R. v. F.C.B.,

• Jurisdiction: Nova Scotia
• Judge: Roscoe, Bateman and Cromwell, JJ.A.
• Neutral Citation: 2000 NSCA 35
• Citation: (2000), 182 N.S.R.(2d) 215 (CA),2000 NSCA 35,142 CCC (3d) 540,[2000] CarswellNS 50,[2000] NSJ No 53 (QL),182 NSR (2d) 215,563 APR 215,73 CRR (2d) 221,563 A.P.R. 215,[2000] NS.J. No 53 (QL),(2000), 182 NSR(2d) 215 (CA),182 N.S.R.(2d) 215,182 NSR(2d) 215
• Date: 23 February 2000
• Court: Court of Appeal of Nova Scotia (Canada)

R. v. F.C.B. (2000), 182 N.S.R.(2d) 215 (CA);

 563 A.P.R. 215

MLB headnote and full text

Temp. Cite: [2000] N.S.R.(2d) TBEd. MR.033

Her Majesty The Queen (appellant) v. F.C.B. (respondent)

(C.A.C. No. 155899; 2000 NSCA 35)

Indexed As: R. v. F.C.B.

Nova Scotia Court of Appeal

Roscoe, Bateman and Cromwell, JJ.A.

February 23, 2000.

Summary:

In 1984, the 16 year old complainant gave a statement to police complaining of sexual abuse by her father. No charges were laid because the complainant was unwilling to testify. In 1995, after learning that her younger sister was also molested, the com­plainant contacted police and gave another statement alleging sexual abuse. The father was charged with sexual offences. Neither the original nor a copy of the handwritten 1984 statement, or the police officer's notes, were available. However, what purported to be a typed copy of the statement was dis­closed, as well as the file of the child wel­fare agency. The accused sought a stay of proceedings. The trial judge granted a stay on the basis that loss of the evidence resulted from unacceptable negligence and was so prejudicial to the accused's right to make full answer and defence that his right to a fair trial was denied (Charter, ss. 7 and 11(d)). The Crown appealed.

The Nova Scotia Court of Appeal allowed the appeal, set aside the stay and remitted the matter for trial. There was no unaccept­able negligence in the destruction of the file. At this point, there was no evidence of prejudice to the accused's right to make full answer and defence, and the accused was not entitled to a stay of proceedings.

Civil Rights - Topic 3133

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right of accused to make full answer and defence - In 1984, a 16 year old complainant gave a state­ment to police complaining of sexual abuse by her father - No charges were laid because the complainant would not testify - In 1995, the complainant contacted police and gave another statement alleging sexual abuse - The father was charged with sexual offences - Neither the original nor a copy of the handwritten 1984 state­ment were available - However, what purported to be a typed copy of the state­ment was disclosed, as well as the file of the child welfare agency - The trial judge granted a stay of proceedings on the basis that the loss of the statement resulted from unacceptable negligence and was so preju­dicial to the accused's right to make full answer and defence that his right to a fair trial was denied (Charter, ss. 7 and 11(d)) -The Nova Scotia Court of Appeal set aside the stay - The original file of the complaint (containing the statement) was destroyed after five years pursuant to standard pre-Stinchcombe police policy respecting destruction of closed files - There was no unacceptable negligence - A transcribed copy of the statement (purportedly accu­rate) existed - At this point, there was no evidence of prejudice to the accused's right to make full answer and defence.

Civil Rights - Topic 3157

Trials - Due process, fundamental justice and fair hearings - Criminal and quasi-criminal proceedings - Right to just and fair trial - [See Civil Rights - Topic 3133 ].

Civil Rights - Topic 8374

Canadian Charter of Rights and Freedoms - Denial of rights - Remedies - Stay of proceedings - [See Civil Rights - Topic 3133 ].

Criminal Law - Topic 4505

Procedure - Trial - Special duties of Crown - Duty to disclose evidence prior to trial - [See Civil Rights - Topic 3133 ].

Cases Noticed:

R. v. Hiscock (D.W.) (1999), 179 N.S.R.(2d) 350; 553 A.P.R. 350 (C.A.), refd to. [para. 8].

R. v. D.M.M., [1998] N.S.J. No. 148 (Prov. Ct.), dist. [para. 9].

R. v. O'Connor (H.P.) (1995), 191 N.R. 1; 68 B.C.A.C. 1; 112 W.A.C. 1; 103 C.C.C.(3d) 1 (S.C.C.), refd to. [para. 9].

R. v. Stinchcombe (1995), 178 N.R. 157; 162 A.R. 269; 83 W.A.C. 269; 38 C.R.(4th) 42 (S.C.C.), refd to. [para. 9].

R. v. Carosella (N.) (1997), 207 N.R. 321; 98 O.A.C. 81; 4 C.R.(5th) 139 (S.C.C.), refd to. [para. 9].

R. v. La (H.K.) et al. (1997), 213 N.R. 1; 200 A.R. 81; 146 W.A.C. 81; 116 C.C.C.(3d) 97 (S.C.C.), refd to. [para. 9].

R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161, refd to. [para. 10].

R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81, refd to. [para. 10].

R. v. Chapman (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272, refd to. [para. 10].

R. v. Pizzardi, [1991] O.J. No. 2536 (Gen. Div.), refd to. [para. 17].

R. v. H.A., [1998] O.A.C. Uned. 467 (C.A.), refd to. [para. 17].

R. v. Dowd (J.T.) (1997), 193 N.B.R.(2d) 247; 493 A.P.R. 247; 120 C.C.C.(3d) 360 (C.A.), dist. [para. 17].

R. v. J.-P.S. (1999), 216 N.B.R.(2d) 130; 552 A.P.R. 130 (C.A.), refd to. [para. 32].

Counsel:

William D. Delaney, for the appellant;

Philip J. Star, for the respondent.

This appeal was heard on January 27, 2000, before Roscoe, Bateman and Cromwell, JJ.A., of the Nova Scotia Court of Appeal.

On February 23, 2000, Roscoe, J.A., delivered the following judgment for the Court of Appeal.