Unresolved concerns about secondary evidence affected its probative value

Ontario criminal | Appeal

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Unresolved concerns about secondary evidence affected its probative value

Appeal by accused from judgment that convicted him of stealing under $5,000 from his employer. Accused worked for fast food restaurant and proceeds of sale for November 20, 2009, in amount of $2,653, were missing. Accused was manager on November 21, 2009 and one of his tasks was to ensure that previous day’s revenues were delivered to bank night deposit chute. He was last person from restaurant to have possession of deposit package. Accused claimed he took package to chute, dropped it in and he returned to restaurant for day. Video recording of chute was destroyed but Crown advanced secondary best evidence from three witnesses who claimed to have viewed video recording and they did not see accused at chute. One of witnesses, who worked for landlord of premises where bank was located and who had control of video recordings, confirmed that video was not altered or changed at times it was viewed. Trial judge relied heavily on testimony from these three witnesses in deciding to convict. Appeal allowed. Judge did not err in admitting testimony regarding contents of video. There were, however, unresolved concerns about secondary evidence that affected its probative value. Destruction of recording inherently prejudiced defence. Recording brought possible vindication. Witnesses were not trained investigators and there were serious deficiencies regarding their testimony. Judge did not advert to this issue and ruling on weighing of probative value and prejudicial effect in relation to secondary evidence would have to be made on retrial. Judge also misapprehended evidence and this resulted in miscarriage of justice. Cumulative effect of errors raised issues of trial fairness and, since accused did not receive fair trial, new trial was required.
R. v. Lapensee (Apr. 8, 2014, Ont. S.C.J., Rick Leroy J., File No. 13-39) 112 W.C.B. (2d) 639.

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