Case information

Criminal law — Defences — Intoxication — Evidence — Disclosure — Whether trial judge erred in law in making finding of guilt by erroneously interpreting notion of consent. Whether Court of Appeal erred in law in upholding that decision — Whether trial judge erred in law in drawing baseless inferences in her analysis of motion to stay proceedings. Whether Court of Appeal erred in law in its interpretation and application of test of police negligence in preservation of evidence — In analysis of motion to stay proceedings, whether trial judge and Court of Appeal erred by strictly interpreting test of prejudice related to destruction of evidence.

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The facts unfolded in a bar where the victim worked as a server. The evidence rested essentially on video images from three of the sixteen surveillance cameras installed in the establishment. The thirteen others had been erased and were never disclosed.
Those videotapes show Mr. Guapacha, who arrived as a customer, playing video lottery, consuming beer, and also sharing shooters with the server. When the establishment closed, Mr. Guapacha was alone with the server, and he was observed making gestures of a sexual nature towards the victim, who was minimally conscious, until the next morning.
At trial, the judge dismissed the motion to stay the proceedings by reason of incomplete disclosure and the motion to stay the proceedings given the destruction of evidence. She found that Mr. Guapacha’s conduct did not give rise to a defence of involuntary intoxication and that the facts adduced in evidence did not allow for a sincere and honest belief in consent. She convicted Mr. Guapacha of sexual assault causing bodily harm. The Court of Appeal found that the trial judge committed errors in law in her analysis concerning the destroyed evidence but that she was correct in concluding that the extraordinary remedy of a stay of proceedings was not appropriate. Despite having allowed new evidence, the Court of Appeal found that Mr. Guapacha did not succeed in showing that the failure to raise the unconstitutionality of s. 33.1 Cr.C. jeopardized procedural fairness or the reliability of the conviction. It dismissed the appeal.