An Ontario judge has thrown out laser scan evidence due to the
Ontario Ministry of Labour's late disclosure and late notice to
defence counsel that the MOL intended to present that evidence
A construction company was charged with three counts under the
Ontario Occupational Health and Safety Act after a fatal
accident involving the collapse of a drill rig that it
operated. The laser scan evidence purported to show the slope
of ground where the rig collapsed.
The trial started in July 2014 and a number of witnesses were
called by the prosecution. Before the trial resumed a few
months later, the prosecutor told defence counsel that he intended
to call a police sergeant as a witness to present and testify about
the laser scan. The defence demanded the "raw data" in
relation to the laser scan but was told that the sergeant had
overwritten it when the laser scanner consolidated the original raw
The defence brought an application asking that the charges be
stayed (effectively dismissed). The court held that the late
disclosure and late notice to the defence meant that five days of
evidence had been called at trial before the defence knew "the
full case that it had to meet". This was not fair to the
company. Although the prosecution had not acted in bad faith,
its decision to change its mind and call the laser scan evidence
infringed the company's right to make a full defence.
The court decided that the proper remedy was to prohibit the MOL
from presenting the laser scan evidence. Given that the
MOL's conduct had not been egregious, and the reliability
of the laser scan evidence was not great in any event, it was not
appropriate to stay the charges.
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