R v F.C.B.

R. v. B. (F.C.)

2000 NSCA 35
Nova Scotia Court of Appeal — Roscoe, Bateman and Cromwell JJ.A. | February 23, 2000

Background

In 1984, sixteen-year-old S.A.B. told her mother that her father, F.C.B., had been sexually abusing her since she was thirteen. Child welfare authorities got involved, and S.A.B. gave a statement to RCMP Corporal MacPhee on July 9, 1984. But S.A.B. said she didn't want to testify against her father in court. The prosecutor sent S.A.B.'s statement to the Attorney General's office, noting the "main difficulty" would be getting the daughter to testify. The decision came back: don't proceed. The family was referred for counselling.

Fast-forward to 1995. S.A.B. learned her sister had also been allegedly abused by their father. She contacted police again and gave another statement. This time, charges were laid in 1996: gross indecency, incest, and indecent assault. But there was a problem — the RCMP had destroyed the original 1984 file in 1989, following their five-year retention policy. The handwritten statement and the officer's notes were gone.

Issues

1. Did the destruction of the original 1984 police file constitute "unacceptable negligence" by police?
2. Was the loss of evidence so prejudicial that it warranted a stay of proceedings?
3. Did this meet the "clearest of cases" standard required for a stay?

The Stay Decision and the Appeal

The trial judge granted a stay of proceedings, finding that the fifteen-year delay and destruction of evidence made it a "proper case" for staying the charges. But the Court of Appeal disagreed — strongly. Justice Roscoe applied the Supreme Court's test from R. v. La, which requires courts to examine whether evidence was lost through "unacceptable negligence" and whether the prejudice is so severe it cannot be remedied.

The Court found no unacceptable negligence. In the 1980s, destroying sexual assault files after five years was standard practice across Canada — the duty to preserve evidence for disclosure wasn't even established until R. v. Stinchcombe in 1991. The RCMP policy was reasonable for its time. More importantly, a typed copy of S.A.B.'s original statement still existed in the Attorney General's file, and there were detailed reports from the family's counselling sessions.

The Court emphasized that stays should only be granted in the "clearest of cases" where prejudice cannot be remedied. Here, the trial judge jumped the gun — he should have heard all the evidence first to assess whether the accused was actually prejudiced by the missing file.

Key Takeaway

Missing evidence doesn't automatically mean a stay of proceedings — courts must find "unacceptable negligence" and irreparable prejudice.

This case shows that police following standard policies of their era won't usually constitute negligence, and that courts should be very reluctant to grant stays before hearing all the evidence to assess actual prejudice.