R v Carosella

R. v. Carosella

[1997] 1 S.C.R. 80
Supreme Court of Canada — Sopinka J. (majority), L'Heureux-Dubé J. (dissenting) | February 6, 1997

Background

Nick Carosella was charged with gross indecency for allegedly sexually abusing a complainant in 1964 when she was a Grade 7 and 8 student and he was her teacher. In March 1992, before laying charges, the complainant visited the Sexual Assault Crisis Centre in Windsor where social worker Peggy Romanello interviewed her for about an hour and forty-five minutes, taking detailed notes of what the complainant called the "whole story." The complainant was told her statements could be subpoenaed for court and said "that was quite all right."

When Carosella's lawyer applied for production of the Centre's file before trial, they discovered the interview notes had been deliberately destroyed in April 1994. The Centre had adopted a systematic policy of shredding files with "police involvement" to prevent the notes from being produced in court. The Centre's director testified this was done specifically to "prevent anything from being ordered produced" and to avoid "further victimization" of clients.

Issues

1. Did the destruction of the interview notes violate the accused's Charter right to make full answer and defence?
2. If so, was a stay of proceedings the appropriate remedy?

The Right to Full Answer and Defence

The majority found that Carosella's Charter rights were breached. Justice Sopinka ruled that if material meets the threshold for disclosure (from R. v. Stinchcombe) or production (from R. v. O'Connor), then its destruction violates section 7 without requiring any additional showing of prejudice. The breach of the principle of fundamental justice is "in itself prejudicial."

The Court found the destroyed notes were clearly relevant — they represented the complainant's first detailed account of the alleged incidents and were the only written record not created as part of a police investigation. Since the complainant had consented to production and waived confidentiality, both the Stinchcombe and higher O'Connor standards were met.

The dissenting justices disagreed, arguing the accused must prove actual prejudice — that the missing evidence would "more likely than not" have assisted his defence. They found this was mere speculation since no one could say what the notes actually contained.

The Stay of Proceedings

The majority upheld the trial judge's stay of proceedings. With credibility being the central issue and no alternative remedy available to cure the prejudice, a stay was justified. The Court noted two factors that can justify a stay: (1) no alternative remedy can cure the prejudice to full answer and defence, or (2) continuing the prosecution would cause irreparable prejudice to the integrity of the judicial system.

Both factors were present here. The systematic destruction of evidence by a publicly-funded agency specifically to "defeat the processes of the court" undermined confidence in the justice system.

Key Takeaway

Third parties cannot deliberately destroy relevant evidence to prevent its use in court, and doing so can result in serious Charter violations that may lead to a stay of proceedings.

This case establishes that the Crown's disclosure obligations extend beyond just producing what they have — if relevant material is destroyed (even by third parties), it can breach an accused's fundamental Charter rights and potentially end the prosecution entirely.