You Can't Judge a Crown Brief by Its Cover: How Preliminary Inquiries Can Avoid Unnecessary Trials
| Author | David M. Cohn |
| Pages | 207-223 |
You
Can't
Judge
a
Crown Brief
by Its
Cover:
How
Preliminary Inquiries
Can
Avoid
Unnecessary Trials
DAVID
M.
COHN
2001
Victor Branco
was a
musician with
a
rock-and-roll band called Naked Planet
and a
part owner
of a
recording studio
in
Toronto.
He had no
criminal record.
He
came
to my
office
after
he had
been charged with
trafficking
cocaine
and
possession
for the
purpose
of
trafficking
cocaine.
He
vigorously
and
repeat-
edly
protested
his
innocence
while telling
me his
version
of the
events.
I
knew
it was
critical
to
obtain
full
disclosure
of the
prosecution's case.
In
any
criminal case,
an
accused person
has a
constitutional right
to
full
and
com-
plete disclosure. This document
is
prepared
by the
police
who
have investigat-
ed
and
arrested
the
accused.
The
police provide
the
disclosure
to the
Crown
prosecutor,
and the
Crown
prosecutor
in
turn
supplies
it to the
defence.
The
leading case
on the
constitutional right
to
disclosure
from
the
Supreme
Court
of
Canada
is
Stinchcombe
v. The
Queen. This case held
as
fol-
lows, which
I set out
here
from
portions
of the
case:
The
fruits
of a
police investigation which
are in the
possession
of
counsel
for the
Crown
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
...
There
is a
general duty
on the
part
of
the
Crown
to
disclose
all
material
it
proposes
to use at
trial
on a
charge
of an
indictable offence,
and
especially
all
evidence which
207
208
DAVID
COHN
may
assist
the
accused, even
if the
Crown
does
not
propose
to
adduce
it. The
general principle
is
that information
ought
not to be
withheld
if
there
is a
reasonable
possibility
that
the
withholding
of
information
will
impair
the
right
of the
accused
to
make
full
answer
and
defence.
The
obligation
to
disclose
will
be
triggered
by a
request
by or on
behalf
of the
accused
and may be
made
at any
time after
the
charge. Where
there
is no
statement
but
simply
notes
taken
by
an
investigator, then those notes should
be
produced.
If
notes
do not
exist, then
a
statement summarizing
the
anticipated evidence should
be
produced.
After
speaking with Branco
at my
office,
I
requested
and
ultimately
received
disclosure
from
the
Crown prosecutor. This document
is
variously
referred
to as
"the disclosure package," "the Crown brief,"
or
"the anticipated
evidence
of the
witnesses."
It
ought
to
contain
all the
relevant material
in the
possession
of the
Crown
and the
police-including
the
notes
of
each
of the
police
officers,
along with
any
reports made
out by the
police
officers
involved,
the
property reports that dealt with objects
and
items seized
on the
evening
in
question,
any
photographs taken,
and any
other materials pro-
duced
or
collected
by the
police either during
the
course
of the
investigation
or
afterwards.
I
requested
and
received
a
large volume
of
disclosure material.
According
to the
disclosure,
on
June
14,
1996, eight members
of a
Toronto
District Drug Squad, under
the
direction
of an
officer
in
charge, conducted
surveillance
on a
house located
at 33
Sheridan Avenue
in
Toronto.
The
drug
squad
had
reason
to
believe that
Mr.
Alan
Sutcliffe
was
involved
in
large-scale
drug
trafficking
because
of
previous information they
had
received.
The
fol-
lowing summary sets
out the
investigation
as
depicted
in
each
of the
eight
officers'
notes.
At
approximately 10:00 a.m.
on
Friday,
June
14,1996,
the
eight
officers
set
up
surveillance
in the
area
of
Dundas Street
and
Sheridan
Avenue
looking
for
Mr.
Sutcliffe.
At
approximately 12:00 noon,
the
officers
spotted
Mr.
Sutcliffe
with
a Mr.
Giurasco
in a
1987 Oldsmobile. That vehicle, driven
by Mr.
Sutcliffe,
arrived
at 33
Sheridan Avenue
at
about 12:00
noon.
Sutcliffe
and
Giurasco
joined
a
number
of
males
at a
picnic table
in
front
of the
house. According
to
the
police, included among
the
males
at the
picnic table
was
Victor Branco.
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