How have the courts treated the loss of or inadvertent destruction of documents by the state authorities under the Charter of Civil Procedure?

The loss of or inadvertent destruction of documents by the state authorities within the context of the Charter has had little consideration by the courts. In the United States the courts have declared that not only is there a duty on the state to disclose certain documents to the defence, there is also a duty to preserve them until the duty to disclose becomes operative. In United States v. Bryant, supra, a tape recording of conversations which were crucial to the government case were lost. No effort had been made to preserve them. Viva voce evidence was given by a government undercover agent as to what had been said. The court held that prior to the time when the duty to disclose becomes operative, there is a duty to preserve the documents. At p. 652, Skelly Wright J. said: Accordingly, we hold that sanctions for non-disclosure based on loss of evidence will be invoked in the future unless the Government can show that it has promulgated, enforced and attempted in good faith to follow rigorous and systematic procedures designed to preserve all discoverable evidence fathered in the course of a criminal investigation. The burden, of course, is on the Government to make this showing. Negligent failure to comply with the required procedures will provide no excuse. Although we leave it up to the various investigative agencies to draft rules suited to their own method of operation, all such rules will be subject to review of their adequacy to the assigned task. A more amorphous definition of “earnest efforts” would be difficult to administer and would inevitably deal less evenhandedly with individual defendants. A right so crucial as that of disclosure ought not to be built on such shifting sands. It ought, rather, to be protected by rules, systematically applied and systematically enforced. By requiring that the discretionary authority of investigative agents be controlled by regular procedures for preserving evidence, we intend to ensure that rights recognized at one stage of the criminal process will not be undercut at other, less visible stages.