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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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