« Obligation de la Couronne de divulguer » : différence entre les versions

Voir également {{ibid1|Stinchcombe #1}}{{atL|1fsgp|20}} ("[w]hile the Crown must err on the side of inclusion, it need not produced what is clearly irrelevant")

{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0){{atps|41 to 42}} ( {{Tr}}« The Crown must disclose to the defence all information whether inculpatory or exculpatory under its control, unless the information is clearly irrelevant or subject to some privilege")<br>

{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (CSC)|[1997] 1 RCS 80}}{{perSCC-H|Sopinka J}} (5:4), (stated disclosure by the crown is "one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.")<br>

{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (CSC)|[1997] 1 RCS 80}}{{perSCC-H|Sopinka J}}{{atp|106}} ( {{Tr}}« The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. ")<br>

{{CanLIIRP|LAT|1npp1|1993 CanLII 3382 (ON CA)|84 CCC (3d) 90}}{{perONCA|Lacourcière JA}} (3:0) ( {{Tr}}« The Crown has a duty to obtain from the police -- and the police have a corresponding duty to provide to the Crown -- all relevant information and material concerning the case.")<br>

{{CanLIIRP|Vokey|fsxmg|1992 CanLII 7089 (NL CA)|72 CCC (3d) 97}}{{perNLCA|Goodridge CJ}} ( {{Tr}}« The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel.")<br>

( {{Tr}}« In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of his right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done.")

{{CanLIIRP|Dunn|27nmb|2009 CanLII 75397 (ON SC)|[2009] OJ No 5749}}{{perONSC|Boswell J}} ( {{Tr}}« Disclosure must be considered within this context. It does not have to be perfect, but it does have to be fundamentally fair and sufficient to allow an accused to exercise his or her constitutional right to make full answer and defence.")<br>

{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0), ( {{Tr}}« Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in {{supra1|Stinchcombe}}{{atp|343}} [SCR]{{atp|221}} [CRR]{{atp|14}} [CCC], the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process")<br>

{{CanLIIRP|NNM|1n6mj|2006 CanLII 14957 (ON CA)|209 CCC (3d) 436}}{{perONCA|Juriansz JA}} (3:0){{atL|1n6mj|37}} ( {{Tr}}« Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial.  .”")<br>

{{CanLIIRP|Kovacs-Tator|1j99g|2004 CanLII 42923 (ON CA)|192 CCC (3d) 91}}{{TheCourtONCA}} (3:0){{atL|1j99g|47}} (Ont. C.A.) ( {{Tr}}« the Crown is not obliged to disclose every last bit of evidence before a trial date is set")<br>

{{CanLIIRP|Lahiry|fntws|2011 ONSC 6780 (CanLII)|283 CCC (3d) 525}}{{perONSC|Code J}}{{atL|fntws|114}} ( {{Tr}}« It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.")<br>

{{CanLIIRP|Piaskowski|1r2nz|2007 MBQB 68 (CanLII)|213 Man R (2d) 283}}{{perMBQB|Sinclair J}}{{atL|1r2nz|84}} ( {{Tr}}« The Crown’s disclosure obligation requires that it must make known to an accused all relevant materials in its possession or under its control.")

La Couronne ne sera soumise à l'obligation de divulgation que lorsqu'elle possède ou contrôle des éléments de preuve {{Tr}}« et » suffisamment pertinents. Cela ne s'appliquera que lorsque la défense cherchera à exercer son droit à la divulgation.

{{CanLIIRx|Pascal|j6xcn|2020 ONCA 287 (CanLII)}}{{atL|j6xcn|106}} ( {{Tr}}« However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The police should also disclose to the prosecuting Crown any additional information that are “obviously relevant” to the accused’s case. This “obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.")<br>

R v Atwell, 2022 NSSC 304 at para 10 ( {{Tr}}« Mr. Dennis has a right to disclosure of possibly relevant information. However, it is a right that must be asserted...")<br>

{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (CSC)|[1991] 3 RCS 326}}{{perSCC-H|Sopinka J}} (7:0),{{atp|342}} ( {{Tr}}« The obligation to disclose will be triggered by a request by or on behalf of the accused.  Such a request may be made at any time after the charge.")<br>

{{CanLIIRP|O'Connor|1frdj|1995 CanLII 51 (CSC)|[1995] 4 RCS 411}}{{perSCC|Lamer CJ and Sopinka J}} (dissenting on other issues){{atL|1frdj|5}} ( {{Tr}}« The Crown's duty to disclose information in its possession is triggered when a request for disclosure is made by the accused")<br>

{{CanLIIRP|Anderson|g0hcq|2013 SKCA 92 (CanLII)|300 CCC (3d) 296}}{{perSKCA|Ottenbreit JA}} (3:0){{atL|g0hcq|17}} ( {{Tr}}« The obligation to disclose will be triggered by a request by or on behalf of the accused")<br>

{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0), ( {{Tr}}« The Crown's obligation to disclose is triggered by a request for disclosure from counsel for an accused.")<br>

{{supra1|Atwell}} at para 10 ( {{Tr}}« Once a request is made the onus shifts to the Crown to comply with the request")<Br>

{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (CSC)|[1995] 1 RCS 727}}{{perSCC-H|Sopinka J}} (9:0){{atsL|1frl0|26| à 27}} ( {{Tr}}« The Crown's disclosure obligations are triggered when there is a ''reasonable possibility'' the evidence will be useful to the accused in making full answer and defence.")<br>

{{CanLIIRP|Dixon|1fqvj|1998 CanLII 805 (CSC)|[1998] 1 RCS 244}}{{perSCC|Cory J}} (5:0){{atL|1fqvj|38}} ( {{Tr}}« Whether a new trial should be ordered on the basis that the Crown’s non‑disclosure rendered the trial process unfair involves a process of weighing and balancing.  If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial.  ...")</ref>

{{supra1|Dixon}}{{atL|1fqvj|37}} ( {{Tr}}« In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account.  A lack of due diligence is a significant factor in determining whether the Crown’s non‑disclosure affected the fairness of the trial process. ... The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure.  The very nature of the disclosure process makes it prone to human error and vulnerable to attack.  As officers of the court, defence counsel have an obligation to pursue disclosure diligently.  When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive.  Rather, they must diligently pursue disclosure.")</ref>  

{{CanLIIRx|Barbour|h4t69|2017 ABCA 231 (CanLII)}}{{TheCourt}}{{atL|h4t69|32}} ( {{Tr}}« Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing. The defence must 'exercise due diligence in actively seeking and pursuing Crown disclosure'")<br>

{{supra1|Barbour}}{{atL|h4t69|32}} ( {{Tr}}« If the Crown disclosure, or the facts of the case, make it apparent that third parties may have records that will assist in making answer and defence, the accused must act diligently in obtaining that information or in bringing an O’Connor application. The court will not be sympathetic where a tactical decision was made not to pursue known documents")<br>

{{supra1|Atwell}} at para 10 ( {{Tr}}« The onus is on the defence to particularize any further disclosure requests")<br>

{{{supra1|Eadie}}{{AtL|2cl9j|48}} ( {{Tr}}« It is clear, as a matter of law, the Crown and defence are entwined in a mutual, continuous and reciprocal process, wherein they each have a duty to reasonably and timely co-operate in the disclosure process.")

{{supra1|Chaplin}}{{atL|1frl0|25}} (The Crown "must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged")<br>  

{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0){{atps|41 to 42}} (information is relevant if "there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence.")<br>

{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (CSC)|[1993] 2 RCS 451}}{{perSCC-H|Sopinka J}} (5:0){{atp|467}} ( {{Tr}}« if it is of some use, it is relevant and should be disclosed ...This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in 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.")</ref>

Voir également {{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0) ( {{Tr}}« La divulgation initiale doit avoir lieu suffisamment avant que le L'accusé est appelé à choisir ou à plaider afin de lui permettre de prendre une décision éclairée quant au mode de procès et au plaidoyer approprié. Dans un monde parfait, la divulgation initiale serait également une divulgation complète.")</ref>

==Obligation d'enquêter et d'obtenir la divulgation (Obligations "McNeil")==

{{CanLIIRx|Woods|gg6pq|2015 ABPC 23 (CanLII)}}{{perABPC|Lepp J}}{{atL|gg6pq|31}} ( {{Tr}}« it is important to remember that the accused does not overcome the hurdle of providing evidence that the information sought actually exists and is relevant by showing only that the inquiry is easy to make.  If it were otherwise, “easy inquiries” would quickly become the equivalent of first party disclosure and the authorities would suffer death by a thousand cuts.")

{{supra1|McNeil}}{{atL|2254f|44}} ( {{Tr}}« As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.")

{{supra1|Rahey}}{{atL|1ftp6|16}} ( {{Tr}}« But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate.")

{{CanLIIRP|Mincovitch|g194d|1992 CanLII 7585 (ON SC)|74 CCC (3d) 282}}{{perONSC|A Campbell J}} ( {{Tr}}« The Supreme Court of Canada and the Court of Appeal have consistently preferred the trial court to resolve Charter applications because trial courts are best suited to resolve conflicting viva voce evidence and because of the great risk of delay and fragmentation of the trial process inherent in the likelihood of interlocutory appeals.")

{{supra1|Greganti}} ( {{Tr}}« When the defence is aware of a failure ... to disclose relevant material, there is an obligation to bring that failure to disclose to the attention of the Crown, and ... the Court.")</ref>

{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (CSC)|[1997] 1 RCS 80}}{{perSCC-H|Sopinka J}}{{atL|1fr3p|37}} ( {{Tr}}« The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.  Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice.")<br>

( {{Tr}}« The accused must communicate openly with the Court and Crown with respect to disclosure issues. The Court and the Crown are entitled to take assurances by the accused at face value. When the appellant represented that she had disclosure, and had spent significant amounts of time reviewing it, the Crown was entitled to assume that its obligation to disclose had been discharged.")

{{ibid1|Barbour}}{{atL|h4t69|32}} ( {{Tr}}« When there is a change of counsel, or the accused becomes self-represented, there is an obligation on counsel and the accused to ensure that the disclosure is passed along or otherwise obtained by the new counsel or the accused")<br>