La diligence de l'avocat de la défense vs l'obligation de divulgation du poursuivant

R. v Barbour, 2017 ABCA 231 (CanLII)

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[31]           It is not disputed that the Crown has an obligation to disclose all relevant material to the accused: R. v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326; World Bank Group v Wallace, 2016 SCC 15 (CanLII) at paras. 112-5, [2016] 1 SCR 207. The trial judge found that, in this prosecution, the Crown provided full disclosure on at least six occasions: to Mr. Der, Mr. Hepner, Mr. Dahlem, to the appellant when she was self- represented, to Mr. Cameron, to Mr. Thiessen, and again to the appellant at the commencement of the trial. This is not a situation of a failure to disclose.

[32]           An accused person is entitled to full disclosure, but an accused person also has some obligation to exercise reasonable diligence in making full answer and defence:

(a)   Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing. The defence must “exercise due diligence in actively seeking and pursuing Crown disclosure”: Dixon at para. 37; Stinchcombe at p. 341;

(b)   If the Crown disclosure, or the facts of the case, make it apparent that third parties may have records that will assist in making answer and defence, the accused must act diligently in obtaining that information or in bringing an O’Connor application. The court will not be sympathetic where a tactical decision was made not to pursue known documents: Dixon at paras. 37-8;

(c)   The Crown is entitled to make disclosure in electronic form, so long as the material is reasonably organized and indexed, using any reasonably available software configuration: R. v Oszenaris, 2008 NLCA 53 (CanLII) at paras. 19-20, 236 CCC (3d) 476 leave to appeal refused [2009] 1 SCR xii; R. v Beckett, 2014 BCSC 731 (CanLII) at paras. 7-8. The accused person receiving disclosure must act reasonably in obtaining access to the information. The appellant’s argument that as early as 2013 she had trouble accessing the information using her Mac computer does not demonstrate due diligence, and certainly was not evidence of a failure by the Crown to make disclosure by the time of trial in September 2015.

(d)   When there is a change of counsel, or the accused becomes self-represented, there is an obligation on counsel and the accused to ensure that the disclosure is passed along or otherwise obtained by the new counsel or the accused: R. v Dugan (1994), 149 AR 146 at para. 5 (CA).

(e)   The accused must communicate openly with the Court and Crown with respect to disclosure issues. The Court and the Crown are entitled to take assurances by the accused at face value. When the appellant represented that she had disclosure, and had spent significant amounts of time reviewing it, the Crown was entitled to assume that its obligation to disclose had been discharged.

The failure of the appellant and her counsel to read and retain the disclosure does not demonstrate any breach of the Crown’s obligation to disclose.