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.     

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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.