial remedy of a stay of proceedings when only part of the evidence can be known. 2.

Standard of review [108] Later in his reasons, Moldaver J. in Babos set the standard of review to be applied to the grant or refusal of a stay of proceedingsas follows: [48] … Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commit

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