• Cases on Preservation Orders




    Case Name: R. v. Malik and Bagri
    Case Citation: 2004 BCSC 554
    Decision Date: April 2004  
    Court: British Columbia Supreme Court
    Link(s) to Case:

    Abstract: This case is part of the Air India criminal investigation. The defendants argue their section 7 Charter rights had been violated with the destruction of Canadian Security Intelligence Service (CSIS) notes and audiotapes relating to the interviews of Crown witnesses. The Crown acknowledged that the tapes had been destroyed and all information the RCMP obtained from CSIS should have been disclosed under R. v. Stinchcombe, but rejected the claim that their destruction resulted from unacceptable negligence, as defined in R. v. La. The Crown denied this accusation arguing that the information obtained from interviewing the witnesses resulted from “intelligence gathering” not “evidence gathering.” The Court rejected this position saying the original notes and tapes would have been the best evidence and “of extreme importance and relevance” to the criminal investigation and proper procedures should have been in place to ensure their preservation. The Court ruled the destruction of the evidence as unacceptable negligence.

    Keywords: Canadian Charter of Rights and Freedoms, destruction of evidence, preservation of evidence, unacceptable negligence, witness interviews

    Case Name: R. v. Bero
    Case Citation: 2000 CanLII 16956 (ON C.A.), 151 CCC (3d) 545
    Decision Date: November 2000  
    Court: Court of Appeal for Ontario
    Link(s) to Case:

    Abstract: In October 1996, the defendant was in a car accident with one other person. Hearsay evidence from the other party identified the defendant as the driver and a jury convicted him of impaired driving causing bodily harm and driving while intoxicated; he received a 30 month sentence. The defendant appealed his conviction. At issue in this case is the identity of the driver, a fact complicated by the police not preserving the vehicle in question. Following its investigation, the police confiscated the vehicle involved in the accident and sold it to an auto wrecker in December 1996, two months before the defendant was officially charged (he was recovering in a hospital). In March the following year, the car was destroyed. Counsel for the defense argued that since it could not examine the vehicle and conduct its own forensic examination to determine the identity of the driver, the police violated the defendant’s section 7 Charter rights. The Court of Appeal allowed the appeal primarily on the grounds that the defendant was prejudice at trial for not being allowed to voice the argument that the Crown failed to preserve evidence and allowed the defense to question witnesses as to why the evidence was not preserved and a more thorough forensic examination not conducted.

    Keywords: Canadian Charter of Rights and Freedoms, destruction of evidence, forensic examination, preservation of evidence

    Case Name: R. v. Badgerow
    Case Citation: 2008 CanLII 15895 (ON S.C.), 58 C.R. (6th) 367
    Decision Date: April 2008  
    Court: Superior Court of Justice – Ontario
    Link(s) to Case:

    Abstract: At issue in this case is the identification of the defendant who allegedly assaulted a woman in 1981. The initial case went unsolved but was reopened in 1998. Between the initial case and the reinvestigation, a substantial amount of evidence had been lost by the police department, including officer notebooks and photographs that would in the memory of witness testimony. Also, several of the original witnesses had since died or moved to unknown locations. Drawing from R. v. Stinchcombe and R. v. La, the Court ruled that the police department was at fault for the loss of evidence (the result of “an abuse of process”). The absence of the evidence “has caused actual and significant prejudice” to the defendant. The Court issued a stay of proceedings.

    Keywords: preservation of evidence, duty to disclose, identification, witness testimony

    Case Name: McDougall v. Black & Decker Canada, Inc.
    Case Citation: 2008 ABCA 353
    Decision Date: October 2008  
    Court: Court of Appeal of Alberta
    Link(s) to Case:

    Abstract: In January 2004, the plaintiffs lost their house to a fire and the fire department determined it resulted from either improperly secured smoking materials or a Black & Decker cordless electronic drill. The plaintiffs sued Black & Decker. The plaintiffs hired an insurance investigator to inspect the fire and he confiscated the drill. By the time the lawsuit began, the house had been raised and parts of the drill had gone missing. Black & Decker filed to have the suit dismissed on the basis of spoliation since they could properly investigate the fire scene or the drill. A chambers judge granted this motion but the plaintiffs appealed. The Court of Appeal overturned the chambers judge’s decision. Foremost, Black & Decker did not request the drill until 2006, over two years after the incident, nor did the company take advantage of being granted access to the fire scene as early as 2004. Furthermore, though Black & Decker said parts of the drill had gone missing, it was unclear which parts no longer existed and if their absence resulted from their intentional destruction. The Court of Appeal ruled that Black & Decker should be granted access to the plaintiff’s insurance investigator as well as any photographs he took of the fire scene and the drill. Following an examination of the available evidence, the court left issue of spoliation to be determined at trial.

    Keywords: destruction of evidence, preservation of evidence, spoliation

    Page last updated: July 10, 2010


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