R v Anderson, 2013 SKCA 92 (CanLII)
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[64] As a practical matter, during a review of the Crown’s disclosure obligations prior to trial or during trial, a trial judge must look at a myriad of relevant factors touching on whether the Crown has fulfilled its obligation in good faith and in a timely manner. Without providing an exhaustive list, this could include looking at the essential elements of the offence, the complexity of the investigation, the volume and type of disclosure already provided, what the Crown refuses or is unable to provide, a preliminary assessment of how the further disclosure sought is relevant in the sense of assisting the accused, whether it is part of the case to meet, the interaction between the Crown and defence, the behaviour of the Crown and defence, the timing of disclosure and the nature of the defence requests for disclosure. The interplay of these factors is case specific.
mardi 17 novembre 2015
La communication d'un inventaire peut être suffisant pour que la Couronne puisse satisfaire à son obligation de divulgation
R. v. Laporte et al, 1993 CanLII 6773 (SK CA)
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A more practical way of conducting a judicial review of Crown discretion respecting disclosure is to require the Crown to produce a written, itemized inventory the information in its possession, identifying those items which it intends to disclose and those which it does not, and containing, in respect of the latter items, a statement in each case of the basis upon which the Crown proposes to withhold disclosure. Each item should be described as to its nature with sufficient detail that counsel will be enabled to make a reasoned decision as to whether to seek disclosure or not. If such an inventory is produced in consultation with defence counsel, it is likely that many items which might otherwise have been disputed will be agreed to. Such an inventory will also permit the reviewing judge to ascertain which items in dispute may be decided by him without production of the document or item of information in question, and those which require production in order to enable him to make a decision
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A more practical way of conducting a judicial review of Crown discretion respecting disclosure is to require the Crown to produce a written, itemized inventory the information in its possession, identifying those items which it intends to disclose and those which it does not, and containing, in respect of the latter items, a statement in each case of the basis upon which the Crown proposes to withhold disclosure. Each item should be described as to its nature with sufficient detail that counsel will be enabled to make a reasoned decision as to whether to seek disclosure or not. If such an inventory is produced in consultation with defence counsel, it is likely that many items which might otherwise have been disputed will be agreed to. Such an inventory will also permit the reviewing judge to ascertain which items in dispute may be decided by him without production of the document or item of information in question, and those which require production in order to enable him to make a decision
La divulgation parfaite n'existe pas dans un contexte d'enquête policière massive
R. v. Trang, 2002 ABQB 744 (CanLII)
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[509] Some courts have encouraged or ordered the Crown to inventory all material in the possession of the Crown as did Sherstobitoff J.A., speaking for the Saskatchewan Court of Appeal in Laporte at pp. 39 and 40. This is contrary to the Ontario Court of Appeal’s decision in Church of Scientology of Toronto.
[510] As the courts are all too well aware, the world we live in is not perfect. As I held in Trang (1091) “perfect disclosure” is too high a standard, particularly in the case of a massive investigation. Such a standard is likely impossible to achieve, notwithstanding the best efforts on the part of the police and Crown. It follows that an accused is not entitled to a perfect trial, but rather a fair trial, as McLachlin J., as she then was stated in O’Connor at 516, 517:
Discovery on criminal cases must always be a compromise. On the one hand stands the accused's right to a fair trial. On the other stands a variety of contrary considerations. One of these contrary considerations is the protection of privacy of third parties who find themselves, through no fault of their own, caught up in the criminal process. Another is the increase in the length and complexity of trials which exhaustive discovery proceedings may introduce. Both impact adversely and heavily on the public.
. . .
The key to achieving [the appropriate balance] lies in recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process[...] Perfection in justice is chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross‑examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system ‑‑ all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.
[511] Thus an accused in a criminal trial is entitled to full and complete disclosure, but not perfect disclosure which in my opinion is what the Applicants in this trial have sought and continue to seek. What the Applicants have in essence sought is a list identifying all information relating to the charges facing them which in the opinion of the Crown is either irrelevant or protected by privilege, so that the Applicants might request the Court to examine them with the hope and expectation that many of them will be ordered disclosed. That is what has taken place in this trial to a large extent (the discovery of the 36 Boxes aside). The effect has been that the course of this trial has substantially been focussed on disclosure to date, thereby bringing the proceedings to a crawl.
[512] Conscious of such a possibility and the effect thereof, the Supreme Court of Canada in Stinchcombe concluded that a fair, practical and workable balance would be to vest Crown prosecutors with the discretion, acting in good faith and in accordance with applicable jurisprudence, to determine which information is relevant, irrelevant and privileged, having regard to the obligations and duties placed upon Crown prosecutors in a criminal prosecution and the severe consequences flowing from a breach amounting to misconduct of such duties and obligations. It is only in this way that the criminal justice system can properly function. The process outlined in Chaplin ensures and anticipates that the Crown’s discretion is subject to review.—Until a better or alternative solution is crafted for massive cases, this is the process within which defence counsel and the Crown must function.
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[509] Some courts have encouraged or ordered the Crown to inventory all material in the possession of the Crown as did Sherstobitoff J.A., speaking for the Saskatchewan Court of Appeal in Laporte at pp. 39 and 40. This is contrary to the Ontario Court of Appeal’s decision in Church of Scientology of Toronto.
[510] As the courts are all too well aware, the world we live in is not perfect. As I held in Trang (1091) “perfect disclosure” is too high a standard, particularly in the case of a massive investigation. Such a standard is likely impossible to achieve, notwithstanding the best efforts on the part of the police and Crown. It follows that an accused is not entitled to a perfect trial, but rather a fair trial, as McLachlin J., as she then was stated in O’Connor at 516, 517:
Discovery on criminal cases must always be a compromise. On the one hand stands the accused's right to a fair trial. On the other stands a variety of contrary considerations. One of these contrary considerations is the protection of privacy of third parties who find themselves, through no fault of their own, caught up in the criminal process. Another is the increase in the length and complexity of trials which exhaustive discovery proceedings may introduce. Both impact adversely and heavily on the public.
. . .
The key to achieving [the appropriate balance] lies in recognition that the Canadian Charter of Rights and Freedoms guarantees not the fairest of all possible trials, but rather a trial which is fundamentally fair: R. v. Harrer, 1995 CanLII 70 (SCC), [1995] 3 S.C.R. 562. What constitutes a fair trial takes into account not only the perspective of the accused, but the practical limits of the system of justice and the lawful interests of others involved in the process[...] Perfection in justice is chimeric as perfection in any other social agency. What the law demands is not perfect justice, but fundamentally fair justice.
Perfect justice in the eyes of the accused might suggest that an accused person should be shown every scintilla of information which might possibly be useful to his defence. From the accused's perspective, the catalogue would include not only information touching on the events at issue, but anything that might conceivably be used in cross‑examination to discredit or shake a Crown witness. When other perspectives are considered, however, the picture changes. The need for a system of justice which is workable, affordable and expeditious; the danger of diverting the jury from the true issues; and the privacy interests of those who find themselves caught up in the justice system ‑‑ all these point to a more realistic standard of disclosure consistent with fundamental fairness. That, and nothing more, is what the law requires.
[511] Thus an accused in a criminal trial is entitled to full and complete disclosure, but not perfect disclosure which in my opinion is what the Applicants in this trial have sought and continue to seek. What the Applicants have in essence sought is a list identifying all information relating to the charges facing them which in the opinion of the Crown is either irrelevant or protected by privilege, so that the Applicants might request the Court to examine them with the hope and expectation that many of them will be ordered disclosed. That is what has taken place in this trial to a large extent (the discovery of the 36 Boxes aside). The effect has been that the course of this trial has substantially been focussed on disclosure to date, thereby bringing the proceedings to a crawl.
[512] Conscious of such a possibility and the effect thereof, the Supreme Court of Canada in Stinchcombe concluded that a fair, practical and workable balance would be to vest Crown prosecutors with the discretion, acting in good faith and in accordance with applicable jurisprudence, to determine which information is relevant, irrelevant and privileged, having regard to the obligations and duties placed upon Crown prosecutors in a criminal prosecution and the severe consequences flowing from a breach amounting to misconduct of such duties and obligations. It is only in this way that the criminal justice system can properly function. The process outlined in Chaplin ensures and anticipates that the Crown’s discretion is subject to review.—Until a better or alternative solution is crafted for massive cases, this is the process within which defence counsel and the Crown must function.
La divulgation de la preuve n'a pas à être parfaite
R. c. O'Connor, [1995] 4 RCS 411, 1995 CanLII 51 (CSC)
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194 Du point de vue de l'accusé, pour que la justice soit parfaite, il faudrait qu'il soit mis au courant de chaque éléments d'information susceptible d'être utile pour sa défense. La liste devrait alors comprendre non seulement les renseignements concernant les événements en cause mais tout ce qui, en théorie, pourrait servir en contre-interrogatoire à discréditer ou à ébranler un témoin à charge. Lorsqu'on tient compte d'autres points de vue, cependant, il en va autrement. La nécessité d'avoir un système de justice qui fonctionne et qui soit abordable et rapide, le danger de détourner le jury des vraies questions en litige et le droit à la protection de la vie privée de ceux qui se trouvent pris dans le système de justice sont tous des éléments qui convergent vers une norme de divulgation plus réaliste et compatible avec l'équité fondamentale. Voilà ce qu'exige la loi, et rien de plus.
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194 Du point de vue de l'accusé, pour que la justice soit parfaite, il faudrait qu'il soit mis au courant de chaque éléments d'information susceptible d'être utile pour sa défense. La liste devrait alors comprendre non seulement les renseignements concernant les événements en cause mais tout ce qui, en théorie, pourrait servir en contre-interrogatoire à discréditer ou à ébranler un témoin à charge. Lorsqu'on tient compte d'autres points de vue, cependant, il en va autrement. La nécessité d'avoir un système de justice qui fonctionne et qui soit abordable et rapide, le danger de détourner le jury des vraies questions en litige et le droit à la protection de la vie privée de ceux qui se trouvent pris dans le système de justice sont tous des éléments qui convergent vers une norme de divulgation plus réaliste et compatible avec l'équité fondamentale. Voilà ce qu'exige la loi, et rien de plus.
Comment traiter le privilège de l'enquête en cours eu égard à l'obligation de divulgation
R. v. Chan, 2002 ABQB 287 (CanLII)
[124] The applicants in the present case generally acknowledge that certain categories of public interest immunity are recognized at law. These include police investigative techniques, ongoing police investigations and safety of individuals. However, they did suggest that R. v. Mentuck, 2001 SCC 76 (CanLII), [2001] S.C.J. No. 73 (QL) [reported 158 C.C.C. (3d) 449], does not support a public interest in these matters. A similar argument was made before Binder J. in Trang #2 and I adopt his conclusion in this regard, which appears at para. 51 of his decision:
[51] I agree that Mentuck has some indirect bearing on public interest privilege generally, as it indicates the Supreme Court of Canada's view of certain conflicting public interests. However, it must be noted that the issue in Mentuck was whether information already disclosed in court and therefore part of the public record should be kept from the general public by way of publication ban. If it was possible for the Crown to claim privilege with respect to the information in that case, the privilege was waived. The lesson to be taken from Mentuck is that where the Crown pursues trial of charges where sensitive information will be revealed because it is relevant, the public interest in the transparency of the justice system will weigh heavily in the balance in terms of dissemination of the information through the media.Mentuck does not stand for the proposition that the Crown could never succeed in justifying a claim of privilege with respect to the types of information mentioned in that case.
[125] Binder J. in Trang concluded that the categories of investigative techniques, ongoing investigations and safety of individuals have been accorded common law privilege status, stating at para. 48:
[48] The Crown has asserted privilege status for investigative techniques, ongoing investigations, police intelligence, police internal communications, and information potentially affecting the safety of individuals. Defence counsel submits that in order for public interest privilege to justify non-disclosure this Court must find that the information, if disclosed, would cause damage to either national security or international relations. I cannot accept this position, since investigative techniques, ongoing investigations and safety of individuals have been accorded common law privilege status in the jurisprudence, as well as statutory privilege status in relation to editing of wire-tap applications before being disclosed to the accused: s. 187(4) of the Criminal Code (cited by the Crown in support of its position), and orders denying access to information used to obtain any warrant: s. 487.3.
[126] He concluded at para. 55:
[55] Investigative techniques, ongoing investigations and safety of individuals are well recognized common law privileges. To distinguish them from communication based privilege and avoid the confusion created by the use of communication privilege terminology, I would categorize them as "qualified privileges". In accordance with the jurisprudence, these privileges are subject to review and balancing by the Court of the public interest served by the privilege against the importance of the information to the right of an accused to make full answer and defence.
[127] I agree with Mr. Justice Binder that police investigative techniques, ongoing police investigations and safety of individuals are recognized categories of common law privilege or immunity which must be assessed on a case-by-case basis as to whether the public interest in question outweighs the right of the accused to make full answer and defence.
La procédure pour que la Couronne puisse invoquer le privilège du litige en cours (work product privilege)
R. v. Chan, 2002 ABQB 287 (CanLII)
[102] The following procedures will apply in the voir dire in terms of Crown's claims of work product privilege:
1. The Crown has the onus of establishing that the privilege applies. The Crown and defence may call evidence and make submissions as to whether the information is subject to work product privilege.
2. Where the Crown fails to establish the material is privileged, disclosure will be ordered.
3. If the Crown establishes the privilege, the onus shifts to the defence to establish waiver or that the information sought might possibly affect the outcome of the trial. This is a very broad relevance test. Both the defence and the Crown will be given the opportunity to adduce evidence and make submissions in this regard, with the defence going first.
4. If the Court finds the privilege was waived, disclosure will be ordered.
5. If the Court finds the privilege was not waived but the information sought might possibly affect the outcome of the trial, it will review the privileged communication;
6. After the Court reviews the information, the Crown and defence will be given the opportunity to make submissions on the factors to be taken into account in balancing the right of the applicants to make full answer and defence and the right to assert work product privilege.
7. Where the Court finds the right of the applicants to make full answer and defence is paramount in the circumstances, disclosure will be ordered.
8. Before disclosure is ordered in any of these circumstances, the Crown will be given an opportunity to determine whether it wishes to disclose the material and continue with the prosecution or stay the proceedings.
Le privilège de l'enquête en cours & l'obligation de divulgation
O'Neill v. Canada (Attorney General), 2006 CanLII 586 (ON SC)
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[18] “Ongoing investigation” privilege is recognized as a common law privilege or immunity belonging to a category of privileges that are subject, on a case by case basis, to review and balancing by the court of the public interest served by the privilege against the importance of the information to the right of the accused to make full answer and defence: Chan at paras.124-127. For the applicants, the balancing they request I perform in respect of the Redactions made on the basis of ongoing investigation privilege is between the public interest served by that privilege and the importance of their being able to establish as correctly as possible their “case to make”.
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[18] “Ongoing investigation” privilege is recognized as a common law privilege or immunity belonging to a category of privileges that are subject, on a case by case basis, to review and balancing by the court of the public interest served by the privilege against the importance of the information to the right of the accused to make full answer and defence: Chan at paras.124-127. For the applicants, the balancing they request I perform in respect of the Redactions made on the basis of ongoing investigation privilege is between the public interest served by that privilege and the importance of their being able to establish as correctly as possible their “case to make”.
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