[8] The Crown has a duty to make disclosure of all relevant information to an accused: R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326. This duty is inherent in the right of the accused under s.7 of the Charter to make full answer and defence. Relevance is defined as “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence”: R. v. McNeil, 2009 SCC 3 at para.17.
[9] Disclosure it not absolute. Non-disclosure is justified by the law of privilege and a judge may review the decision of the Crown to withhold or delay production of information due to the security or safety of witnesses or persons who have supplied information to the investigation: Stinchcombe, supra at para.22. The trial judge, on a review, should be guided by the principle that information should not be withheld if there is a reasonable possibility that the withholding of information will impair the accused’s right to make full answer and defence, unless the non-disclosure is justified by the law of privilege: see R. v. Downey, 2018 ABQB 915 at paras.12-18.
[10] Mr. Dennis has a right to disclosure of possibly relevant information. However, it is a right that must be asserted: see R. v. Eadie, 2010 ONCJ 403 at para.42. As stated in Stinchcombe, supra at para.28, “The obligation to disclose will be triggered by a request by or on behalf of the accused.” Once a request is made the onus shifts to the Crown to comply with the request: Eadie at para.44. The onus is on the defence to particularize any further disclosure requests: ibid.
[11] The onus on the defence to particularize, for the Crown, further disclosure requests is one that must be carried out in a timely way: Eadie, supra at para.47, citing R. v. Michelutti [2009] O.J. No. 2839 (SCJ). The Crown and defence are “entwined in a mutual, continuous and reciprocal process,” in which they each have a duty to cooperate in a reasonable and timely manner in the disclosure process: Eadie, supra at para.48. The purpose of the duty is not simply to provide information and documents for the narrow purpose of physical production in order to allow full answer and defence. Rather, it is directly related to conducting trials within a reasonable time: Eadie, supra at para.49. Although the accused does not have a direct duty to bring himself to trial, this is modified somewhat by the duty to co-operate in the disclosure process, which mutual co-operation should enhance trials within a reasonable time and avoid adjournments and delay: ibid.
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