The duty to disclose and the right to make full answer and defence

R. v. McKinnon, 2014 BCSC 2051 (CanLII)

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[59]        The Crown’s obligation to make full and timely disclosure is well settled. As set out in R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, and refined in subsequent cases, the Crown must disclose to the accused in a timely fashion all relevant information, whether inculpatory or exculpatory, subject to the discretion of the Crown to withhold from disclosure information which is privileged or clearly irrelevant. Relevance in this context is defined broadly, and includes information that can reasonably be used by the accused in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence, such as whether to call evidence: R v Egger, 1993 CanLII 98 (SCC), [1993] 2 SCR 451 at 467. Alternatively stated, the Crown’s obligation to disclose is triggered where there is a reasonable possibility of the information being useful to the accused in making full answer and defence: R v Dixon, 1998 CanLII 805 (SCC), [1998] 1 SCR 244 at para. 21.

[60]        Despite the late disclosure of emails and texts in this case, there has been a substantial amount of disclosure – most of it before the trial commenced and some throughout. The E-Navigate investigation, of which this case was a part, involved hundreds of officers from different police forces working under CFSEU. However, the issues which have emerged demonstrate that the Crown has construed relevance more narrowly than the defence.

[61]        The concept of relevance as broadly defined by the authorities is of limited assistance in defining relevance with any precision in a particular case. InR v Pickton, 2005 BCSC 1240 (CanLII), Williams J. noted that in cases where the investigative file contains a very large volume of information, the determination as to whether a particular piece or type of information is relevant can become highly subjective. I found his summary of some of the principles to be followed in that case to be of some assistance here (at para. 44) :

a.         Information that is purely administrative need not be disclosed.       Administrative information refers to the assignment of tasks and to       information relating to measures taken by investigators to organize      the investigation. …

b.         Investigative strategies and tactical information are presumptively not         disclosable absent a particularized claim to relevance. …

[62]        It bears noting that the Crown’s disclosure obligation applies to information in its possession (and by extension that of the police), and not to particular documents or a particular format. This issue was also addressed in Pickton (at para. 14) and in R v Pickton, 2005 BCSC 1258 (CanLII). In the latter case, the accused sought disclosure of timelines prepared by investigators in relation to certain topics such as key witnesses and victims. In dismissing the application, Williams J. stated as follows at para. 16:

The timelines in question are rooted in organization, analysis, and investigative strategy. They are comprised of information which the investigation has generated or discovered plus a component of organization or analysis. The defence entitlement to relevant information in the hands of the Crown extends to the underlying information from which the timelines derive. In my view, so long as the Crown has fully disclosed that information (assuming it is not subject to privilege), there is no basis upon which to find an obligation to disclose these organizational or analytical materials.

[63]        To similar effect are the comments of the Nova Scotia Court of Appeal in R v West, 2010 NSCA 16 (CanLII) at para. 209.

[64]        Where an accused demonstrates a reasonable possibility that undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has established an impairment of his constitutional right to disclosure: Dixon at para. 22. Section 7 is the Charter right engaged, which protects the right of an accused to make full answer and defence.

[65]        The Court in Dixon distinguished between a finding of violation of the right to disclosure during trial on the one hand, and on appeal from conviction on the other. Where the finding is made during trial, the appropriate remedy for the violation is an order for production or an adjournment (paras. 31, 33). Where, however, the finding of breach of disclosure is made after conviction, these remedies are no longer available. To justify an order for a new trial, the accused has the additional burden of demonstrating that the right to make full answer and defence was impaired as a result of the failure to disclose. This follows because the right to disclosure is but one component of the right to make full answer and defence, and it does not automatically follow that an infringement of the former will necessarily constitute an infringement of the latter. As the Court explained at paras. 23-24, there will be situations where non-disclosed information meeting the broad Stinchcombe threshold for relevance will have only marginal value to issues at trial. In this situation, the accused will have suffered no prejudice from the late disclosure.

[66]        To demonstrate an infringement of the right to make full answer and defence, the accused must show that there was a reasonable possibility that the failure to disclose affected the outcome of the trial or the overall fairness of the trial process. Obviously, trial outcome has no bearing where the late disclosure arises mid-trial, as is the case here. The Court in Dixon went on to state that even if the undisclosed information does not implicate the reliability of the trial outcome, its effect on the overall fairness of the trial must still be considered (at para. 36):

…Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non-disclosure on the overall fairness of the trial process must be considered at the second stage of the analysis. This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed. In short, the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but also to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.

[67]        The Court further explained that a “reasonable possibility” must not be entirely speculative; rather, it must be based on reasonably possible uses of the non-disclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the non-disclosure.

[68]        Crown and defence counsel in the present case all take the position that the test set out in Dixon should govern this application.

[69]        While Dixon approached the issue of non-disclosure primarily from the perspective of an appeal from conviction, I agree that the Court’s comments about the importance of the right to disclosure and trial fairness are helpful in considering whether there has been an infringement of the right to make full answer and defence. Absent the reasonable possibility test considered in the second stage analysis in Dixon, the jurisprudence provides little guidance to a trial judge faced with assessing the effect of late disclosure on the overall fairness of the trial process. I accept that this test is applicable here: to establish an impairment of the right to full answer and defence, the accused must show, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed sooner.

[70]        At paras. 38-39 of Dixon, Cory J. provided guidance as whether a new trial should be ordered on the basis that the Crown’s non-disclosure rendered the trial unfair. These comments were made in the context of due diligence, which I address below, but I consider the underlined passages also instructive in assessing the effect of non or late disclosure on the fairness of the trial process:

Whether a new trial should be ordered on the basis that the Crown’s non‑disclosure rendered the trial process unfair involves a process of weighing and balancing. If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial. See R. v. McAnespie, 1993 CanLII 50 (SCC), [1993] 4 S.C.R. 501, at pp. 502‑3.

In sum, all these factors must be appropriately balanced. In situations where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial…

[71]        The use of the word “materiality” here is important. As noted above, relevance for the purpose of disclosure is defined very broadly and does not equate with relevance justifying admissibility of evidence at trial. Materiality may or may not equate with relevance for admissibility purposes but it must be connected to realistic opportunities being lost to the defence. Materiality must be assessed in the context of the issues at trial.

[72]        Once an accused has established impairment of the right to make full answer and defence as a result of the Crown’s failure to disclose, he is entitled to a remedy under s. 24(1) of the Charter. On appeal, that remedy may be an order for a new trial. During a trial, there is a range of remedies, including, as a last resort, an order for a mistrial.