R. v. Darwish, 2010 ONCA 124 (CanLII)
[29] An accused does not have a free-standing constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, [2009] O.J. No. 2123, 2009 ONCA 432 (CanLII), at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in and of themselves constitute a denial of the right to make full answer and defence.
[30] An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill J. put it in R. v. West, [2001] O.J. No. 3406, [2001] O.T.C. 711 (S.C.J.), at para. 75, the defence cannot, through a disguised-disclosure demand, "conscript the police to undertake investigatory work for the accused"; see, also, R. v. Schmidt, 2001 BCCA 3 (CanLII), [2001] B.C.J. No. 3, 151 C.C.C. (3d) 74 (C.A.), at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution and not with the defence.
[31] Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences. The Crown's disclosure obligation was recently described in R. v. McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66, [2009] S.C.J. No. 3. The court, at para. 22, reiterated the Crown's obligation, subject to very limited exceptions, to make timely disclosure to an accused of all relevant material "in the possession or control of the Crown". The Crown's disclosure obligation will also require the Crown, in response to defence requests, to take reasonable steps to inquire about and obtain relevant information in the possession of some third parties. Charron J. described this aspect of the disclosure obligation, at para. 49: The Crown is not an ordinary litigant. As a minister of justice, the Crown's undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfil its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.
[32] I see a vast difference between requiring the Crown to take reasonable steps to assist an accused in obtaining disclosure of [page588] relevant material in the possession of a third party and requiring the Crown to conduct investigations that may assist the defence. The former recognizes an accused's right to relevant information and the practical advantage that the Crown may have over the defence when it comes to obtaining that information from some third parties. The latter would require the prosecution to effectively surrender control of the investigation to the defence or ultimately face a stay of the criminal charges.
[33] The disclosure obligation rests on 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": R. v. Stinchcombe, 1991 CanLII 45 (SCC),[1991] 3 S.C.R. 326, [1991] S.C.J. No. 83, at p. 333 S.C.R. This rationale fully justifies the broad disclosure obligations imposed on the prosecution with respect to material that is in existence. It does not justify an approach that would permit the defence to dictate the course of the investigation to prosecutorial authorities.
[34] The distinction between the right to the disclosure of the fruits of an investigation and a right to demand an additional investigation is made clear in R. v. Daley, [2008] B.C.J. No. 1341, 2008 BCCA 257 (CanLII). In Daley, the complainant in a sexual assault case had been examined following the assault by a nurse. The results of that examination were placed in a "sexual assault kit". The police preserved the kit, but did not attempt to have the samples it contained forensically examined. Disclosure of the kit was made to the defence. The defence argued that, as the samples were potentially exculpatory, the Crown was obliged not only to disclose their existence to the defence, but also to have the necessary forensic tests performed.
[35] The British Columbia Court of Appeal unanimously rejected this submission, stating, at para. 15: The Crown's obligation was to disclose what could be inculpatory or exculpatory evidence. It did so. Once the appellant had knowledge of the existence of the kit, it was open to him to have it examined and he could easily have done so. He evidently chose not to. (Citations omitted)
[36] The trial judge relies on R. v. Brown, [1998] O.J. No. 4682, 164 C.R.R. (2d) 1 (Gen. Div.) as jurisprudential support for the existence of a "duty to investigate". Brown is a very different case than the present one and does not bear the broad reading given to it by the trial judge. In Brown, the accused brought numerous pre-trial Charter motions alleging misconduct by various individuals engaged in the prosecution of the accused. Trafford J. recognized that unless the Crown directed [page589] an investigation into these allegations, the court would not be in a position to effectively and efficiently assess the merits underlying them (at paras. 38-39). He held, at para. 40, that once the court determined that there was potential merit to the defence allegations, "the Crown Attorney had a duty to request the investigation by the police and the police had a duty to conduct one".
[37] I have no difficulty with the duty to investigate described by Trafford J. in the context of the allegations put forward in Brown. This court has recognized much the same obligation in R. v. Ahluwalia, 2000 CanLII 17011 (ON CA), [2000] O.J. No. 4544, 149 C.C.C. (3d) 193 (C.A.), at para. 72. I would not, however, characterize the obligation described in Brown as a component of the right to make full answer and defence. Rather, it is a duty owed by the prosecution to the court and to the administration of justice.
[38] No matter how one characterizes the obligation recognized in Brown, that obligation stops well-short of imposing a duty on the prosecution to conduct any investigation that on a reasonable view could assist an accused in advancing a substantive defence. The duty to investigate described in Brown is triggered by material and potentially meritorious allegations of state misconduct from which Charter relief is sought, made in the context of an ongoing criminal proceeding.
[39] An interpretation of the right to make full answer and defence that imposes a duty on the prosecution to investigate possible defences is also irreconcilable with the basic features of the criminal justice system. No doubt, the Crown has obligations to an accused and to the administration of justice that go beyond those normally imposed on opposing counsel in litigation. However, the criminal justice system remains essentially an accusatorial and adversarial one. The prosecution, which includes the Crown and the police, is charged with the responsibility of investigating and prosecuting crime in the public interest. To do so, the prosecution must investigate allegations, lay charges and prove those charges in a criminal proceeding. To properly perform these functions, the prosecution must decide on the nature and scope of an investigation. The accused is entitled to the product of that investigation, but is not entitled to dictate the nature or scope of that investigation.
[40] On the trial judge's interpretation of the right to make full answer and defence, any accused could effectively assume de facto control of a criminal investigation being conducted against them by pointing to some avenue of investigation that might reasonably assist in advancing a defence. On this approach, the prosecution would be obliged to direct its resources to that [page590] avenue of investigation or face the consequences of a constitutional violation of the right to make full answer and defence.
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