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| Michael R. Shapray |
The Nygård stay
Last week, a Winnipeg judge stayed sex assault and unlawful confinement charges against Nygård after ruling that critical evidence had been destroyed. The missing items included two police interview reports from 1993. Justice Mary Kate Harvie found that their disappearance substantially prejudiced Nygård’s ability to receive a fair trial.
The Crown argued that the documents were of limited relevance and that their absence did not meet the standard of unacceptable negligence. The judge disagreed, noting that in an era when electronic storage is readily available, the destruction of important materials is inexcusable. She emphasized
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This ruling is notable not only because of the profile of the accused, but because it illustrates the extreme remedy available when the prejudice caused by lost evidence cannot be cured.
Why lost evidence natters
From the perspective of the defence, the absence of evidence may:
- Remove information that could support the defence theory or undermine Crown witnesses
- Impair the ability to test testimony through effective cross-examination
- Create an imbalance where the Crown can rely on surviving evidence but the defence is unable to respond fully
Weakens public confidence in the fairness of the process
The Charter of Rights and Freedoms guarantees an accused the right to a fair trial under s. 11(d). Where disclosure failures or destroyed evidence compromise that right, courts must consider remedies that can range from excluding evidence, drawing negative inferences or, in the most serious cases, entering a stay of proceedings.
The critical question is whether the loss has caused serious prejudice to the accused, and whether any lesser remedy can address it. Where the answer is no, a stay becomes the only option.
What is a stay of proceedings?
A stay of proceedings is a judicial order that halts the prosecution. Once entered, it prevents the Crown from moving forward with the charges. While the charges technically remain on file, they cannot proceed unless the stay is lifted, which happens only in rare circumstances.
Canadian courts view a stay as an extraordinary remedy that should be used sparingly. Judges weigh the public interest in prosecuting crime against the accused’s right to a fair process. The Supreme Court of Canada has made clear that a stay should only be granted in the clearest of cases where no other remedy would adequately protect the integrity of the justice system.
In the Nygård case, Justice Harvie determined that the destruction of key records placed it among those clearest cases.
Implications for criminal defence in Canada
Although this ruling comes from Manitoba, its lessons apply across the country. Defence lawyers should be proactive in protecting clients when disclosure or preservation concerns arise.
First, counsel should press early and firmly for preservation of records. On receipt of disclosure, lawyers should file motions or seek assurances from the Crown to ensure that all related material is retained. Second, it is vital to scrutinize police and Crown retention policies. Any practice of routine deletion or purging must be challenged, particularly when cases involve historic allegations.
Counsel should also keep detailed records of disclosure requests and responses. An audit trail may later prove essential in showing how the loss of evidence unfolded. If critical material is missing, defence lawyers must be prepared to argue for remedies up to and including a stay of proceedings.
Crown counsel will often argue that missing evidence is of little importance or that trial safeguards such as adverse jury instructions are sufficient. Defence lawyers must show why those measures cannot adequately cure the prejudice. Courts are especially attentive where systemic concerns arise, and arguments that lax recordkeeping undermines the legitimacy of the system can be persuasive.
Conclusion
The Nygård ruling serves as a stark reminder of the seriousness of evidence preservation in criminal prosecutions. Regardless of the profile of the accused, a case cannot proceed where the right to a fair trial has been fatally compromised.
For criminal defence lawyers in Canada, the decision underscores the importance of vigilance and persistence. The loss of evidence can never be brushed aside as an administrative lapse. It goes to the core of constitutional fairness. When the prejudice is severe, a stay of proceedings is not a windfall for the accused but a necessary safeguard for the justice system itself.
Michael R. Shapray is a leading criminal defence lawyer and partner at Stern Shapray Criminal Law, with experience in high-profile and complex cases.
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