How Lost Disclosure can Win the Case
More and more police cars are being equipped with video cameras. Police procedure surrounding the preservation of the resultant footage differs depending on the department, but a majority of the time, constables need to actively burn or save the footage periodically. A Constable from the Estevan (Saskatchewan) Police Services testified about these procedures in R v Sanche, 2015 SKQB 321, stating that if the DVD from an in-car camera is not switched out in time, the camera begins recording over old materials. In Sanche, the footage from the in-car camera was lost, and the accused brought an Applicant under the Canadian Charter of Rights and Freedoms to have the impaired driving charges against him stayed.
The Saskatchewan Court of Appeal concluded that contrary to the Trial Judge’s finding, the loss of the footage was prejudicial to the accused, and that the only remedy to that prejudice was a stay of proceedings. Sanche is one in a long line of cases that have concluded that the loss of video footage is a significant breach of an accused’s right to disclosure (see R v Sharma, 2014 ABPC 131, for an ostensibly exhaustive list). A notable number of these cases involve impaired driving charges, but in most, the appropriate remedy for the loss of footage was the exclusion of evidence (for example excluding an officer’s observations about stumbling that would have otherwise been captured on the video). In fact, a stay of proceedings is granted only in the clearest of cases and is the exception, not the rule. What happens though, when all the germane evidence noted by an officer is also captured by a camera?
In the advent of increasing numbers of in-car video cameras and on-person audio recordings, even in a case where a stay is not appropriate, the exclusion of evidence otherwise captured by lost footage could easily be the only difference between a conviction and an acquittal.