Special Disclosure Issues

From Criminal Law Notebook

Defence Duty to Disclose to Crown

There are limited obligations on defence to disclose evidence to the Crown. The primary obligation to disclose defence evidence is when alibi evidence will be advanced.[1]

Where defence is calling expert evidence supported by a report, the report and any other foundation materials must be disclosed to the Crown no later than the time at which the witness is called.[2]

Normally, the accused is entitled to retain an expert or conduct independent investigations without any obligation to disclose any of the results or any materials the independent third party relied upon.[3] These materials are considered covered by litigation privilege.[4]

When the accused elects to call such a witness to testify, the act of calling the expert constitutes waiver of litigation privilege.[5]

There are several disclosure obligations. An expert witness who is to testify for the defence must provide 30 days notice of the intention to call the expert witness and provide the report or summary of evidence no later than at the close of the Crown's case.[6]

When an expert testifies at trial, the party calling them must disclose any material considered by the expert in coming up with their opinion.[7]

It does not matter whether the particular document was made for the use of counsel or for the assistance of the experts, it is only whether the records relate to information that the expert relied upon.[8] So for example, if defence possessed a recording made in an interview with a person who's evidence the expert relied upon, then it will constitute disclosable records. It is not necessary that the expert put weight on the particular record.[9]

Defence obligation is not satified by merely disclosing a summary of the record.[10]

Although the accused is entitled to withhold the records until the moment the expert is called, the Crown may seek an order for disclosure pre-emptively and may be entitled to an adjournment to review the materials alone or with a Crown expert.[11]

Records disclosed by defence can be used by the Crown for any legimitate purpose and not solely for the purpose of cross-examining the expert witness.[12]

  1. ↑ See Alibi
  2. ↑ R v Stone, 1999 CanLII 688 (SCC), [1999] 2 SCR 290, per Bastarache J
  3. ↑ R v Alek Minassian, 2020 ONSC 7130 (CanLII), per Molloy J, at para 7
  4. ↑ See Litigation Privilege
  5. ↑ Stone, supra ("The act of calling of Dr. Janke would certainly constitute waiver of any privilege attached to his report. As noted by McEachern C.J., once a witness takes the stand, he/she can no longer be characterized as offering private advice to a party.")
  6. ↑ Minassian, supra, at para 8
  7. ↑ Minassian, supra, at para 9 ("it is well accepted in the case law (and not in dispute in this case) that when an expert testifies at trial, disclosure must be made of any material relied upon by the expert in coming to his or her opinion.")
    Stone, supra ("...the opposing party must be given access to the foundation of such opinions to test them adequately. Given the fact that the report would have to have been disclosed after Dr. Janke’s direct examination, the prior disclosure of the report cannot be said to have had any material impact on the outcome of the trial. Absent the earlier disclosure, the Crown would have been entitled to stand the appellant down before completing its cross‑examination of him, and to recall him once they had been given an opportunity to consider the contents of the report")
  8. ↑ Minassian, supra, at para 13
  9. ↑ Minassian, supra
  10. ↑ Minassian, supra, at para 15
  11. ↑ Minassian, supra, at para 19
  12. ↑ Minassian, supra, at paras 21 to 24

Pre-Charter and Pre-Stinchcombe Disclosure

Under the common law the Crown has a general duty to disclose material evidence to the defence regardless of whether it is favourable to the Crown and whether the witness will be called by the Crown.[1] A breach of the common law duty render the trial unfair and be ground for appeal.[2]

  1. ↑ R v Lemay, 1951 CanLII 27 (SCC), [1952] 1 SCR 232, per Kerwin J
  2. ↑ R v C(MH), 1991 CanLII 94 (SCC), [1991] 1 SCR 763, per McLachlin J

Uses of Disclosure Other Than For Defence

When defence take possession of disclosure there is an implied undertaking "not to disclose its contents for any purpose other than making full answer and defence in the proceedings".[1] They have an obligation as officers of the court to not disclose any materials to the public.[2] Disclosure to third-parties is only available where their "examination or possession of the material is in good faith necessary to prepare and conduct the defence".[3]

The Crown can petition the Court to order that defence counsel return any disclosure given to them once the entitlement to the materials have expired.[4]

  1. ↑ R v Basi, 2011 BCSC 314 (CanLII), per MacKenzie ACJ, at para 42 ("...I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.")
    R v Little, 2001 ABPC 13 (CanLII), per Meagher J
    R v Mossaddad, 2017 ONSC 5520 (CanLII), per Edwards J, at para 38 ("...the time has come for this court to recognize that whether or not the Crown disclosure provided to defence counsel or a self-represented accused is the subject of a written undertaking, that a deemed undertaking nonetheless would apply such that the only basis upon which the Crown disclosure may be used would be in the context of providing a full answer and defence to the criminal proceedings.")
    Home Office v Harman (H.O.(E.)) , [1983] A.C. 280 (H.L.) (UK), at p. 304 - in civil context, breach of implied undertaking amounts to contempt of court. Adopted in Canada in Worth Ltd. v Acadia Pipe and Supply Corp., et al , 1991 CanLII 5837 (AB QB), 113 AR 298 (Q.B.), per Lutz J and in Goodmani v Rossi, 1995 CanLII 1888 (ON CA), 125 DLR (4th) 613, 24 OR (3d) 395 (CA), per Morden ACJ
  2. ↑ R v Smith, 1994 CanLII 5076 (SKQB), 146 Sask R 202 (Q.B.), per Walker J ("One of those duties [to the court], in my view, is not to give disclosure materials to the public. To do so would fall short of acting responsibly as an officer of the court. ") see also Report of the Attorney General’s Advisory Committee on Charge Screening Disclosure, and Resolution Discussions
  3. ↑ Smith, ibid., at p. 205
  4. ↑ Basi, supra

Return of Disclosure

Once proceedings have completed there is no entitlement to the disclosure.[1]

  1. ↑ R v Basi, 2011 BCSC 314 (CanLII), per MacKenzie J

Access to Disclosure by Third Parties

Typically disclosure constitutes confidential government records. They are obtainable from parties other than the Crown or Defence counsel by way of a request through the appropriate freedom of information or privacy legislation.[1]

A third party request for the production of materials that are part of a proceeding must be made to the presiding judge.

Where a matter has been concluded, the superior court does not have jurisdiction to order the release or production of any documents or evidence to third party applicants.[2]

  1. ↑ e.g. Federal (RCMP, etc): Privacy Act, RSC 1985, c P-21 and Access to Information Act, R.S.C., 1985, c. A-1
    Ontario: Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56
    Nova Scotia:Freedom of Information and Protection of Privacy Act, SNS 1993, c 5
    Alberta: Freedom of Information and Protection of Privacy Act
    Personal Information Protection Act
  2. ↑ Canadian Broadcasting Corporation v Canada (Attorney General), 2009 NSSC 400 (CanLII), 286 NSR (2d) 186, per LeBlanc J upheld at 2010 NSCA 99 (CanLII), per Bryson JA
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