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The Disclosure Rules: A Restatement

  • March 12, 2016
  • Clayton Rice, Q.C.

What are the basic principles of law that come into play when the Crown fails to provide disclosure before election or plea in docket court?

In a case pending before the Provincial Court of Alberta at Edmonton my client refused to enter election for mode of trial on a charge of second degree murder. There is substantial outstanding disclosure involving the wiretap component of an extra-jurisdictional police investigation. During a succession of docket court appearances the Crown Attorney insisted that my client had received sufficient disclosure to enable him to enter an election. And a Provincial Court Judge insisted on knowing how the defence could sustain prejudice since a date for preliminary inquiry would be well down the road and Crown counsel was asserting that the outstanding disclosure would be made during the interim.

These fundamental misunderstandings of the Crown’s disclosure obligations caused me to reconsider the law and commence a disclosure motion in the Court of Queen’s Bench that is ongoing. So, let’s begin with the rationale that underlies the disclosure rules.

The starting point is always the landmark ruling of the Supreme Court of Canada in R v Stinchcombe, [1991] 3 SCR 326 that was decided against the background of a high profile case involving a wrongful conviction for murder. Justice John Sopinka, for a unanimous court, said this at para. 17:

“…[T]here is no valid practical reason to support the position of the opponents of a broad duty of disclosure. Apart from the practical advantages to which I have referred, there is the overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7 of the Canadian Charter of Rights and Freedoms as one of the principles of fundamental justice. (See Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505, at p. 1514.) The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. Recent events have demonstrated that the erosion of this right due to non-disclosure was an important factor in the conviction and incarceration of an innocent person. In the Royal Commission on the Donald Marshall, Jr., Prosecution. Vol. 1: Findings and Recommendations (1989) (the “Marshall Commission Report“), the Commissioners found that prior inconsistent statements were not disclosed to the defence. This was an important contributing factor in the miscarriage of justice which occurred and led the Commission to state that ‘anything less than complete disclosure by the Crown falls short of decency and fair play’ (Vol. 1 at p. 238).”

Against that backdrop I will reduce the basics to eight rules. The case law, of course, is legion with nuances of narrow application in unique circumstances. But the basic rules may be succinctly stated. Here they are.

1. General

There is a general duty on the Crown to disclose all information that is not clearly irrelevant or privileged. The duty extends to material that it will use at trial as well as information that may assist the defence even if the Crown will not use it. This obligation is subject to the discretion of Crown counsel regarding the withholding of information and the timing of disclosure. Crown counsel has a duty to respect the rules of privilege (e.g., informant privilege). There may also be situations where early disclosure may impede an ongoing investigation. Delayed disclosure to protect an ongoing investigation should be rare. (Stinchcombe, at paras. 19-20)

2. Timing

The Crown’s duty to disclose is triggered by a request made by a defendant or his counsel. Disclosure should occur before a defendant is called upon to elect the mode of trial or to plead. These are crucial steps which a defendant must take that affect trial rights in a fundamental way. It is of great assistance to know the strengths and weaknesses in the state’s case before committing on these issues. This reasoning does not only apply to election or plea but to any situation in which a defendant is expected to take a step that affects or may affect his or her right to make full answer and defence. The duty is a continuing one. The Crown has an ongoing obligation to disclose new information as it emerges. (R v Egger, [1993] 2 SCR 451 per Sopinka J., at para. 21; Stinchcombe, at para. 28)

3. Review

The discretion of the Crown is reviewable by a trial judge on motion by the defence. The burden is on the Crown to justify its refusal. Inasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception. The trial judge should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of a defendant to make full answer and defence. The absolute withholding of information can only be justified on the basis of a legal privilege that exempts the information from disclosure. In cases where a trial judge is not assigned, such as pending preliminary inquiry, a review may be initiated in the superior court of criminal jurisdiction. Defence counsel must bring to the attention of the court at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. (Stinchcombe, at paras. 21-4; R v Taillefer; R v Duguay, [2003] 3 SCR 307 per LeBel J., at paras. 59-61; R v Laporte (1993), 84 CCC (3d) 343 per Sherstobitoff J.A., at paras. 7-11)

4. Relevancy

One measure of the relevance of information in the Crown’s hands is its usefulness to the defence. It is relevant if it is of some use and should be disclosed. This requires a determination by the reviewing judge that production of the information can reasonably be used by the defence either in (a) meeting the case for the Crown (b) advancing a defence or (c) making a decision that may affect the conduct of the defence. The threshold is therefore low. A broad range of material, both inculpatory and exculpatory, is subject to disclosure. The Crown’s duty is therefore triggered whenever there is a reasonable possibility of the information being useful in making full answer and defence. The Crown must err on the side of inclusion. (Egger, at para. 20; R v Chaplin, [1995] 1 SCR 727 per Sopinka J., at paras. 20-3; R v Dixon, [1998] 1 SCR 244 per Cory J., at paras. 20-2)

5. Charter Motions

Meeting the case for the Crown includes applications under the Charter of Rights. This arises in my practice most often in the review of wiretap authorizations and search warrants under Charter ss. 8 and 24. The rules mandate disclosure of all material from the police investigative file in order that its contents may be compared to the information underpinning an affiant’s reasonable grounds for belief (and investigative necessity in wiretap cases) as set out in an affidavit or information to obtain. The disclosure of information from the police investigative file may also provide the defence with possible third-party avenues of inquiry. The duty of the police to provide disclosure to the Crown is a corollary of the Crown’s duty to disclose to the defendant. Disclosure includes information relevant to the credibility of a witness. (R v Pires; R v Lising, [2005] 3 SCR 343 per Charron J., at paras. 25-26; R v Caines, 2011 ABQB 82 per Greckol J., at paras. 391-426); R v Lee, 2007 ABQB 454 per Sulyma J., at paras. 48-53; R v McNeil, [2009] 1 SCR 66 per Charron J., at para. 14)

6. Prejudice

The duty on the Crown to disclose gives rises to a corresponding constitutional right of a defendant to disclosure of all information that meets the Stinchcombe threshold. It has been well settled for almost twenty years that breach of that obligation is a breach of a defendant’s constitutional rights under Charter s. 7 without the requirement of an additional showing of prejudice. Prejudice is only relevant at the remedy stage. (Dixon, at para. 22; R v Carosella, [1997] 1 SCR 80 per Sopinka J., at paras. 39-40)

7. Sufficient Disclosure

The Crown may not hold back disclosure on the basis that the defence has been given sufficient information to allow it to make an informed decision about election and plea. The authorities do not support the concept of sufficient disclosure on a time-delayed or issue-delayed basis. That is sometimes called staged disclosure. The standard is full disclosure because what is sufficient cannot be measured in the absence of seeing the totality. That which is withheld may be sufficient to alter the plea or the election as to mode of trial. The plea has serious consequences in the long term both as to liability and penalty. A guilty plea may be vacated based upon subsequent disclosure that would have impacted the plea. In the short term, the plea and election have immediate financial consequences for the defendant. Restricting disclosure to what the Crown considers to be sufficient for certain purposes at a particular time is not countenanced by Stinchcombe. (R v Alcantara, 2010 ABQB 616 per Greckol J., at paras. 109-12; R v Paryniuk, [2003] O.J. No. 1051 (Ont. S.C.J.) per Low J., at paras. 59-62; R v Chan, 2003 ABQB 759 per Sulyma J., at paras. 486-9)

8. Remedy

A stay of proceedings is appropriate only in the clearest of cases where prejudice to a defendant’s right to make full answer and defence cannot be remedied or where irreparable prejudice would be caused to the integrity of the justice system. It is a last resort remedy to be taken when other acceptable avenues of protecting a defendant’s right to full answer and defence are exhausted. Exclusion of evidence is only available where (a) late disclosure renders the trial unfair and the unfairness cannot be remedied through an adjournment and disclosure order or (b) exclusion is necessary to maintain the integrity of the justice system. However, in cases where election is for trial in the superior court, the preliminary inquiry serves the ancillary purpose of providing discovery of the Crown’s case and, where a defendant is in pretrial custody, an adjournment that prolongs the custody before trial may compromise the integrity of the justice system. (Taillefer; Duguay, at para. 117; R v Bjelland, [2009] 2 SCR 651 per Rothstein J., at para. 24)

As I mentioned above, the case reports are replete with rulings that consider the nuances of the disclosure regime in specific circumstances. And, in some cases, the entering of election and plea may be warranted before disclosure is provided or complete for tactical reasons. But these eight rules are the sign posts that should otherwise guide the docket court practice of criminal defence lawyers in Alberta.

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