Stinchcombe and Crown Disclosure of Criminal Evidence.

• Author: Bowal, Peter

The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.

R. v. Stinchcombe (1991) at para 12

Introduction

Rarely does a single prosecution so fundamentally alter legal practice in Canada as the Stinchcombe case. This criminal law decision from a unanimous Supreme Court of Canada does not involve the merits of guilt or innocence or the severity of sentencing. It deals only with the uncompromising legal duty of the Crown prosecutor to share all the evidence it has collected with the accused prior to the criminal trial. If the Crown does not do so, the charge may be stayed or a conviction overturned. This has resulted in delays, a massive expansion of prosecutorial resources and undoubtedly some people guilty of crimes walking free. This article tells the story of the landmark Stinchcombe case.

Facts

William (Bill) Stinchcombe, a Calgary lawyer, had utterly entangled legal representation and business venturing with his clients in the 1980s. He got into trouble when he could not repay money his clients had lent or invested with him. He was suspended as a lawyer by the Law Society of Alberta in September 1987. He was also charged with criminal breach of trust, theft and fraud for embezzling $1.6 million from a client.

His former secretary gave evidence at the preliminary inquiry for the Crown that tended to support Stinchcombe. When she later she gave statements to the police that contradicted and retracted her earlier evidence, the Crown decided not to use her statements in its case. It informed Stinchcombe about the statements but refused to share them. The secretary did not want to speak any more to Stinchcombe or his lawyer, although they could have called her as a witness. The trial went ahead in February 1989 without the secretary's evidence.

Stinchcombe was convicted and sentenced to nine years in prison. He spent almost one week in jail before seven friends helped raise the $150,000 bail to get him out.

Appeal to the Supreme Court of Canada

The Supreme Court of Canada concluded that, in criminal cases, the Crown has a constitutional duty to disclose to the defence all evidence in its possession and control that could be relevant to the case. This duty does not depend upon whether the Crown will call that evidence at...