R. v. Carosella
112 C.C.C. (3d) 289
charged with having committed acts of gross indecency ...complainant went to a sexual assault crisis centre ...was interviewed for an hour and a half to two hours by a social worker who took notes of whole story. ...defence counsel sought an order for production requiring the crisis centre to deliver a copy of its file concerning the complainant to the trial judge determine what material, if any, would be released to the defence...All parties including the centre, the complainant and the Crown consented to the order being granted. However, the file produced did not contain the notes of the interview with the complainant�.voir dire..revealed that the notes from the file of the complainant, along with those in many other files, had been shredded by the centre's executive director, or at her direction, pursuant to a policy of the centre to combat applications for production of records by shredding files with police involvement before being served in relation to criminal proceedings. Before destroying the notes, the executive director did not read them, and made no inquiries of the complainant or the social worker involved as to whether the complainant requested confidentiality or opposed disclosure. Nor did she inquire as to what stage the court proceedings were at in the case. The social worker herself had no recollection of the contents of the approximately ten pages of notes that were destroyed. The trial judge concluded that the accused had been seriously prejudiced as a result of the deprivation of the opportunity to cross-examine the complainant as to her previous statements relating to the allegations she made. The trial judge ordered a stay of proceedings. However, the Ontario Court of Appeal set aside the stay and ordered that the matter proceed to trial.
Per Sopinka J., Lamer C.J.C., Cory, Iacobucci and Major JJ. concurring: Headnote: entitlement of an accused to production either from the Crown or third parties is a constitutional right. Breach of this right entitles the accused to a remedy under s. 24(1) of the Charter. To require the accused to show that the conduct of his defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require the accused to show how the defence would be affected by the absence of material which the accused has not seen. The requirement to show additional prejudice or actual prejudice relates to the remedy to be fashioned pursuant to s. 24(1) of the Charter. If the material which was destroyed met the threshold test for disclosure or production, the accused's Charter rights were breached without the requirement of showing additional prejudice. ...even if the somewhat higher standard relating to production from third parties applied, it was met in this case. Once the material satisfied the relevance test, the balancing required in the second stage of the test would inevitably have resulted in an order to produce; confidentiality had been waived and the complainant and the Crown consented to production. The trial judge was certainly entitled to arrive at the conclusion that these notes were relevant and material. � The notes related to the complainant's initial disclosure of the alleged incidents. ... first written record of the allegations. Had the notes contained inconsistencies upon which the complainant could be cross-examined, the possibility existed that the notes would have affected the outcome of the case in a manner favourable to the accused. The accused could have made use of the information in the notes even though it was difficult to specify the precise manner in which the information could have been used without knowing the contents of the notes. In addition, the notes could have assisted the defence in the preparation of cross-examination questions. Per L'Heureux-Dub� J., La Forest, Gonthier and McLachlin JJ. concurring: While the production of every relevant piece of evidence might be an ideal goal from the accused's point of view, it is inaccurate to elevate this objective to a right, the non-performance of which leads instantaneously to an unfair trial. Per Sopinka J. Reasons: The Court of Appeal disagreed with the finding of the trial judge that the appellant's constitutional rights were breached because, "The issue is not whether the Centre's file should have been ordered to have been produced, but rather whether the Centre's inability to produce all of its original file contents resulted in the likelihood of prejudice to the accused that would compromise the defendant's Charter right to make full answer and defence" (p. 215). � 26 With respect, this is a misapplication of the burden which rested on the appellant and confuses the obligation to establish a breach of the right with the burden resting on the appellant in seeking a stay. The entitlement of an accused person to production either from the Crown or third parties is a constitutional right. See R. v. Stinchcombe,  3 S.C.R. 326, 68 C.C.C. (3d) 1 [page302] (S.C.C.), and R. v. O'Connor,  4 S.C.R. 411, 103 C.C.C. (3d) 1, 130 D.L.R. (4th) 235 (S.C.C.). Breach of this right entitles the accused person to a remedy under s. 24(1) of the Charter. Remedies range from one or several adjournments to a stay of proceedings. To require the accused to show that the conduct of his or her defence was prejudiced would foredoom any application for even the most modest remedy where the material has not been produced. It would require the accused to show how the defence would be affected by the absence of material which the accused has not seen�.The extent to which the Charter violation caused prejudice to the accused falls to be considered only at the remedy stage of a Charter analysis. �Similarly,