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Evidence - Preservation Demands. R. v. Shaw
In R. v. Shaw (Ont CA, 2023) the Court of Appeal considered jury instructions regarding phone billing record evidence lost by police, despite there being a 'preservation order'. The quotes address 'Bero instructions':[261] The appellants brought an application seeking a stay of proceedings as a remedy for the lost evidence. However, by the end of submissions on the application, they acknowledged that a stay could not be justified, and sought an instruction to the jury in relation to lost evidence in accordance with this court’s decision in R. v. Bero (2000), 2000 CanLII 16956 (ON CA), 151 C.C.C. (3d) 545.
[262] The trial judge concluded that the appellants’ s. 7 Charter rights were infringed by the loss of the Freedom Mobile billing records. He found that Officer Shankaran’s belief, in the absence of any inquiry, that Freedom was a Rogers subsidiary was not reasonable. The trial judge also found that it was unreasonable of Officer Shankaran to assume, in the absence of any response from Freedom to the preservation demand, that Freedom would preserve the records relating to the 226 phone indefinitely. He further found that there was “no justification” for the police delay of nine months in seeking a production order for the Freedom records in relation to the 226 phone. The trial judge found that, in the absence of any evidence of an explanation for why Officer Shankaran believed what he did or behaved as he did, the officer was “unacceptably negligent in relation to his duty to preserve the 226 records.”
[263] The trial judge concluded that it was not possible to determine whether the lost records in relation to the 226 phone would have helped the appellants, the Crown, or been neutral. He concluded that an appropriate remedy for the Charter breach was an instruction in accordance with this court’s decision in Bero.
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