Court of Appeal

CASE NO.                                      VOL. NO.                                            PAGE

HER MAJESTY THE QUEEN                        - and -              D.W.L., (a young person within the

Meaning of the Young Offenders Act

(Can.))            

(Appellant)                                                                                                                       (Respondent)

CAC 167424                                               Halifax, N.S.                                                     Flinn, J.A.

[Cite as: R. v. D.W.L., 2001 NSCA 111]

APPEAL HEARD:                        June 4, 2001

JUDGMENT DELIVERED:          July 10, 2001

SUBJECT:       Criminal Law - Application for production of records s. 278.3 - Whether record is likely relevant - Order staying charges because record not available

SUMMARY:    Following a multi-charge indictment, including charges of sexual assault against the complainant, the respondent made application, before trial, for production of the complainant’s diaries under s. 278 of the Code.  The trial judge ordered that the diaries be produced for review by him.  On determining that the diaries had been destroyed by the complainant, the trial judge stayed the charges against the respondent.  The Crown appeals.

RESULT:         Appeal allowed - new trial ordered.

The respondent did not establish that the complainant’s diaries are “likely relevant” to an issue at trial or to the competence of a witness to testify; nor did the respondent demonstrate that the diaries are necessary in order for him to make full answer and defence; nor did he demonstrate what, if any, probative value the diaries may have.  The errors of law of the trial judge were his failure to properly consider these matters which he is required to do before making an order for production of the diaries under s. 278.5 of the Code.

The trial judge’s order requiring production of the diaries is set aside as is the trial judge’s order staying proceedings, which order came about because the diaries which were ordered to be produced had been destroyed.