Mr. Richard was arrested (in a manner that the Court concluded was excessive and a breach of his s. 7 Charter right) and taken for breath samples.  The breath sampling was recorded but the DVD recording played at court ended about 14 minutes prior to Mr. Richard being taken out of the breath room and did not include a recording of the second breath sample. Whether it existed and was not preserved or was not recorded in the first instance was unknown.  In the absence of any explanation and having unreliable evidence in regard to the use and operation of the recording equipment, the Court was satisfied there was at least unacceptable negligence associated with the loss or failure to preserve evidence which it believed to be relevant. The Court found a breach of Mr. Richard's s. 7 Charter right and, combined with the excessive force finding, ordered a stay of his impaired and exceed .08 charges. R. v. Richard, 2012 ONCJ 694