The accused argued that the destruction of the police station video of the accused impunged his right to make full answer and defence. Although the Crown did not lead any evidence of what the video may or may not have shown, nor did the defence indicate how its destruction prejudiced its case, the trial judge entered a stay.
On appeal the court found the trial judge's decision to be premature and speculative. In a case such as this there needed to be a factual foundation to prove that the accused's ability to make full answer and defence was actually harmed. The judge should have proceeded with the trial and made the decision after hearing the evidence. R. v. Gilchrist, 2011 S.J. No. 751