Disclosure

• Author: Stephen Coughlan
• Profession: Professor of Law. Dalhousie University
• Pages: 197-223

197

CHA PTER 8

DISCLOSUR E

A. INTRODUCTION

For m any years, no effective right to disclosure of the Crown’s case

existed in Canada. Practice with regard to disclosure varied from court

to court, and even from prosecutor to prosecutor. Despite calls for com-

prehensive d isclosure schemes from the Law Reform Commission of

Canada1 no statutory scheme was introduced. The problems that could

arise from non-disclosure were made dramatically clear in the investi-

gation of the wrongf ul conviction of Donald Marshall, Jr., leading that

Royal Commission to point to the need for consistent di sclosure.2 In

general terms, that state of affairs changed with the Supreme Court of

Canada decision in R. v. Stinchcombe in 1991, which concluded that an

accused person had a right, under section 7 of the Canadian Charter

of Rights and Freedoms, to disclosure of the Crown’s case.3 The exact

contours of this r ight have continued to be developed in subsequent

caselaw, although Stinchcombe remains the leading case establishing

1 Law Reform Comm ission of Canada, Disco very in Criminal Cases (Ottawa: Law

Reform Commi ssion of Canada, 1974), and Disclosure by the Prosecutio n (Ot-

tawa: Law Refor m Commission of Canada , 1984).

2 Royal Commi ssion on the Donald Marshal l, Jr. Prosecution, Ro yal Commission

on the Donald Marshall, Jr. Prosecution, Fin dings and Recommendation s, vol. 1

(Halifax : The Commission, 1989).

3 R. v. Stinchcombe, [1991] 3 S.C.R. 326 [Stinchcombe].

CRIMIN AL PROCEDURE198

the general principle. The Court has sum marized the current st ate of

affairs w ith regard to disclosure:

The Crown must di sclose all relevant information to the accused,

whether inculpatory or exculpator y, subject to the exerc ise of the

Crown’s discretion to refuse to disclose information that is privileged

or plainly irrelevant. Relevance must be assessed i n relation both to

the charge itself and to the reasonably possible defences. The relevant

information mu st be dis closed whether or not the Crow n intends to

introduce it in evidence, before elect ion or plea. Moreover, all st ate-

ments obt ained from pe rsons who have provided relevant informa-

tion to the authorities should be produced notwithstand ing that they

are not proposed as Crown w itnesses. This Court has a lso def‌ined

the concept of “relevance” broadly . . . .4

B. CONTENT OF THE RIGHT TO DISCLOSURE

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 t he accu sed. The Court rejected a number of

arguments against disclosure. It pointed out that the Crown’s role i s

not to obtain a conviction but to lay all relevant evidence before t he

court. Any i nformation 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 th at justice is done. The Cour t also rejected the suggestion

that Crown workloads would be increased by an obligation to disclose.

It noted, as the Law Reform Commis sion studies found, that increas ed

disclosure actually leads to an increase i n cases settled, guilty pleas

entered, and charges withdrawn, thereby decreasing Crown and court

workloads. The Court acknowledged that some ri sk to i nformers may

come from disclosure, but determined that this only a ffects t he man-

ner and timing of d isclosure, not the general pr inciple. The Court also

acknowledged that disclosure may allow an accused to tai lor a defence

to anticipate the prosecution’s case, but held, nonetheless, that fairness

to the accused requires t hat the accused see t he evidence in advance.

This latter point is the most important in the Court’s reasoning. Al-

though policy arguments lead them to conclude that routine disclosure

is a desirable feature of the crimin al justice system, it is the Charte r,

and in particular the accused’s right under section 7 to ma ke full an-

4 R. v. Taillefer, 2003 SCC 70 at para. 59 (page reference s omitted) [Taill ef er].