Crown Duty to Disclose: Difference between revisions

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< Disclosure

General Principles

See also: Principles of Fundamental Justice

The Crown must disclose all materials and information that is in its possession or control that is not clearly irrelevant, regardless of if the evidence is to be called at trial or is inculpatory or exculpatory.^[1]

The right to disclosures premised upon (1) the right to know the case to meet and (2) the right to make full answer in defense of an offence charged.^[2]

Purpose
The right to disclosure is founded in the principle of fair play between parties^[3] as well as the right to make full answer and defence. ^[4]

When the Crown receives evidence it is not information that it holds in trust for the witness, rather it is "property of the public, to ensure that justice is done."^[5]

The right to disclosure is "among the most important and fundamental rights guaranteed to an accused in the criminal process".^[6]

The right is guaranteed by the right to full answer and defence under s. 7 of the Charter.^[7]

There is also a common law duty to provide "full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials".^[8]

The obligation also arises from "the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the 'property' of the Crown, but is rather 'the property of the public to be used to ensure that justice is done'"^[9]

This right is found codified under s. 650(3) and s. 802 of the Criminal Code which state:

s.650(3)
...
To make defence
(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12.

– CCC

Right to make full answer and defence
802. (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.
...
R.S., c. C-34, s. 737.

– CCC

The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must "take reasonable step to inquire about ...relevant information".^[10]

The duty to make disclosure creates a duty upon the crown to obtain the disclosure from the police and, likewise, the police have a corresponding duty to provide disclosure to the crown. ^[11]

These obligations are jointly held by both Crown and police.^[12]

The "Stinchcombe disclosure regime" only applies to "material relating to the accused’s case" that are "in the possession or control" of the Crown.^[13]

When confronted by a "pure fishing expedition", the Crown has no obligation to discover or disclose records.^[14]

Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to first-party disclosure.^[15]

The right does not distinguish between inadmissible and admissible evidence.^[16]

The Crown should advise a self-represented accused of the right to disclosure. The judge should not take a plea until satisfied that the accused has been notified.^[17]

Case-to-Meet Principle
The doctrine of the "case-to-meet" is a fundamental requirement of a fair trial. It is protected by the common law and the Constitution.^[18]

↑ R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) at 339 and 343 (Stinchcombe #1)
See also Stinchcombe #1 at para 20 "[w]hile the Crown must err on the side of inclusion, it need not produced what is clearly irrelevant") R v Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 SCR 754, per Sopinka J (7:0) at 755 (Stinchcombe #2)
R v Wickstead, 1997 CanLII 370, [1997] 1 SCR 307, per Sopinka J (9:0)
R v McNeil, 2009 SCC 3 (CanLII), per Charron J (8:0) at para 17 (the crown need not produce records that have no "reasonable possibility" of relevance)
R v Girimonte, 1997 CanLII 1866 (ONCA), per Doherty JA (3:0) at pp. 41 to 42 ("The Crown must disclose to the defence all information whether inculpatory or exculpatory under its control, unless the information is clearly irrelevant or subject to some privilege")
↑ R v Bottineau, 2005 CanLII 63780 (ONSC), per Watt J at para 31
R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SR 668, per McLachlin and Iacobucci JJ (7:1) at p. 682 to 683 ("the right of an accused ot make full answer and defence is a pillar of criminal justice on which we rely heavily to prevent the conviction of the innocent... The Crown's constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused's ability to raise a reasonable doubt concerning his innocence"
↑ R v Lemay 1951 CanLII 27 (SCC), [1952] 1 SCR 232, per Locke J (8:1)
R v Boucher, 1954 CanLII 3 (SCC), [1955] SCR 16, per Kerwin J (7:2)
↑ R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J (5:4), stated disclosure by the crown is "one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter."
Girimonte, supra
↑ R v Stinchcombe 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) at para 12
↑ R v Floria, 2008 CanLII 57160 (ON SC), per Croll J, at para 19
↑ R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at p. 742
R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J, at p. 106 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. ")
↑ R v O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), per L'Heureux‑Dubé J (6:3)
↑ R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA (3:0), at para 33
R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, [1991] S.C.J. No. 83, per Sopinka J (7:0) at p. 333 S.C.R
↑ Darwish, supra at para 31
R v T(LA), 1993 CanLII 3382 (ON CA), per Lacourcière JA (3:0) ("The Crown has a duty to obtain from the police -- and the police have a corresponding duty to provide to the Crown -- all relevant information and material concerning the case.")
R v Vokey, 1992 CanLII 7089 (NL CA), per Goodridge CJ, ("The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel.")
↑ R v T(LA), supra
↑ R v McNeil, 2009 SCC 3 (CanLII), per Charron J (8:0) para 14
↑ McNeil, supra at para 22
↑ R v Gingras, 1992 CanLII 2826 (ABCA), per curiam
↑ R v Thompson, 2009 ONCA 243 (CanLII), per Goudge JA (3:0)
R v Schertzer, 2011 ONSC 65 (CanLII), per Pardu J, at para 41
↑ Bottineau, supra at para 31
↑ R v Stinchcombe, supra at p. 343 ("In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of his right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done.")
↑ R v Heaton, 2014 SKCA 140 (CanLII), per Jackson JA (3:0), at para 24
R v Underwood, 1998 CanLII 839 (SCC), [1998] 1 SCR 77, per Lamer CJ (5:0) at para 5

First-Party Disclosure Principles and Obligations ("Stinchcombe")

The Martin Committee produced a report considering the decision. The report detailed the principles of the case, at p. 146:

The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction, but, rather, are the property of the public to ensure that justice is done.^[1]
The general principle is that all relevant information must be disclosed, whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information, whether it is inculpatory or exculpatory, and must produce all information which may assist the accused. If the information is of no use, then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion, which is reviewable by the trial judge.

Satisfaction of the obligation to disclosure must be read in context and does not have to be "perfect".^[2]

Identity of Crown
In the context of all first party or Stinchcombe disclosure issues, the term "Crown" refers only to the "prosecuting crown" and not all crown entities including police. All Crown entities other than the "prosecuting crown" are considered "third-parties". ^[3]

Disclosure to Crown
The obligations upon the Crown are not reciprocal and there is no obligations upon the defence to disclose anything prior to trial.^[4]

↑ Stinchcombe, supra, at para 12
↑ R v Dunn, [2009] OJ No 5749, 2009 CanLII 75397 (ON SC), per Boswell J ("Disclosure must be considered within this context. It does not have to be perfect, but it does have to be fundamentally fair and sufficient to allow an accused to exercise his or her constitutional right to make full answer and defence.")
R v Eddy, 2014 ABQB 164 (CanLII), per Acton J at para 177
↑ Elkins, supra at para 27
Jackson, supra at para 80
Quesnelle, supra at para 11
McNeil, supra at para 22
↑ R v Mitchell, 2018 BCCA 52 (CanLII), per Fisher JA, para 51

Preservation of Evidence

Stinchcombe obligation also requires the Crown to preserve all relevant evidence.^[1]

At common law, there is a principle of “Omnia praesumuntur contra spoliatorem” that suggests that a party who destroys documents must rebut the presumption that the documents were unfavourable to their case.

↑ R v La 1997 CanLII 309 (SCC), per Sopinka J, at para 17
R v FCB, 2000 NSCA 35 (CanLII), per Roscoe JA (3:0), at para 10

Sufficiency for Election and Plea

Initial disclosure should be provided before the accused should be required to make election and plea.^[1] This is so that the accused can make an informed decision at "all fundamental steps that affect his rights in a crucial way".^[2] Many tactical factors can come into play that would influence the choice of manner of trial.^[3]

↑ R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) at pp. 342-3
R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0) at paras 19 to 20
R v Girimonte (1997), 1997 CanLII 1866 (ON CA), 37 O.R. (3d) 617, 121 CCC (3d) 33 (Ont.C.A.), per Doherty JA (3:0), ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in Stinchcombe, supra at p. 343 SCR, p. 221 C.R.R., p. 14 CCC, the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process")
R v NNM, 2006 CanLII 14957 (ON CA), per Juriansz JA (3:0) at para 37 ("Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial. .”")
R v Kovacs-Tator (2004), 2004 CanLII 42923 (ON CA), 192 CCC (3d) 91, per curiam (3:0) at para. 47 (Ont. C.A.) ("the Crown is not obliged to disclose every last bit of evidence before a trial date is set")
↑ Egger, supra at paras 19 to 20
R v Lahiry, 2011 ONSC 6780 (CanLII), per Code J at para 114 ("It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.")
↑ e.g. R v Black, 1998 CanLII 5042 (NS SC), per Saunders J- judge lists tactical factors that come into play in making election

Delaying and Withholding Disclosure

The entitlement to disclosure "is neither absolute or unlimited".^[1]

Where disclosure is delayed or withheld is it the burden of the Crown to justify it.^[2]

Delayed Disclosure
The Crown has a limited discretion to delay disclosure in "rare circumstances" in order "to protect the integrity of an ongoing investigation".^[3] Or where it is necessary to protect the safety of certain witnesses.^[4]

The Crown also has discretion to determine the most effective manner in which to produce disclosure.^[5]

A great amount of deference should be given to the manner and timing of disclosure.^[6]

The defence'sc choice to have a preliminary inquiry before setting a matter for trial cannot be used as an excuse for delay of disclosure.^[7]

Withheld Disclosure
The most obvious reasons for withholding disclosure in where it is (1) "clearly irrelevant"; (2) the information was privileged; (3) disclosure of the information was governed by law; and (4) premature disclosure may result in harm to an individual or public interest.^[8]

↑ R v Basi, 2009 SCC 52 (CanLII), [2009] 3 SCR 389, per Fish J (7:0), at para 1
R v McNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0), at para 18
↑ R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0), at p. 466
↑ Stinchcombe, supra at p. 339
↑ R v Vokey, 1992 CanLII 7089 (NL CA), per Goodridge CJ
↑ Stinchcombe, supra at p. 339
R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0) at para 21
R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0)
R v Durette, [1994] 1 SCR 469, 1994 CanLII 123 (SCC), per Sopinka J (4:3)
↑ Stinchcombe, supra at p. 340
↑ R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0)
↑ McNeil, supra

When the Obligations Exist

The Crown will only be subject to disclosure obligation where there is evidence in its possession or control and it is relevant. This is will only apply once the defence seeks to exercise its right to disclosure.

Information in possession of the government but not discovered in the course of the investigation is not governed by Stinchcombe. ^[1] Stincombe will generally only apply to the "fruits of the investigation". ^[2]

↑ R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J at para 24
↑ Elkins, ibid. at para 25

Defence Engaging Disclosure Obligations

The right to disclosure is triggered once defence counsel requests it.^[1]

The obligation will exist for all evidence for which there is a "reasonable possibility" that the evidence will used in making full answer and defence.^[2]

The duty to disclose is engaged once the accused requests information from the crown any time after the charge has been laid. ^[3] If defence fails to raise the issue and remains passive, they are less able to claim that non-disclosure affected trial fairness.^[4]

Defence have an obligation to diligently pursue disclosure by actively seeking and pursuing disclosure once they become aware or ought to have been aware of it.^[5] This means the defence should bring any failure to disclose to the Court's attention at the earliest opportunity so that the judge can remedy any trial unfairness.^[6]

Defence cannot claim a lack of disclosure affected trial fairness when they remain passive a tactical decision or due to lack of diligence.^[7]

Fishing Expeditions
Defence should not engage in disclosure requests that amount to mere "fishing expeditions" as they tend to "undermine the good faith and candour which should govern the conduct of counsel."^[8]

↑ R v Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC), per Sopinka J (7:0), at p.342 ("The obligation to disclose will be triggered by a request by or on behalf of the accused. Such a request may be made at any time after the charge.")
R v O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), per Lamer CJ and Sopinka J (dissenting on other issues), at para 5 ("The Crown's duty to disclose information in its possession is triggered when a request for disclosure is made by the accused")
R v Anderson, 2013 SKCA 92 (CanLII), per Ottenbreit JA (3:0) at para 17
("The obligation to disclose will be triggered by a request by or on behalf of the accused")
R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0), ("The Crown's obligation to disclose is triggered by a request for disclosure from counsel for an accused.")
↑ R v Chaplin, [1995] 1 SCR 727, 1995 CanLII 126 (SCC), per Sopinka J (9:0), at paras 26 to 27 ("The Crown's disclosure obligations are triggered when there is a reasonable possibility the evidence wil lbe useful to the accused in making full answer and defence.")
see also R v Taillefer, 2003 SCC 70 (CanLII), per LeBel J (9:0) at para 61
↑ Stinchcombe #1 at p. 342
↑ R v Dixon, 1998 CanLII 805 (SCC), per Cory J (5:0), at para 38
↑ R v Stinchcombe #1, supra at 341
Dixon, supra at para 37
↑ Stinchcombe, supra at 341
↑ Dixon, supra at para 38
↑ Girimonte, supra

Burden

Once the right to disclosure has been invoked by the Defence the onus is upon the Crown to comply with the obligation. The Crown may refuse to disclose certain information, but has the burden of proving why full disclosure should not be applied.^[1]

Bases for Refusing Disclosure

The information will not be considered disclosure where it is: ^[2]

Irrelevant
Not in the control of the Crown
Privileged

Satisfying any one of these requirements will eliminate any disclosure obligations upon the Crown. The Crown may then refuse the request.^[3]

Standard of Proof

The grounds to disclose must be established on a balance of probabilities.^[4]

Crown Disputing Relevance

If the crown disputes the existence of any particular material, the applicant "must establish the basis that could enable to court to conclude that further material exists that is potentially relevant. The existence of the disputed material must be sufficiently identified, not only to reveal its nature but also to permit the court to conclude that it made meet the test required for prosecutorial disclosure".^[5]

The Crown must satisfy the court that the evidence sought is "clearly irrelevant".^[6]

↑ R v Durette, 1994 CanLII 123 (SCC), [1994] 1 SCR 469, per Sopinka J, at para 44
In contrast, if the disclosure are third-party records, the burden is upon the accused.
↑ Chaplin, supra at para 25 (The Crown "must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged")
see also R v Bottineau, 2005 CanLII 63780 (ON SC), [2005] O.J. No. 4034, per Watt J at para 45
↑ Stinchcombe, supra at p. 339
Stinchcombe #2, supra at p.755
↑ R v Dixon, [1998] 1 SCR 244, 1998 CanLII 805 (SCC), per Cory J (5:0) at para 32
↑ R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0), at paras 30 to 33
↑ R v Gubbins, 2018 SCC 44 (CanLII), per Rowe J (8:1), at para 29
R v Stipo, 2019 ONCA 3 (CanLII), per Watt JA, at para 79
In comparison the standard for third party disclosure is "likely relevant" (see Stipo at para 80)

Possession or Control

See also: Disclosure of Third Party Records

Just because a record is in the possession of a Crown entity, does not amount to possession or control.^[1]

The law cannot impose an obligation of the crown in relation to materials that "does not have or cannot obtain". ^[2]

Where evidence is not in the control of the Crown it may be the subject of a common law third party records application, also known as an "O'Connor Application".^[3]

In an O'Connor application, the Defence must show that the evidence is "likely relevant".^[4]

The prosecuting Crown has an obligation to "make reasonable inquiries of other Crown entities and other third parties" of whether they may be in possession of relevant evidence.^[5]

↑ R v NcNeil, 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0)
R v Oleksiuk, 2013 ONSC 5258 (CanLII), per James J at para 26
↑ R v Elkins, 2017 BCSC 245 (CanLII), per Sewell J at para 25
McNeil at para 22
↑ R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 SCR 411 (S.C.C.), per L'Heureux‑Dubé J
McNeil, supra
↑ O'Connor, supra
↑ McNeil, supra at paras 13, 49

Relevance

Not all information in possession of police must be disclosed. It must only be "relevant" evidence.^[1] The "threshold question in any instance of non-disclosure is whether the evidence was relevant"^[2]

The threshold of relevancy is quite low. The relevancy exists where there is "a reasonable possibility of the information being useful to the accused in making full answer and defence".^[3] Full answer and defence is engaged where the evidence can be used:^[4]

in meeting the Crown's case;
"advancing a defence";
"otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence".

The scope of relevancy is "broad" and will include materials that "may have only marginal value to the ultimate issues at trial."^[5] The Crown "must err on the side of inclusion" when deciding whether to include the materials in disclosure.^[6]

Relevance is not limited solely to inculpatory evidence nor only evidence that the Crown would adduce at trial. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the Defence. All possible exclupatory evidence must be provided as well, however, this obligation does not extend to a duty to examine the exculpatory evidence.^[7]

Relevance can be related to the usefulness for defence as far as decisions on conducting the defence including whether to call evidence.^[8]

Relevant evidence is not limited to admissible evidence and can include that evidence which is not inadmissible at trial.^[9]

Limitations on Relevance
Relevancy however can be limited by the need for a "realistic standard of disclosure consistent with fundamental fairness."^[10] It must still permit the sustem to be "workable, affordable and expeditious". It should not be so broad as to include "anything that might conceivably be used in cross-examination".^[11] It is not meant to include "every scintilla of information" that may have utility to the defence.^[12]

There is some authority to suggest that when the relevancy only relates to a voir dire on admissibility of evidence, and not the trial itself, the burden is upon the accused.^[13]

Refusal to disclose clearly irrelevant disclosure
The burden is upon the Crown to prove that the information was "clearly irrelevant".^[14]

Refusal to disclose is reviewable by the trial judge.^[15]

↑ R v Banford, 2011 SKQB 418 (CanLII), [2012] 3 W.W.R. 835, per McLellan J at para 5 citing Stinchcombe, among others
↑ R v Banford, 2010 SKPC 110 (CanLII), 363 Sask. R. 26 (SKPC), per Toth J at para 13
↑ R v McNeil 2009 SCC 3 (CanLII), [2009] 1 SCR 66, per Charron J (8:0) at para 14 (includes “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.”)
R v Taillefer, [2003] 3 SCR 307, 2003 SCC 70 (CanLII), per LeBel J (9:0), at para 60
R v Chaplin, 1995 CanLII 126 (SCC), (1995) 96 CCC (3d) 225 (S.C.C.), per Sopinka J (9:0) at p. 236
R v Dixon, 1998 CanLII 805 (SCC), (1998) 1 SCR 244, per Cory J (5:0) at paras 20 to 22
R v Girimonte, 1997 CanLII 1866 (ONCA), per Doherty JA (3:0) at pp. 41 to 42 (information is relevant if "there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence.")
R v Egger, [1993] 2 SCR 451, 1993 CanLII 98 (SCC), per Sopinka J (5:0) at p. 467
R v Banford, 2011 SKQB 418 (CanLII), per McLellan J at para 5
↑ Egger, supra at p. 467
Dixon, supra at paras 20 to 22
R v Anderson, 2013 SKCA 92 (CanLII), per Ottenbreit JA (3:0)
↑ Dixon, supra, at para 23
↑ Chaplin, supra
↑ R v Daley, 2008 BCCA 257 (CanLII), [2008] BCJ No. 1341, per Lowry JA, at paras 13 to 15 and by the Ontario Court of Appeal in R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA (3:0)
, 252 CCC (3d) 1 at paras 28-30 and 39-40 leave to SCC denied
↑ R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0) at p. 467 ("if it is of some use, it is relevant and should be disclosed ...This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.")
↑ R v Barbosa (1994), 92 CCC (3d) 131 (Ont. Gen. Div.), 1994 CanLII 7549 (ON SC), per Hill J at 140
R v Derose, 2000 ABPC 67 (CanLII), per Allen J
↑ O'Connor, supra at para 194
↑ O'Connor, supra at para 194
↑ O'Connor, supra at para 194
↑ R v Ahmed, 2012 ONSC 4893 (*no CanLII links) - disclosure of source handler notes
R v Cater, 2011 NSPC 86 (CanLII), per Derrick J, at para 26
↑ R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 (S.C.C.), per Sopinka J (7:0)
R v Pena 1996 CarswellBC 2885(*no CanLII links) at para 17
↑ Stinchcombe, supra at p 12

Privilege

See also: Privilege

Privileged materials can take many forms:^[1]

protection of persons from harassment or injury^[2]
protect informer privilege ^[3]
protect confidential investigative techniques ^[4]
protection of confidential information while an investigation is ongoing ^[5]
statutory privilege such as under the Code and CEA

Any materials in control of the Crown that is claimed to be privileged cannot be compelled to disclose to either the defence or the court unless there are proper grounds. ^[6] The McClure threshold test determines the grounds which requires the materials could raise a reasonable doubt of guilt.^[7] The threshold test requires:^[8]

there be no other source of the information sought;
the accused cannot raise a reasonable doubt in any other way.

Materials that "may put at risk the security and safety of persons who have provided prosecution with information" is protected by informer privilege.^[9]

Where the materials are privileged there is no need to address threshold relevance.^[10]

Burden
Where the defence seek disclosure of claimed privileged materials, "the accused has the burden of demonstrating why privilege is wrongly claimed".^[11]

↑ e.g. R v Eddy, 2014 ABQB 164 (CanLII), per Acton J at para 23
↑ see Stinchcombe #1 at p. 336
↑ see Stinchcombe #1 at p. 336
↑ Richards, 1997 CanLII 3364 (ON CA), per curiam
↑ R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451, per Sopinka J (5:0)
↑ R v Polo, 2005 ABQB 250 (CanLII), per Clackson J at para 27
R v McClure, 2001 SCC 14 (CanLII), [2001] 1 SCR 445, per Major J (9:0) at para 27
↑ McClure, supra at para 27
↑ Polo, supra at para 15
↑ R v Stinchombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J (7:0) at para 16
↑ R v Leipert, [1997] 1 SCR 281, 1997 CanLII 367 (SCC), per McLachlin J (9:0), at para 36
↑ R v Eddy, 2014 ABQB 164 (CanLII), per Acton J at para 92
See also R v Polo, 2005 ABQB 250 (CanLII), per Clackson J

Duration of the Obligation

The obligation to provide disclosure only begins once charges have been laid. There is no right prior to that.^[1]

The duty is engaged upon the request of the accused. It is continuous throughout the proceedings up to and including the trial. The Crown may object to the request on the basis that it is irrelevant, outside of their control, or otherwise privileged.^[2] The burden is on the Crown to justify the refusal to disclose.

The duty to disclose is ongoing and so any new information received must also be disclosed.^[3]

Once the Crown alleges that it has fulfilled the disclosure obligation it has no obligation to justify the "non disclosure of materials the existence of which it is unaware or denies." Unless the applicant is able to "establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant...".^[4]

↑ R. v Gillis, 1994 ABCA 212 (CanLII), per Fraser CJ (3:0) at para 7
↑ R v Chaplin, 1995 CanLII 126 (SCC), [1995] 1 SCR 727, per Sopinka J (9:0)
↑ R v Stinchcombe #1 at 343
↑ Chaplin, supra, at 743

After Verdict

Fresh Evidence

The right to disclosure may not extend to the into a conditional sentence breach hearing as there is less of a right to full answer and defence.^[1]

The obligation to disclose remains in effect through the appellate process.^[2] This obligation covers any materials in the possession of the crown that "may reasonably assist the appellant in the prosecution of his or her appeal, subject to any privilege or overriding third-party privacy interest".^[3]

Where in applicant seeks further disclosure on appeal to support a fresh evidence application, he must establish that:^[4]

There is a connection between "the request for production and the fresh evidence proposed, or in other words the applicant must show that there is a reasonable possibility that the material sought could assist on the application for fresh evidence"
There is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

↑ R v Sitaram 2011 ONCJ 199 (CanLII), per Nakatsuru J
↑ R v Trotta, 2004 CanLII 60014 (ONCA), per Doherty JA (3:0)
R v Meer, 2015 ABCA 163 (CanLII), per Veldhuis JA (alone)
↑ Trotta, supra at para 25
Meer, supra at para 8
↑ Trotta at para 23
Meer, supra at para 9

Timing of Disclosure

see also: Delayed Disclosure, above

Conceptually, Disclosure can be divided into three phases:^[1]

"Initial disclosure": evidence required before there can be an election of mode of trial;^[2]
"Intermediate disclosure": evidence required before a plea is entered; and
"Final disclosure": all Disclosure must be provided prior to trial.

It is not always necessary to provide full disclosure prior to a preliminary inquiry as long as full disclosure is made early enough before trial so as not to violate the right to full answer and defence.^[3] Where sufficient but incomplete evidence is disclosed, the defence are not entitled "to refuse to proceed to the next step or to set a date for trial".^[4]

Consequence of Late Disclosure
Where the late disclosure does not amount to a Charter breach that would require a stay of proceedings, the judge can consider a mistrial, a refusal to admit the evidence or an adjournment.^[5]

Witnesses Changing Evidence
Where the Crown learns of a recanting witness and provides immediate notice to the defence counsel on the night before the witness is to testify, it does not violate the right to full answer and defence.^[6]

↑ R. v Valdirez-Ahumada, 1992 CanLII 875 (BC SC), per unknown J
↑ See also R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0) ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure.")
↑ R v Nova Scotia Pharmaceutical Society, 1992 CanLII 4513 (NS SC), per A Boudreau J
R v Biscette, 1995 ABCA 234 (CanLII), per Côté JA (2:1)
R v Adam, 2006 BCSC 350 (CanLII), per Romilly J
↑ R v NNM, 2006 CanLII 14957 (ON CA), per Juriansz JA
↑ R v Barrette, 1976 CanLII 180 (SCC), [1977] 2 SCR 121, per Pigeon J
R v Davis (1998), 1998 CanLII 18030 (NL CA), 159 Nfld & PEIR 273 (NLCA), per Green JA
↑ R v Buric, 1996 CanLII 1525 (ON CA), per Labrosse JA (2:1)

Sufficiency of Existing Disclosure

It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate.^[1]

Experts
See Expert Evidence#Notice to Call Expert Evidence for details on sufficiency of disclosure summarizing the expert's evidence. A failure to provide sufficient disclosure in relation to the experts could result in a mistrial.^[2]

↑ see below regarding "Where the Obligation Does Not Exist"
↑ e.g. BB, 2016 ABQB 647 (CanLII), per Pentelechuk J - motion for mistrial denied
R v LAT, 1993 CanLII 3382 (ON CA), per Lacourcière JA (3:0) - new trial ordered for calling rebuttal witness without sufficient disclosure of rebuttal witness.

Duty to Inquire and Obtain Disclosure ("McNeil" Obligations)

See also: Disclosure of Third Party Records

In "appropriate cases", the Crown has an obligation "to make reasonable inquiries" with third-party state authorities who are believed to be in possession of threshold relevant materials.^[1]

For the purpose of first-party disclosure obligations, the "Crown" refers to the "prosecuting Crown" only.^[2]

It is not a valid argument to simply assert that the inquiry should be made because it is "easy".^[3]

Threshold relevance

Where the evidence is “obviously relevant” he Crown must disclose unprompted.^[4]

The test for McNeil record is “likely relevant” or “reasonably possible” relevance. McNeil, supra at para 43 and 44

Duty of inquiry

Where inquiry has failed the crown must notify the accused.^[5]

The duty is engaged once the prosecuting Crown becomes aware of the relevancy of certain records.^[6]

Example organizations

Relevant records held by Health Canada would be considered McNeil records that the Crown is obliged to seek out.^[7]

This may include the provincial securities commission who are known to have undertaken a investigation related to the prosecution. ^[8]

↑ R v McNeil, 2009 SCC 3 (CanLII), per Charron J (8:0) at para 13
↑ R v Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 (CanLII), per Karakatsanis J (7:0)
McNeil, supra
↑ R v Woods, 2015 ABPC 23 (CanLII), per Lepp J, at para 31 ("it is important to remember that the accused does not overcome the hurdle of providing evidence that the information sought actually exists and is relevant by showing only that the inquiry is easy to make. If it were otherwise, “easy inquiries” would quickly become the equivalent of first party disclosure and the authorities would suffer death by a thousand cuts.")
↑ McNeil, supra
↑ McNeil, supra
↑ McNeil
↑ R v King (No. 5), 2017 CanLII 15296 (NL SCTD), per Marshall J at para 53
↑ R v Clarke, Colpitts and Potter, 2013 NSSC 386 (CanLII), per Hood J

Procedure For Enforcing Right

Where disclosure issues arise, the court should consider the issues as follows: ^[1]

establish a violation of the right to disclosure;
demonstrate on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose;
discharge this burden by demonstrating that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process.

Jurisdiction
A preliminary inquiry judge has no jurisdiction to order the crown to provide disclosure.^[2]

Only the trial judge may make an order directing the Crown to disclose information in its control.^[3] Accordingly, a provincial court judge cannot order disclosure unless the mode of trial was by provincial court judge.

A preliminary inquiry judge has no power to order disclosure and is not a "court of competent jurisdiction" to make such an order.^[4]

Where defence believe initial disclosure is insufficient for making election, the justice may adjourn the election to allow the accused to seek remedy from a superior court.^[5]

Where a superior court is the trial court, it will be a "court of competent jurisdiction" under s. 24(1) of the Charter.^[6]

A superior court should generally defer motions until the matter is before the trial court rather than still with the inferior court.^[7]

In "unusual" or "exceptional" cases a superior court justice may exercise jurisdiction under s. 24(1) of the Charter to order disclosure while the matter is still before a preliminary inquiry judge.^[8] The limited jurisdiction to order disclosure does not affect the Crown obligation to provide timely disclosure.^[9]

Issues relating to the "manner of disclosure tend to fall within the category of exceptional cases".^[10]

↑ R v Ginnish, 2014 NBCA 5 (CanLII), per Green JA (3:0) at para 24
↑ R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA
↑ R v SSS, 1999 CanLII 15049 (ONSC), per Watt J at para 34
↑ SSS, ibid. at para 36
Girimonte, supra, at p. 43
↑ Girimonte, supra
↑ R v Mills, [1986] 1 SCR 863, 1986 CanLII 17 (SCC), per McIntyre J
R v Rahey, [1987] 1 SCR 588, 1987 CanLII 52 (SCC), per Lamer J (superior courts have "constant, complete and concurrent jurisdiction" with respect to s. 24(1) of the Charter, even when the matter is still before an inferior court)
↑ R v Smith, [1989] 2 SCR 1120, 1989 CanLII 12 (SCC), per Sopinka J (9:0)
Rahey, supra at para 16 ("But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate.") c.f. R v Blencowe, 1997 CanLII 12287 (ON SC), per Watt J - the superior court has "constant, complete and concurrent jurisdiction with the trial court for applications under Charter s. 24(1)"
↑ R v Girimonte, 1997 CanLII 1866 (ON CA), per Doherty JA (3:0) - CA dismisses appeal on disclosure order
R v Mohammed, 2007 CanLII 5151 (ON SC), per Dawson J, at para 2 - relates to application while matter is before preliminary inquiry judge
R v Hallstone Products Inc., 1999 CanLII 15107 (ON SC), per LaForme J
R v Mincovitch, 1992 CanLII 7585 (ON SC), per A Campbell J
↑ Girimonte
↑ Mohammed at para 2
Hallstone
Blencowe

Crown Disclosure Decisions

Review of Decisions
It is the Crown's decision to determine "what material is properly subject to disclosure to the defence".^[1]

The decisions of Crown to disclosure certain information and not other is reviewable the trial judge.^[2]

In exceptional circumstances any superior court of criminal jurisdiction may review the disclosure under s. 24(1) of the Charter.^[3]

Remedy for improper disclosure decisions are "largely, but not exclusively, Charter based."^[4]

↑ R v SSS, 1999 CanLII 15049 (ONSC), per Watt J at para 33
R Girimonte 1997 CanLII 1866 (ON CA), per Doherty JA (3:0) at p.42
↑ SSS, supra} at para 34
R v Girimonte, supra at p. 43
R v Laporte (1993), 1993 CanLII 9145 (SK CA), 84 CCC (3d) 343 (Sask. C.A.), per Sherstobitoff JA
↑ SSS, supra at para 34
Stinchcombe, supra at pp. 11 to 12
R v Mohammed, 2007 CanLII 5151 (ON SC), per Dawson J at para 2B
Hallstone Products Inc., 1999 CanLII 15107 (ON SC), per LaForme J at para 17
R v Mincovitch, 1992 CanLII 7585 (ON SC), per A Campbell J ("The Supreme Court of Canada and the Court of Appeal have consistently preferred the trial court to resolve Charter applications because trial courts are best suited to resolve conflicting viva voce evidence and because of the great risk of delay and fragmentation of the trial process inherent in the likelihood of interlocutory appeals.")
↑ Girimonte, supra

Types of Disclosure

Types of Disclosable Materials

Where the Obligation Does Not Exist

It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate or defend.^[1]

↑ R v Eddy, 2014 ABQB 164 (CanLII), per Acton J at para 137
R v Darwish, 2010 ONCA 124 (CanLII), per Doherty JA (3:0) at paras 32 to 40
R v Dias, 2010 ABCA 382 (CanLII), per curiam (3:0) at para 38

Vetting Disclosure

When documents are to be released for disclosure, the police and crown are permitted to vet the materials for the purpose of removing information that may not be disclosable. Types of information that can be validly redacted from the disclosure before going out to the defence include:

clearly irrelevant information
information tending to identify a confidential police source
police investigative techniques
advice that would be covered by solicitor-client privilege (either defence counsel or crown counsel)

See further details on Privilege section.

Restricting Access to Disclosure

Limitations on Access to Disclosure

Breach of Disclosure Obligation

To engage Stinchcombe the Applicant accused has the burden of proving that there was a "reasonable possibility" that his right to make full answer and defence was impaired by the Crown's actions.^[1]

Not every failure to comply with Stinchcombe obligations will result in a Charter breach. There will no Charter breach if the failure "could not possibly affect the reliability of the result reached or the overall fairness of the trial process."^[2]

Where relevancy is in dispute, the burden rests on the accused to prove on a balance of probabilities that breach of the Charter right to disclosure has been violated.^[3]

Where a breach of the right to full disclosure is found it does not necessarily follow that the right to make full answer and defence was violated.^[4] Where the right to make full answer and defence is not implicated, the usual remedy is either an adjournment or order of production.^[5] In fact in general, where disclosure has not been given or is given late, the usual remedy is an adjournment.^[6]

Where there is a failure on the part of the Crown to meet the Stinchcombe obligations, there is an obligation on the part of the defence to raise the issue.^[7]

A failure to disclose will invoke s. 7 and 11(d) of the Charter.^[8]

To establish a breach of s. 7 due to non-disclosure does not require that the claimant show actual prejudice.^[9] However, a remedy under s. 24(1) to a breach to s. 7 or 11(d) of the Charter "will generally require a showing of actual prejudice to the accused's ability to make full answer and defence".^[10]

↑ R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J
↑ R v Greganti, 2000 CanLII 22800 (ON SC), per Stayshyn J
↑ see R v O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R .411 (S.C.C), per L'Heureux‑Dubé J J
R v Bjelland, 2009 SCC 38 (CanLII), [2009] 2 S.C.R 651, per Rothstein J (4:3)
↑ R v Dixon, supra, at 23 and 24
↑ see R v Dixon, supra, para 31 and 33
↑ R v Demeter (1975) 10 OR 321 (CA), 1975 CanLII 685 (ON CA), per curiam
R v Caccamo, 1975 CanLII 11 (SCC), [1976] 1 SCR 786, per de Grandpré J
Bjelland, supra at para 25
↑ R v Greganti ("When the defence is aware of a failure ... to disclose relevant material, there is an obligation to bring that failure to disclose to the attention of the Crown, and ... the Court.")
↑ O'Connor, [1995] 4 SCR 411, 1995 CanLII 51 (SCC), per L'Heureux‑Dubé J at para 73
R v Khela, [1995] 4 SCR 201, 1995 CanLII 46 (SCC), per LeBel J, at para 18
↑ R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J, at para. 37 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice.")
↑ Carosella, ibid. at para 37
O'Connor, supra at para 74
R v La, [1997] 2 SCR 680, 1997 CanLII 309 (SCC), per Sopinka J, at para 25