Remedy for Breach of Disclosure Obligation

From Criminal Law Notebook

General Principles

Remedies for lost evidence may include "limits on the Crown’s ability to call evidence, to adjournments, to stays of proceedings."[1]

  1. R v La, 1997 CanLII 309 (SCC), [1997] 2 SCR 680, per Sopinka J

Mistrial / Re-Trial

See also: Mistrials

At common law, a mistrial may be granted as a remedy where "there is a 'real danger' of prejudice to the accused or danger of a miscarriage of justice".[1] Late disclosure that causes an unfair trial, even after the trial, can result in a new trial.[2] However, this may not constitute a distinct Charter breach.[3]

Late disclosure does not necessarily result in an unfair trial.[4] A number of factors should be considered.[5]

A new trial can be ordered under s. 24(1) of the Charter due to a failure to disclose where the accused can show a violation of his right to full answer and defence. This requires that there be a "reasonable possibility that the non-disclosure affected the outcome at trial" or that "the overall trial fairness" is affected.[6]

The issue is not whether the evidence "would" have made a difference, it is only a matter of whether it "could" have made a difference and created reasonable doubt.[7] Further, there need only be a "reasonable possibility that the overall fairness...was impaired" such as if it could be used to impeach the witness.[8]

  1. R v Burke, 2002 SCC 55 (CanLII), [2002] 2 SCR 857, per Major J, at para 74
  2. R v C(MH), 1991 CanLII 94 (SCC), [1991] 1 SCR 763, per McLachlin J
    R v Bjelland, 2009 SCC 38 (CanLII), [2009] 2 SCR 651, per Rothstein J
  3. R v Douglas, 1991 CanLII 7328 (ON CA), , (1991) 5 OR 29, per curiam
  4. R v Rejzek, 2009 ABCA 393 (CanLII), 249 CCC (3d) 202, per curiam, at para 26
  5. See R v McQuaid, 1998 CanLII 805 (SCC), [1998] 1 SCR 244, per Cory J, at para 31
  6. R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244, per Cory J, at paras 23, 31 to 35
  7. R v Illes, 2008 SCC 57 (CanLII), [2008] 3 SCR 134{{perSCC|LeBel and Fish JJ}
  8. Illes, ibid.

Exclusion of Evidence

Where late disclosure warrants the exclusion of evidence follow the following principles from R v Bjelland[1]:

(a) Remedies under s. 24(1) of the Charter are flexible and contextual. The exclusion of evidence cannot be ruled out under s. 24(1). However, such a remedy will only be available where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.
(b) The Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show “actual prejudice” to his ability to make full to answer and defence.
(c) An accused must receive a fair trial, however, the trial must be fair from both the perspective of the accused and of society more broadly. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused.
(d) A trial judge should only exclude evidence for late disclosure in “exceptional” cases:
(e) where late disclosure renders the trial process unfair, and the unfairness cannot be remedied through an adjournment and disclosure order, or
(f) where exclusion in necessary to maintain the integrity of the justice system.

Non-disclosed evidence of a witness that has the effect of impairing the defence's case in a material way resulted in the exclusion of that evidence in circumstances where no other remedy is appropriate.[2]

  1. 2009 SCC 38 (CanLII), [2009] 2 SCR 651, per Rothstein J
  2. R v D'Onofrio, [2011] OJ No 1790(*no CanLII links)

Stay of Proceedings

See also: Stay of Proceedings

Within the rights under section 7 of the Canadian Charter of Rights and Freedoms include the "right to full answer and defence". This right requires the Crown to provide all relevant evidence. A failure to do so may violate this right, and a breach of that right may entitle the accused to a stay of proceedings under s. 24(1) of the Charter.

Where a section 7 Charter breach is alleged on the basis of violating the right to make full answer and defence due to failure to make disclosure, the issue will usually be left for the conclusion of trial. Not only to first determine whether there is insufficient evidence for guilt but also that the judge can properly assess whether the right to full answer and defence was violated in context of the case in its entirety.[1]

Delayed disclosure can be a factor but not a sole basis of seeking a stay.[2]

A failure to provide disclosure that has the effect of depriving counsel of ability to assess case and making informed decisions on the preparation of case.[3]

  1. R v FCB, 2000 NSCA 35 (CanLII), , , per Roscoe JA
      R v Banford, 2010 SKPC 110 (CanLII), , , per Toth J, at para 10 (overturned at 2011 SKQB 418 (CanLII), per McLellan J on other grounds).
      R v Salisbury, 2011 SKQB 153 (CanLII), [2011] S.J. No 259 (Sask.Q.B.), per Gerein J
    R v Burwell, 2011 SKPC 188 (CanLII), per Labach J
  2. R v Dias, 2010 ABCA 382 (CanLII), 265 CCC (3d) 34, per curiam
  3. R v Green, 2014 BCPC 84 (CanLII), per Woods - failure to disclose important evidence that would have affected defence strategy. Stay of proceedings.


See also: Costs

Where failure to disclose is flagrant and unjustified, the court may order costs.[1]

  1. R v 974649 Ontario Inc, 2001 SCC 81 (CanLII), [2001] 3 SCR 575, per McLachlin CJ

Civil Liability

See also: Role of the Crown

The Crown may be civilly liable for damages where there was a failure to disclose and it can be proven that the Crown had "intentionally withheld" the disclosure. Malice is not required. However, the standard will be more than gross negligence.[1]

The claimant must establish causation by showing that a legally recognizable harm was caused by the failure to disclose.[2]

The standard of "intentionally withholding" disclosure should not be interpreted to affect the Crown's decision-making process.[3]

  1. Henry v British Columbia (Attorney General), 2015 SCC 24 (CanLII), [2015] 2 SCR 214, per Moldaver J
  2. Henry, ibid., at paras 95 to 98
  3. Henry, ibid., at paras 71 to 73