R. v. Papageorgiou, 2003 CanLII 52155 (ON CA)
[7] The videotape in question was provided by the Crown to counsel for the respondent and was viewed by the respondent with his counsel prior to January 17, 2002. After he was discharged by the respondent, defence counsel gave the videotape back to the Crown. The Crown opposed the respondent's subsequent request for production of a copy of the videotape, but offered to afford the respondent an opportunity to view the videotape at the Crown's offices. The issue that arises on this appeal is whether, in those circumstances, the Crown's disclosure [page4] obligations concerning the complainant's videotaped statement were satisfied.
[8] The Crown's disclosure obligations in a criminal case are well-established. The Crown has a legal duty to disclose all relevant information to the defence. That duty, however, is not absolute. The Crown retains a discretion concerning the withholding of information and the timing and manner of disclosure, and regarding the relevance of information. The Crown's discretion in that connection is reviewable by the trial judge, who must be guided by the controlling principle that, unless non-disclosure is justified by the law of privilege, information should not be withheld from the defence if there is a reasonable possibility that the withholding will impair the right of an accused to make full answer and defence:
R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326, 18 C.R.R. (2d) 210, at paras. 11 and 19-21, per Sopinka J.
[9] In this case, the Crown did not fail to make disclosure of the videotape prior to trial. It did so prior to the discharge by the respondent of his trial counsel. The evidence established that the respondent reviewed the videotape, together with his counsel. Accordingly, as the Crown properly submits, the issue here is not one of non-disclosure but, rather, the adequacy of the form of further disclosure proposed by the Crown.
[10] The Crown submits that in sensitive cases involving allegations of sexual abuse and a self-represented accused, as in this case, the Crown's disclosure obligations are satisfied, and the public interest is fostered, by providing the self- represented accused with an opportunity to view the videotaped statement of a complainant at the Crown's office. On the facts of this case, we agree with the Crown for the following reasons.
[11] The Crown relies upon the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions (Toronto: Queen's Printer for Ontario, 1993), in which the Crown's disclosure obligations to an unrepresented accused are addressed. In that Report, the Advisory Committee recommends at p. 217:
9. (a) Defence counsel should not leave disclosure material in the unsupervised possession of an accused person.
(b) An unrepresented accused is entitled to the same disclosure as the represented accused. However, if there are reasonable grounds for concern that leaving disclosure material with the unrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counsel may provide disclosure by means of controlled and supervised, yet adequate and private, access to the disclosure materials. Incarcerated, unrepresented accused persons are entitled to adequate and private access [page5] to disclosure materials under the control and supervision of custodial authorities. Crown counsel shall inform the unrepresented accused, in writing, of the appropriate uses and limits upon the use of the disclosure materials.
(Emphasis added)
[12] In its commentary to those recommendations, the Advisory Committee states at pp. 218-19:
It is a basic principle, of course, that the unrepresented accused, like the accused who is represented, is entitled to full disclosure.
There is, however, one obvious difference between the represented and the unrepresented accused that has a direct and practical bearing on disclosure. Where an accused is unrepresented, there is no officer of the Court, acting for the defence, who can ensure that the disclosure material is used only to prepare to answer the charge, and not for some other improper purpose. . . .
Ultimately, defence counsel, as an officer of the Court, is expected to act responsibly. An unrepresented accused, however, is not required to comply with professional standards. Providing full disclosure to an unrepresented accused, when there is a reasonable basis for concern as outlined in paragraph 9(b), may, therefore, in the Committee's view, be accomplished in a somewhat different manner.
The Committee has recommended that, where there is a reasonable basis for concern that leaving disclosure materials with the unrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counsel should take such reasonable steps as are necessary to prevent these harms, by providing private access to disclosure materials (or copies thereof) in controlled conditions. . . .
Where there is a reasonable basis for concern, which leads to disclosure being made in a supervised setting as provided for in paragraph 9(b), the accused must none the less be provided with full disclosure. Further, the Committee wishes to emphasize that the supervision required in these circumstances cannot impair the right of the accused to prepare, in a reasonable manner, to meet the charge(s) he or she is facing. . . .
(Emphasis added)
[13] The Advisory Committee also recommends, at p. 222 of its Report, that Crown counsel should provide to the accused: "[A] reasonable opportunity, in private, to view and listen to the original or a copy of any audio or video recordings of any statements made by a potential witness other than the accused."
[14] The disclosure recommendations of the Advisory Committee properly recognize, and underscore, the harmful consequences that can flow from the improper use of disclosure materials and the importance of preventing what the Committee described at p. 218 of its Report as the risk of "grave interference with the administration of justice". The risk of harm from the improper use of disclosure materials is particularly pronounced, in our view, in cases involving sexual abuse. The Report of the [page6] Advisory Committee, in the context of such cases, reflects the important public policy concern that sensitive materials, including statements by complainants, not be exposed to misuse by unrepresented litigants during or after pending criminal proceedings. For that reason, the Committee endorsed the provision by the Crown to an unrepresented accused of private access to disclosure materials, including videotaped witness statements, under controlled circumstances.
[15] The approach urged by the Advisory Committee was adopted by the Crown in this case. Disclosure of the videotape was first provided to the respondent through his counsel. Thereafter, in accordance with the Report of the Advisory Committee, the Crown offered to provide the respondent with another opportunity to view the videotape under controlled conditions, that is, at the Crown's offices during business hours.
[16] The Crown's proposal for the provision of further access to the videotape was unobjectionable unless there was an evidentiary basis on the record before the summary conviction appeal court judge to conclude that there was a reasonable possibility that the respondent's right to make full answer and defence would be impaired thereby. No such evidence was adduced by the respondent in this case, nor was any challenge of the Crown's conduct brought by him under the Canadian Charter of Rights and Freedoms. Moreover, although expressly informed by the pre-trial judge of his ability to renew his production request before the trial judge, the respondent failed to do so.
[17] In our view, therefore, there was no breach of the Crown's disclosure obligations in this case concerning the complainant's videotaped statement. The statement had already been disclosed and, when the respondent became self represented, the proposed additional access to the videotape was in conformity with the recommendations of the Advisory Committee's Report. The position of the Crown was reasonable in the absence of any evidence of prejudice to the respondent. In any event, it was open to the summary conviction appeal court judge to order the production of the videotape if he believed that it was necessary to permit the respondent to properly present his appeal and to make full answer and defence. There was, however, no valid reason to allow the appeal.
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