Duty of Crown to Disclose

R. v. Trang, 2002 ABQB 744 (CanLII)

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[390]         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. The duty of the Crown to disclose is triggered whenever there is a reasonable possibility of information being useful to an accused in making full answer and defence. This includes material which may have only marginal value to the ultimate issue at trial. Full answer and defence encompasses the right to meet the case presented by the prosecution, advance a case for the defence, and make informed decisions on procedural and other matters which affect the conduct of the defence:  Stinchcombe at 338-341; Egger at 466; Chaplin at 739-740. The threshold is quite low:  Dixon at 257. The duty to disclose is a continuing one and disclosure must be made when additional information is received:  Stinchcombe at 343;

[391]         The Crown must disclose statements obtained from persons who have provided relevant information to the authorities, whether or not they are proposed to be called as Crown witnesses. Where there is no statement but there are notes taken by an investigator, those notes should be produced. Where there are no notes then in addition to the name, address and occupation of the witness, all information in the possession of the prosecution relating to any relevant evidence that the person could give should be supplied:  Stinchcombe at 344-345;

[392]         The Crown is not required to disclose evidence that is beyond the control of the prosecution, clearly irrelevant, privileged or subject to a right of privacy: O’Connor; Trang (19); McKay at para. 36. Thus, the obligation to disclose is subject to the discretion of Crown counsel, which extends both to the withholding of information and to the timing of disclosure. The initial obligation to separate “the wheat from the chaff” rests with Crown counsel. There may also be situations in which early disclosure may impede completion of an investigation. Delayed disclosure on this account is not to be encouraged and should be rare. Completion of the investigation before proceeding with the prosecution of a charge or charges is very much within the control of the Crown. Nevertheless, it is not always possible to predict events which may require an investigation to be re-opened and the Crown must have some discretion to delay disclosure in these circumstances. The discretion of Crown counsel is, however, reviewable by the trial Judge. Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown’s discretion. On a review, the Crown must justify its refusal to disclose. Inasmuch as disclosure of all relevant information is a general rule, the Crown must bring itself within an exception to that rule:  Stinchcombe at 340;

[393]         Disclosure is a duty of the prosecution, which includes counsel, police and other state investigative agencies:  C.(M.H.). In wiretap and other cases, the Crown may rely on other agencies to make determinations as to relevance of information and provide the Crown with summaries of information gathered in the course of an investigation:  Siemens. The Crown has a duty to take reasonable steps to obtain from the police the information which must be disclosed to the defence and the police have the corresponding duty of providing the Crown with this information:  Greganti; Gagne; V. (W.J.); T. (L.A.); Trang (1091) at para. 19. The disclosure obligation requires that if the police become aware of relevant and material information, they are obliged to follow up in a timely way to obtain that information and to provide it to the Crown: J.W.S. at para. 11. Suppression of evidence by the police constitutes an abuse of process, for which the Crown must accept responsibility. This is especially so when the Crown has delegated the responsibility of disclosure preparation to the police: Gagne; L.A.T.; Greganti and authorities therein referred to therein;

[394]         Breach of the disclosure obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice:  Carosella at 107; Dixon at 257. Transgressions with respect to this duty constitute a very serious breach of legal ethics:  Stinchcombe at 339. In assessing Crown’s fulfilment of its disclosure obligation, one must look at the reasonableness of its performance; a standard of perfection, or even a guarantee of effective disclosure, whatever the circumstances, would reduce prosecutions to a game of chance:  Biscette.