The Legal Framework of Disclosure

R v Anderson, 2013 SKCA 92 (CanLII)

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[57]   The Crown’s obligation to provide disclosure as set forth in R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, was recently reiterated and summarized by Charron J., at para. 18 of R. v. McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66:

18        While the Stinchcombe automatic disclosure obligation is not absolute, it admits of few exceptions. Unless the information is clearly irrelevant, privileged, or its disclosure is otherwise governed by law, the Crown must disclose to the accused all material in its possession. The Crown retains discretion as to the manner and timing of disclosure where the circumstances are such that disclosure in the usual course may result in harm to anyone or prejudice to the public interest. The Crown’s exercise of discretion in fulfilling its obligation to disclose is reviewable by a court.

[58]   The obligation to disclose is not absolute.  For example, in R. v. Egger, 1993 CanLII 98 (SCC), [1993] 2 S.C.R. 451, Sopinka J. stated at p. 466:

            …  The Crown’s disclosure obligation is subject to a discretion, the burden of justifying the exercise of which lies on the Crown, to withhold information which is clearly irrelevant or the nondisclosure of which is required by the rules of privilege, or to delay the disclosure of information out of the necessity to protect witnesses or complete an investigation: Stinchcombe, supra, at pp. 335-36, 339-40. As was said in Stinchcombe, supra, at p. 340, “[i]nasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule”.

[59]   The meaning of “relevance” has been recently addressed by the Court in R. v. West, 2010 NSCA 16 (CanLII), 288 N.S.R. (2d) 293:

160      What is relevant in any given case is determined by a wide variety of factors, principally by the facts in issue. The facts in issue are set by the charges before the court and the defences being raised by the accused (see R. v. Arp, 1998 CanLII 769 (SCC), [1998] 3 S.C.R. 339, [1998] S.C.J. No. 82 at para. 38). In R. v. Watson, 1996 CanLII 4008 (ON CA), [1996] O.J. No. 2695 (Ont. C.A.) para. 30-35, Doherty J.A. wrote of the requisite approach to assessing relevance as follows:

30 ... Relevance must be assessed in the context of the entire case and the respective positions taken by the Crown and the defence: R. v. Sims (1994), 1994 CanLII 1298 (BC CA), 87 C.C.C. (3d) 402 (B.C.C.A.) at pp. 420-427, 28 C.R. (4th) 231 (B.C.C.A.). There is no rule limiting prior misconduct by the deceased to cases in which self-defence is raised.

31 In R. v. Corbett, 1988 CanLII 80 (SCC), [1988] 1 S.C.R. 670 at p. 714, 41 C.C.C. (3d) 385 at p. 416, La Forest J. (in dissent) described the significance of relevance to our law of evidence:

All relevant evidence is admissible, subject to a discretion to exclude matters that may unduly prejudice, mislead or confuse the trier of fact, take up too much time, or that should otherwise be excluded on clear grounds of law or policy.

32 In explaining what he meant by relevance, La Forest J. referred to Morris v. R., 1983 CanLII 28 (SCC), [1983] 2 S.C.R. 190, 7 C.C.C. (3d) 97, and then said at p. 715 S.C.R., pp. 417-418 C.C.C.:

It should be noted that this passage [from R. v. Morris ] followed a general discussion of the concept of relevance in which the court affirmed that no minimum probative value is required for evidence to be deemed relevant. The court made it clear that relevance does not involve considerations of sufficiency of probative value. ... A cardinal principle of our law of evidence, then, is that any matter that has any tendency, as a matter of logic and human experience, to prove a fact in issue, is admissible in evidence, subject, of course, to the overriding judicial discretion to exclude such matter for the practical and policy reasons already identified.

33 While La Forest J. dissented in the result in Corbett, his discussion of the significance and meaning of relevance is consistent with previous and subsequent majority decisions of the Supreme Court of Canada: Morris v. R., supra, per McIntyre J., at pp. 191-92 S.C.R., pp. 98-99 C.C.C., per Lamer J. (dissenting in the result) at pp. 200-01 S.C.R., pp. 105-06 C.C.C.; R. v. Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 S.C.R. 577 at pp. 609-12, 66 C.C.C. (3d) 321 at pp. 389-92. Relevance as explained in these authorities requires a determination of whether as a matter of human experience and logic the existence of “Fact A” makes the existence or non-existence of “Fact B” more probable than it would be without the existence of “Fact A”. If it does then “Fact A” is relevant to “Fact B”. As long as “Fact B” is itself a material fact in issue or is relevant to a material fact in issue in the litigation then “Fact A” is relevant and prima facie admissible.

[60]   In Egger, at p. 467, the Court tied relevance to usefulness to the defence:

            … One measure of the relevance of information in the Crown’s hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed—Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either 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, for example, whether to call evidence.

[61]   However, an accused does not have a right to adduce irrelevant evidence (R. v. Darrach, 2000 SCC 46 (CanLII),[2000] 2 S.C.R. 443, para. 37).

[62]   The Crown has a continuing obligation to disclose.  In R. v. Girimonte (1997), 1997 CanLII 1866 (ON CA), 121 C.C.C. (3d) 33 (Ont. C.A.), the Court said this about the timing of Crown disclosure:

17        The Crown’s obligation to disclose is triggered by a request for disclosure from counsel for an accused. Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in Stinchcombe, supra, at p. 14, the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process. There will also be rare cases in which the Crown can properly delay disclosure until an investigation is completed. If full disclosure cannot be made when initial disclosure is provided, the Crown’s obligation to disclose is an ongoing one and requires that disclosure be made as it becomes available and be completed as soon as is reasonably possible. In any event, an accused will not be compelled to elect or plead if the accused has not received sufficient disclosure to allow the accused to make an informed decision.

[63]   Whether the Crown has discharged its duty to disclose may be reviewed by the Court.  This process was explained by Sopinka J. at pp. 340 of Stinchcombe:

            The trial judge on a review should be guided by the general principle that information ought not to be withheld if there is a reasonable possibility that the withholding of information will impair the right of the accused to make full answer and defence, unless the non-disclosure is justified by the law of privilege. The trial judge might also, in certain circumstances, conclude that the recognition of an existing privilege does not constitute a reasonable limit on the constitutional right to make full answer and defence and thus require disclosure in spite of the law of privilege. The trial judge may also review the decision of the Crown to withhold or delay production of information by reason of concern for the security or safety of witnesses or persons who have supplied information to the investigation. In such circumstances, while much leeway must be accorded to the exercise of the discretion of the counsel for the Crown with respect to the manner and timing of the disclosure, the absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure.

The trial judge may also review the Crown’s exercise of discretion as to relevance and interference with the investigation to ensure that the right to make full answer and defence is not violated. …