R v Bero

R. v. Bero

[2000] O.J. No. 4199
Ontario Court of Appeal — Osborne A.C.J.O., Doherty and Charron JJ.A. | November 3, 2000

Background

Casey Bero was convicted of impaired driving causing bodily harm and driving over 80 after a crash on October 25, 1996. He'd met David Mills at a bar, and they left together in Mills' vehicle. The car failed to negotiate an expressway ramp, rolled over, and both men were seriously injured. Mills told police at the scene that Bero was driving — but that was literally the only evidence of who was behind the wheel.

The identity of the driver was the sole issue at trial. The Crown's entire case rested on Mills' word. Bero didn't testify, and interestingly, the jury acquitted him on an assault charge involving Mills (suggesting they had credibility concerns). But here's the kicker: police had destroyed the vehicle before the defence could conduct forensic testing that might have revealed blood patterns, fingerprints, or other evidence showing who was actually driving.

Issues

1. Did the Crown's failure to preserve the vehicle for forensic examination breach Bero's Charter rights and warrant a stay of proceedings?
2. Should the trial judge have allowed the defence to question witnesses about what forensic testing might have revealed?
3. Were Mills' statements at the accident scene properly admitted as evidence?

The Destruction of Evidence

This case established crucial principles about the Crown's duty to preserve evidence. The Court of Appeal found that police had breached Bero's section 7 Charter rights by failing to preserve potentially relevant evidence. The vehicle was towed to a police garage, then moved to a contracted company that only held it for 30 days. It eventually ended up at a Quebec wrecker and was destroyed in March 1997 — all without anyone considering its forensic value.

Justice Doherty was scathing about this failure: the destruction revealed "an ignorance of, or at least an indifference to, the duty on the Crown and the police to preserve the fruits of their investigation." The court emphasized that forensic testing of vehicles for driver identification wasn't unknown to police — they just didn't think about it. Given that Mills had testified about striking his face and biting his tongue, blood evidence could have been crucial. Similarly, damage patterns inside the vehicle might have supported the defence expert's opinion that Mills was actually the driver.

However, the Court stopped short of ordering a stay of proceedings. While the Crown's conduct amounted to an abuse of process, it wasn't so egregious as to require the ultimate remedy of stopping the prosecution entirely.

The Silenced Cross-Examination

Perhaps more damaging to Bero's case was the trial judge's decision to shut down defence cross-examination about the missing evidence. When defence counsel tried to question the accident reconstruction expert about what forensic testing might have revealed, the trial judge cut him off, stating it was "inappropriate" and amounted to mere "conjecture."

The Court of Appeal firmly rejected this approach. Defence counsel should have been allowed to explore the significance of the missing evidence — what tests could have been done, what results might have been expected, and how those results could have affected the case. This wasn't about putting inadmissible facts before the jury; it was about demonstrating gaps in the Crown's case that could support reasonable doubt.

Key Takeaway

The Crown has a duty to preserve all potentially relevant evidence, and the defence has the right to cross-examine witnesses about investigative failures.

If police destroy or lose evidence that could help your case, you're entitled to question witnesses about what that missing evidence might have shown and how its absence affects the reliability of the Crown's case. Don't let a trial judge silence this line of questioning — it's a fundamental part of your right to make full answer and defence.