B. Disclosure

AuthorSteve Coughlan
ProfessionProfessor of Law. Dalhousie University

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1) Creation of the Right: R v. Stinchcombe

In Stinchcombe, the Court found a duty on the part of the Crown to disclose its evidence to the accused. The Court rejected a number of arguments against disclosure. It pointed out that the Crown’s role is not to obtain a conviction but to lay all relevant evidence before the

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court. Any information in the hands of the Crown is therefore not a tool to convict the accused, but the property of the public to be used to ensure that justice is done. The Court also rejected the suggestion that Crown workloads would be increased by an obligation to disclose. It noted, as the Law Reform Commission studies found, that increased disclosure actually leads to an increase in cases settled, guilty pleas entered, and charges withdrawn, thereby decreasing Crown and court workloads. The Court acknowledged that some risk to informers may come from disclosure, but determined that this only affects the manner and timing of disclosure, not the general principle. The Court also acknowledged that disclosure may allow an accused to tailor a defence to anticipate the prosecution’s case, but held, nonetheless, that fairness to the accused requires that the accused see the evidence in advance.

This latter point is the most important in the Court’s reasoning. Although policy arguments lead them to conclude that routine disclosure is a desirable feature of the criminal justice system, it is the Charter, and in particular the accused’s right under section 7 to make full answer and defence, that is the mechanism by which that end is achieved. The Court concludes that "there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it."7

The fact that this right is guaranteed by the Charter has been significant in much of the Court’s later reasoning. For example, it means that the right potentially has application in any context where section 7 applies, not simply in domestic trials. In Canada v. Khadr the Court found that the applicant (who was detained by the U.S. in Guantanamo Bay but had been interrogated there by Canadian officials) was entitled to disclosure of the material gathered by Canada. The more difficult issue was whether the Charter applied at all given the extraterritorial nature of the investigation. Once it was found that it did, however, section 7 imposed a disclosure obligation.8

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2) Structure of the Right

First, the structure of the right as set out in Stinchcombe should be described. Whether evidence appears to be inculpatory or exculpatory is irrelevant to the obligation to disclose. The Crown is required to disclose on the request of the accused, made any time after a charge is laid. Disclosure ought to be made prior to election or plea, so that the accused can take the disclosed material into account in making a decision on those issues. The material to be disclosed includes all witness statements, whether the Crown intends to call the witness or not, and notes or "will say" statements where no actual statement exists. If there are no notes, the Crown should disclose the name, address, and occupation of a witness and any information the prosecution possesses concerning the evidence that person might give. In later cases the duty to disclose has been described as "triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence."9The obligation to disclose rests with the Crown in a broader sense- it includes both the Crown prosecutor and the police.10Further, the obligation to disclose is a continuing one, and the Crown must disclose any additional information it receives. Equally, the defence has a continuing obligation to seek disclosure, and is not entitled to assume that it has received all relevant information.11Where, following a review of disclosure by the trial judge, circumstances have changed, the appropriate approach for the Crown is to re-apply to the trial judge concerning the issue, rather than to fail to disclose and argue the issue on appeal.12The right to disclosure is not absolute. The Crown is obliged to err on the side of inclusion, but "it need not produce what is clearly irrelevant."13Similarly, the rules of privilege interact with the Crown’s

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obligation to disclose. It may be necessary, for example, to protect the identity of informers-this does not permit the Crown to refuse disclosure, but gives them some discretion with regard to the timing and manner.14Further, the need to complete an investigation may justify the Crown in delaying some disclosure.15The obligation to disclose evidence does not include a requirement that the Crown make its witnesses available for oral discovery.16The Court has distinguished between evidence known to exist but which has not been disclosed, and evidence whose existence is in dispute. In the former case, the burden clearly rests with the Crown to justify the non-disclosure of the evidence "by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged."17In the latter case, however, the Crown cannot be expected to justify the non-disclosure of evidence of which it is unaware or which it denies exists. In such circumstances, therefore, the defence is first required to show some basis that will allow the trial judge to conclude that potentially relevant further material exists.18

The right to disclosure is not meant to allow fishing expeditions on the part of the defence, and so does not, for example, require the Crown to disclose whether the accused has been the subject of a wiretap unrelated to the charges actually laid.19The rule of full disclosure, and its reliance on the accused’s right to full answer and defence, has been applied in more specific contexts. In R. v. Egger,20for example, the Court was required to consider section 258(1)(d) of the Code, which allows the Crown to rely on a certificate of a qualified technician as proof of the concentration of alcohol in the accused’s blood, as determined from an analysis of a blood sample. That section requires that the Crown have taken two samples of the accused’s blood, one to be provided to the accused on request for analysis. However, the section does not explicitly require that the accused be given notice of the existence of the sample. The Court noted that "one measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should

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be disclosed."21The various possible uses noted included "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."22Accordingly, it concluded that the Crown was required to inform the accused of the existence of the sample, and to do so at a time when the accused can usefully act on the information.

Similarly in R. v. Durette23the Court held that the same principles apply in the context of wiretap applications:

Apart from public interest concerns which may operate in a particular case, I see no reason why an accused should not be entitled to see exactly what the judge saw who relied on the affidavits to issue the authorization. Disclosure of the full affidavit should be the starting premise. Anything less potentially impairs an accused’s ability to make full answer and defence and must be justified by the Crown in accordance with established principles. Editing of these affidavits is best viewed as a necessary evil.24The existence of the right to disclosure has also affected the Court’s analysis in other areas. In R. v. Cook,25for example, the Court concluded that the Crown had no obligation to call witnesses in order for all material facts to be brought forward. Given the accused’s right to disclosure, the Crown’s decision not to call a witness will not prejudice an accused. If the Crown decides not to call a witness whose testimony has changed from an earlier statement, for example, the accused will have received the earlier statement and will be entitled to the later one, due to the Crown’s ongoing obligation to disclose.

Further, the Court has concluded that CSIS has, in the security certificate context, a duty to disclose similar to that in Stinchcombe. Although CSIS investigations are not criminal matters and do not lead to charges, seeking a security certificate with regard to a named person has serious implications for the liberty and security of the person concerned. These consequences include detention for an indefinite period or expulsion from the country. Accordingly section 7 is brought into play and there is a duty to disclose. However, the exact nature of that disclosure obligation is not identical to that in the criminal context. CSIS is required to retain all the information it uncovers and to disclose it to the ministers and the judge hearing the security certificate applica-

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tion. That judge is required to exclude any evidence that might pose a threat to national security and summarize the remaining evidence for the named person.26

3) Remedy for Breach of What Right: Disclosure or Full Answer and Defence?

The Court noted in Stinchcombe that the Crown’s discretion with regard to disclosure can be reviewed by the trial judge if...

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