R v La

R. v. La

[1997] 2 S.C.R. 680
Supreme Court of Canada — Sopinka J. (majority), L'Heureux-Dubé J. (concurring) | June 26, 1997

Background

Police found 13-year-old complainant M.F., a runaway, in a vehicle driven by a known pimp. Constable Hollinger took her to headquarters and made a 45-minute tape recording of their conversation — not for criminal investigation purposes, but to prepare for a secure treatment application. He only took notes of her basic information (birth date, address, phone number) because the conversation was recorded.

Later, when prostitution and sexual assault charges were laid against several men including appellant Vu, Const. Hollinger turned over his report and written statements to vice unit detectives — but forgot about the tape. By the time of the preliminary inquiry, he had completely forgotten about the recorded interview. Sometime between the interview and trial, he misplaced the tape entirely. The vice unit had conducted their own recorded interview with M.F., which was transcribed and disclosed.

Issues

1. Is the Crown relieved of its duty to disclose when it loses relevant evidence through inadvertence?
2. What test applies when the Crown fails to preserve evidence that should have been disclosed?

The Lost Evidence Framework

The Court established a clear framework for lost evidence cases. When prosecution has lost evidence that should have been disclosed, the Crown has a duty to explain what happened to it. If that explanation satisfies the trial judge that the evidence wasn't destroyed or lost through "unacceptable negligence," then the duty to disclose hasn't been breached.

The court must analyze the circumstances surrounding the loss. The main consideration is whether police took reasonable steps to preserve the evidence for disclosure. The relevance the evidence was perceived to have at the time matters — police can't be expected to preserve everything on the chance it might be relevant later. Even losing relevant evidence won't breach the disclosure duty if police conduct was reasonable. But as evidence becomes more relevant, higher care is expected.

Here, the Crown's explanation was satisfactory. The tape wasn't made for criminal investigation — Const. Hollinger was investigating a runaway, not a prostitution ring. He didn't consider it a detailed conversation, and he wasn't involved in the later criminal investigation. The officer was also dealing with a stressful shooting incident shortly after making the tape.

The Charter Analysis

Even where the Crown hasn't breached its disclosure duty, lost evidence might still violate s. 7 Charter rights if the loss is so prejudicial it impairs the right to make full answer and defence. But the accused must establish actual prejudice to their defence rights — not just theoretical harm.

The Court found no such prejudice here. The taped interview wasn't detailed, alternative sources of information were available (including Const. Hollinger's testimony that M.F. told "a few lies" during the interview), and M.F. had given four other statements to police plus testified at the preliminary inquiry. The potential value of the lost tape didn't meet the threshold for serious impairment of defence rights.

Key Takeaway

Lost evidence doesn't automatically mean a Charter violation — the Crown just needs to give a satisfactory explanation for the loss, and you need to prove actual prejudice to your defence.

If you're facing charges where the Crown has lost potentially relevant evidence, demand a full explanation of how and why it was lost, then focus on demonstrating specific ways the missing evidence would have helped your case — not just theoretical possibilities.