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Hewitt, Terry-Dawn. A Primer on the Law of Spoliation of Evidence in Canada. Fire and Arson Investigator. Vol. 48, No. 1 (September 1997). p 17-21.

Abstract: This article discusses the developing spoliation laws in Canada and offers guidelines for evidence documentation. The article suggests that while the law remains uncertain, it is still possible to minimize the risks associated with evidence preservation, thereby reducing spoliation accountability.

Spoliation is the act of plundering or injuring beyond reclaim. Spoliation of evidence refers to the failure to preserve property for another interested partyís use as evidence in litigation. Laws regarding spoliation in Canada are still being developed and for the time being, American laws are influencing Canadian litigation. It is expected, however, that spoliation of evidence will become a larger issue in Canada. Therefore, an understanding of the issue and the developing law is critical.

Under American law, spoliation cases can result in consequences including; dismissal of evidence and corresponding expert testimony, sanctions against the party responsible for destroying or failing to preserve the evidence, and dismissal of the entire case. Clearly, spoliation of evidence is of critical concern in the United States, and is being considered more and more frequently in Canada. In situations where American and Canadian laws are based on similar principals, as is the case in issues of negligence, it is common for Canadian courts to look to the United States for guidance. This is likely to occur with the developing spoliation laws in Canada.

From the dozen or so cases in Canada, a number of principles have been drawn regarding individuals who can be held responsible for spoliation and in what circumstances. Other principals examine negligence versus willful destruction and bad faith. And the sanctions available to penalize persons guilty of spoliation have been considered.

The article concludes with useful pointers for those representing potential plaintiffs and defendants in civil fire and explosion litigation and includes references to preservation standards and the relationships between the various parties involved in an investigation.

For more information, contact:
International Association of Arson Investigators (IAAI)
300 Broadway Suite 100
St. Louis, MO 63102-2808
Phone: 314-621-1966

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