Obligation de la Couronne de divulguer

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Principes généraux

The Crown must disclose all materials and information that is in its possession or control that is not clearly irrelevant, regardless of if the evidence is to be called at trial or is inculpatory or exculpatory.

The right to disclosures premised upon (1) the right to know the case to meet and (2) the right to make full answer in defence of an offence charged.

Materials in possession of the Crown are not the "property" of the Crown but rather is the "property of the public to be used to ensure that justice is done."

Purpose

The right to disclosure is founded in the principle of fair play between parties as well as the right to make full answer and defence.

When the Crown receives evidence it is not information that it holds in trust for the witness, rather it is "property of the public, to ensure that justice is done."

The right to disclosure is "among the most important and fundamental rights guaranteed to an accused in the criminal process."

The right is guaranteed by the right to full answer and defence under s. 7 of the Charter.

The Crown is not an "ordinary litigant". It's "undivided loyalty is to the proper administration of justice."

There is also a common law duty to provide "full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials."

The obligation also arises from "the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the 'property' of the Crown, but is rather 'the property of the public to be used to ensure that justice is done'"

This right is found codified under s. 650(3) and s. 802 of the Criminal Code which state:

s.650
[omis (1), (1.1), (1.2) and (2)]

To make defence

(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
R.S., 1985, c. C-46, s. 650; 1991, c. 43, s. 9; 1994, c. 44, s. 61; 1997, c. 18, s. 77; 2002, c. 13, s. 60; 2003, c. 21, s. 12.

– CCC (CanLII), (Jus.)

---

Right to make full answer and defence

802 (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.
[omis (2) and (3)]
R.S., c. C-34, s. 737.

– CCC (CanLII), (Jus.)

---

The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must "take reasonable step to inquire about ...relevant information."

The duty to make disclosure creates a duty upon the crown to obtain the disclosure from the police and, likewise, the police have a corresponding duty to provide disclosure to the crown.

These obligations are jointly held by both Crown and police.

The "Stinchcombe disclosure regime" only applies to "material relating to the accused’s case" that are "in the possession or control" of the Crown.

When confronted by a "pure fishing expedition", the Crown has no obligation to discover or disclose records.

Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to first-party disclosure.

The right does not distinguish between inadmissible and admissible evidence.

The Crown should advise a self-represented accused of the right to disclosure. The judge should not take a plea until satisfied that the accused has been notified.

Case-to-Meet Principle

The doctrine of the "case-to-meet" is a fundamental requirement of a fair trial. It is protected by the common law and the Constitution.

History

Prior to the 1991 release of the decision of R v Stinchcombe, the general duty to disclosed varied between jurisdictions. The Crown had some discretion to withhold evidence that was deemed uncredible.

First-Party Disclosure Principles and Obligations ("Stinchcombe")

The Martin Committee produced a report considering the decision. The report detailed the principles of the case, au p. 146:

1. The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction, but, rather, are the property of the public to ensure that justice is done.
2. The general principle is that all relevant information must be disclosed, whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information, whether it is inculpatory or exculpatory, and must produce all information which may assist the accused. If the information is of no use, then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion, which is reviewable by the trial judge.

Satisfaction of the obligation to disclosure must be read in context and does not have to be "perfect."

Identity of Crown

In the context of all first party or Stinchcombe disclosure issues, the term "Crown" refers only to the "prosecuting crown" and not all crown entities including police. All Crown entities other than the "prosecuting crown" are considered "third-parties".

Disclosure to Crown

The obligations upon the Crown are not reciprocal and there is no obligations upon the defence to disclose anything prior to trial.

Preservation of Evidence

Stinchcombe obligation also requires the Crown to preserve all relevant evidence.

At common law, there is a principle of “Omnia praesumuntur contra spoliatorem” that suggests that a party who destroys documents must rebut the presumption that the documents were unfavourable to their case.

Sufficiency for Election and Plea

Initial disclosure should be provided before the accused should be required to make election and plea. This is so that the accused can make an informed decision at "all fundamental steps that affect his rights in a crucial way." Many tactical factors can come into play that would influence the choice of manner of trial.

Delaying and Withholding Disclosure

The entitlement to disclosure "is neither absolute or unlimited."

Where disclosure is delayed or withheld is it the burden of the Crown to justify it.

Delayed Disclosure

The Crown has a limited discretion to delay disclosure in "rare circumstances" in order "to protect the integrity of an ongoing investigation." Or where it is necessary to protect the safety of certain witnesses.

The Crown also has discretion to determine the most effective manner in which to produce disclosure.

A great amount of deference should be given to the manner and timing of disclosure.

The defence's choice to have a preliminary inquiry before setting a matter for trial cannot be used as an excuse for delay of disclosure.

Withheld Disclosure

The most obvious reasons for withholding disclosure in where it is (1) "clearly irrelevant"; (2) the information was privileged; (3) disclosure of the information was governed by law; and (4) premature disclosure may result in harm to an individual or public interest.

Where any disclosure is withheld, the Crown must make it know that they are in possession of those records.

When the Obligations Exist

The Crown will only be subject to disclosure obligation where there is evidence in its possession or control and is sufficiently relevant. This is will only apply once the defence seeks to exercise its right to disclosure.

Information in possession of the government but not discovered in the course of the investigation is not governed by Stinchcombe. Stincombe will generally only apply to the "fruits of the investigation." The exception to this exists for records in the possession or control of Crown that is "obviously relevant" to the accused's case. The meaning of "obviously relevant" does not create a new standard of relevance, but applies the normal standard of relevance. However, the certainty to which it would go to full answer and defence is beyond merely "likely" and is something where the use if "easily seen or understood."

Defence Engaging Disclosure Obligations

The initial burden rests on the defence to invoke their right to disclosure. The right to disclosure is triggered once defence counsel requests it. After that the burden moves to Crown to disclose all Stinchcombe relevant materials.

The obligation will exist for all evidence for which there is a "reasonable possibility" that the evidence will used in making full answer and defence.

The duty to disclose is engaged once the accused requests information from the crown any time after the charge has been laid. If the defence fails to raise the issue and remains passive, they are less able to claim that non-disclosure affected trial fairness.

Duty of Diligence

The defence has an obligation to diligently pursue disclosure by actively seeking and pursuing disclosure once they become aware or ought to have been aware of it. This means the defence should bring any failure to disclose to the Court's attention at the earliest opportunity so that the judge can remedy any trial unfairness. The defence should review the disclosure and identify anything missing as soon as possible.

The defence cannot claim a lack of disclosure affected trial fairness when they remain passive a tactical decision or due to lack of diligence.

A failure to read the disclosure and discover defects cannot be used to support a finding that there was a Crown breach of the duty to disclose.

Fishing Expeditions

The defence should not engage in disclosure requests that amount to mere "fishing expeditions" as they tend to "undermine the good faith and candour which should govern the conduct of counsel."

Duty When Full Disclosure Not Provided

Where there is specific evidence that was not disclosed, the defence has the obligation to particularize the evidence that they are seeking.

The process is an "entwined in a mutual, continuous and reciprocal process" where both parties are obligated to cooperate in a reasonable and timely manner.

The duty of defence to cooperate flows from the obligation to avoid delay.

Burden

Once the right to disclosure has been invoked by the Defence the onus is upon the Crown to comply with the obligation. The Crown may refuse to disclose certain information, but has the burden of proving why full disclosure should not be applied.

Bases for Refusing Disclosure

The information will not be considered disclosure where it is:

1. Irrelevant
2. Not in the control of the Crown
3. Privileged
4. Barred by statute

Satisfying any one of these requirements will eliminate any disclosure obligations upon the Crown. The Crown may then refuse the request.

Standard of Proof

The grounds to disclose must be established on a balance of probabilities.

Crown Disputing Relevance

If the crown disputes the existence of any particular material, the applicant "must establish the basis that could enable to court to conclude that further material exists that is potentially relevant. The existence of the disputed material must be sufficiently identified, not only to reveal its nature but also to permit the court to conclude that it made meet the test required for prosecutorial disclosure."

The Crown must satisfy the court that the evidence sought is "clearly irrelevant."

Possession or Control

Just because a record is in the possession of a Crown entity, does not amount to possession or control.

The law cannot impose an obligation of the crown in relation to materials that "does not have or cannot obtain".

Where evidence is not in the control of the Crown it may be the subject of a common law third party records application, also known as an "O'Connor Application."

In an O'Connor application, the Defence must show that the evidence is "likely relevant."

The prosecuting Crown has an obligation to "make reasonable inquiries of other Crown entities and other third parties" of whether they may be in possession of relevant evidence.

Relevance

Not all information in possession of police must be disclosed. It must only be "relevant" evidence. The "threshold question in any instance of non-disclosure is whether the evidence was relevant"

The threshold of relevancy is quite low. The relevancy exists where there is "a reasonable possibility of the information being useful to the accused in making full answer and defence." Full answer and defence is engaged where the evidence can be used:

1. in meeting the Crown's case;
2. "advancing a defence";
3. "otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence".

The scope of relevancy is "broad" and will include materials that "may have only marginal value to the ultimate issues at trial." The Crown "must err on the side of inclusion" when deciding whether to include the materials in disclosure.

Relevance is not limited solely to inculpatory evidence nor only evidence that the Crown would adduce at trial. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the defence. All possible exculpatory evidence must be provided as well, however, this obligation does not extend to a duty to examine the exculpatory evidence.

Relevance can be related to the usefulness for defence as far as decisions on conducting the defence including whether to call evidence.

Relevant evidence is not limited to admissible evidence and can include that evidence which is not inadmissible at trial.

Limitations on Relevance

Relevancy however can be limited by the need for a "realistic standard of disclosure consistent with fundamental fairness." It must still permit the sustem to be "workable, affordable and expeditious". It should not be so broad as to include "anything that might conceivably be used in cross-examination." It is not meant to include "every scintilla of information" that may have utility to the defence.

There is some authority to suggest that when the relevancy only relates to a voir dire on admissibility of evidence, and not the trial itself, the burden is upon the accused.

Refusal to disclose clearly irrelevant disclosure

The burden is upon the Crown to prove that the information was "clearly irrelevant."

Refusal to disclose is reviewable by the trial judge.

Privilege

Privileged materials can take many forms:

1. protection of persons from harassment or injury
2. protect informer privilege
3. protect confidential investigative techniques
4. protection of confidential information while an investigation is ongoing
5. Litigation Privilege, Crown work-product privilege
6. statutory privilege such as under the Code and CEA

Any materials in control of the Crown that is claimed to be privileged cannot be compelled to disclose to either the defence or the court unless there are proper grounds. The McClure threshold test determines the grounds which requires the materials could raise a reasonable doubt of guilt. The threshold test requires:

1. there be no other source of the information sought;
2. the accused cannot raise a reasonable doubt in any other way.

Materials that "may put at risk the security and safety of persons who have provided prosecution with information" is protected by informer privilege.

Where the materials are privileged there is no need to address threshold relevance.

Burden

Where the defence seek disclosure of claimed privileged materials, "the accused has the burden of demonstrating why privilege is wrongly claimed."

Crown Counsel's Notes

Where the interview of Crown witnesses discloses new information to the Crown or police, any notes of counsel may be subject to disclosure.

Duration of the Obligation

The obligation to provide disclosure only begins once charges have been laid. There is no right prior to that.

The duty is engaged upon the request of the accused. It is continuous throughout the proceedings up to and including the trial. The Crown may object to the request on the basis that it is irrelevant, outside of their control, or otherwise privileged. The burden is on the Crown to justify the refusal to disclose.

The duty to disclose is ongoing and so any new information received must also be disclosed.

Once the Crown alleges that it has fulfilled the disclosure obligation it has no obligation to justify the "non disclosure of materials the existence of which it is unaware or denies." Unless the applicant is able to "establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant...."

After Verdict

Fresh Evidence

The right to disclosure may not extend to the into a conditional sentence breach hearing as there is less of a right to full answer and defence.

The obligation to disclose remains in effect through the appellate process. This obligation covers any materials in the possession of the crown that "may reasonably assist the appellant in the prosecution of his or her appeal, subject to any privilege or overriding third-party privacy interest."

There are some "reasonable parameters" around disclosure post-conviction. The court must be mindful that the "justice system does not become disproportionately overburdened" and cause delay in addressing the "more important issues."

Where in applicant seeks further disclosure on appeal to support a fresh evidence application, he must establish that:

• There is a connection between "the request for production and the fresh evidence proposed, or in other words the applicant must show that there is a reasonable possibility that the material sought could assist on the application for fresh evidence"
• There is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.

Timing of Disclosure

see also: Delayed Disclosure, above

Conceptually, Disclosure can be divided into three phases:

1. "Initial disclosure": evidence required before there can be an election of mode of trial;
2. "Intermediate disclosure": evidence required before a plea is entered; and
3. "Final disclosure": all Disclosure must be provided prior to trial.

It is not always necessary to provide full disclosure prior to a preliminary inquiry as long as full disclosure is made early enough before trial so as not to violate the right to full answer and defence. Where sufficient but incomplete evidence is disclosed, the defence are not entitled "to refuse to proceed to the next step or to set a date for trial."

Consequence of Late Disclosure

Where the late disclosure does not amount to a Charter breach that would require a stay of proceedings, the judge can consider a mistrial, a refusal to admit the evidence or an adjournment.

Witnesses Changing Evidence

Where the Crown learns of a recanting witness and provides immediate notice to the defence counsel on the night before the witness is to testify, it does not violate the right to full answer and defence.

Sufficiency of Existing Disclosure

It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate.

Experts

See Expert Evidence#Notice to Call Expert Evidence for details on sufficiency of disclosure summarizing the expert's evidence. A failure to provide sufficient disclosure in relation to the experts could result in a mistrial.

Duty to Inquire and Obtain Disclosure ("McNeil" Obligations)

In "appropriate cases", the Crown has an obligation "to make reasonable inquiries" with third-party state authorities who are believed to be in possession of threshold relevant materials and it would be "reasonably feasible to do so." This duty may also extend to making inquiries as to the existence of some fact.

For the purpose of first-party disclosure obligations, the "Crown" refers to the "prosecuting Crown" only.

It is not a valid argument to simply assert that the inquiry should be made because it is "easy."

Threshold relevance

Where the evidence is “obviously relevant” the Crown must disclose unprompted.

The test for McNeil record is “likely relevant” or “reasonably possible” relevance. This standard includes all materials that have a "reasonable possibility" to be useful in making full answer and defence.

Duty of Inquiry

Where an inquiry has failed the crown must notify the accused.

The duty is engaged once the prosecuting Crown becomes aware of the relevancy of certain records.

Example organizations

Relevant records held by Health Canada would be considered McNeil records that the Crown is obliged to seek out.

This may include the provincial securities commission who are known to have undertaken a investigation related to the prosecution.

Procedure For Enforcing Right

Where disclosure issues arise, the court should consider the issues as follows:

1. establish a violation of the right to disclosure;
2. demonstrate on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose;
3. discharge this burden by demonstrating that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process.

Jurisdiction

A preliminary inquiry judge has no jurisdiction to order the crown to provide disclosure.

Only the trial judge may make an order directing the Crown to disclose information in its control. Accordingly, a provincial court judge cannot order disclosure unless the mode of trial was by provincial court judge.

A preliminary inquiry judge has no power to order disclosure and is not a "court of competent jurisdiction" to make such an order.

Where defence believe initial disclosure is insufficient for making election, the justice may adjourn the election to allow the accused to seek remedy from a superior court.

Where a superior court is the trial court, it will be a "court of competent jurisdiction" under s. 24(1) of the Charter.

A superior court should generally defer motions until the matter is before the trial court rather than still with the inferior court.

In "unusual" or "exceptional" cases a superior court justice may exercise jurisdiction under s. 24(1) of the Charter to order disclosure while the matter is still before a preliminary inquiry judge. The limited jurisdiction to order disclosure does not affect the Crown obligation to provide timely disclosure.

Issues relating to the "manner of disclosure tend to fall within the category of exceptional cases."

Laporte Inventory

Where there is a dispute over whether there disclosure is complete, the defence may request a "Laporte Inventory", which itemizes all records in the possession of the Crown identifying which records have been disclosed and which records are being held back.

Crown Disclosure Decisions

Review of Decisions

It is the Crown's decision to determine "what material is properly subject to disclosure to the defence."

The decisions of Crown to disclosure certain information and not other is reviewable the trial judge.

In exceptional circumstances any superior court of criminal jurisdiction may review the disclosure under s. 24(1) of the Charter.

Remedy for improper disclosure decisions are "largely, but not exclusively, Charter based."

Form and Types of Disclosure

• Types of Disclosable Materials

Where the Obligation Does Not Exist

It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate or defend.

Vetting Disclosure

When documents are to be released for disclosure, the police and crown are permitted to vet the materials for the purpose of removing information that may not be disclosable. Types of information that can be validly redacted from the disclosure before going out to the defence include:

1. clearly irrelevant information
2. information tending to identify a confidential police source
3. police investigative techniques
4. advice that would be covered by solicitor-client privilege (either defence counsel or crown counsel)

See further details on Privilege section.

Restricting Access to Disclosure

• Limitations on Access to Disclosure

Breach of Disclosure Obligation

To engage Stinchcombe the Applicant accused has the burden of proving that there was a "reasonable possibility" that his right to make full answer and defence was impaired by the Crown's actions.

Not every failure to comply with Stinchcombe obligations will result in a Charter breach. There will no Charter breach if the failure "could not possibly affect the reliability of the result reached or the overall fairness of the trial process."

Where relevancy is in dispute, the burden rests on the accused to prove on a balance of probabilities that breach of the Charter right to disclosure has been violated.

Where a breach of the right to full disclosure is found it does not necessarily follow that the right to make full answer and defence was violated. Where the right to make full answer and defence is not implicated, the usual remedy is either an adjournment or order of production. In fact in general, where disclosure has not been given or is given late, the usual remedy is an adjournment.

Where there is a failure on the part of the Crown to meet the Stinchcombe obligations, there is an obligation on the part of the defence to raise the issue.

A failure to disclose will invoke s. 7 and 11(d) of the Charter.

To establish a breach of s. 7 due to non-disclosure does not require that the claimant show actual prejudice. However, a remedy under s. 24(1) to a breach to s. 7 or 11(d) of the Charter "will generally require a showing of actual prejudice to the accused's ability to make full answer and defence."

When considered in the civil context, not all breaches of disclosure are equivalent.

Defence Counsel Duties

Obligation to Raise Disclosure Issues

The accused should openly communicate with the court on any issues with disclosure. Likewise, the Crown is entitled to rely on those representations to determine whether disclosure has been completed.

Change of Counsel

When there is a change of counsel or a loss of counsel, previous counsel has a duty to facilitate the transfer disclosure to the accused or their new counsel.

See Also

• Disclosure (Cases)
• Production of Records for Sexual Offences
• Types of Disclosable Materials

External Links

• Lesage Code Report (2008)
• Report of the Criminal Justice Review Committee, Executive Review (1999)