As a Defendant to a Criminal Charge one has a right to full disclosure

As a Defendant to a Criminal Charge one has a right to full disclosure so that they may properly defend that charges agaisnt them.

THE GROUNDS FOR APPLICATION FOR DISCLOSURE ARE:

1.      Full disclosure of the requested documents and records are required so that the applicant may make full answer and defence to the charges against her.

2.     The documents and records requested will assist the applicant to prove that the charge brought against them are false.

3.     The  applicant is entitled to full disclosure pursuant to Sections 7, 10, 11 (d) 15 (1) and 24(1)(2) of the Canadian Charter of Rights and Freedom and sections 603, 605 and 625.1 of the Criminal Code of Canada; and all other charter rights mentioned in paragraph , including, but not limited to ss. 603, 605, and 625.1 of the Canadian Criminal Code.

4.     The applicant is entitled to full disclosure pursuant to the following case authorities that are binding law that the judges of the Provincial Court of required to follow and apply.  See Supreme Court of Canada – Decisions – R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66:

 R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66

Mr. McNeil sought production of all documents related to the arresting officer’s conduct, claiming he needed this information to assist him in preparing an application to introduce fresh evidence on his appeal from conviction.  The Court held that an O’Connor type procedure is only required in cases where third party records attract a reasonable expectation of privacy, and concluded that no expectation of privacy existed in respect of the criminal investigation files, subject to appropriate redactions and the resolution of any privilege claims, the court of Appeal ordered the third parties to produce the criminal investigation files in their possession related to the charges against the arresting officer to the federal Crown prosecuting the accused’s case.

CROWN COUNSEL’S DUTY TO INQUIRE  

In R. V. McNeil (48 -50)

(48)  As stated earlier, the suggestion that all state authorities constitute a single entity is untenable and unworkable.  In order to full its Stinchcombe disclosure obligation, the prosecuting Crown does not have to inquire of every department of the provincial government, every department of the federal government and every police force whether they are in possession of material relevant to the accused’s case.  However, this does not mean that, regardless of the circumstances, the Crown is simply a passive recipient of relevant information with no obligation of its own to seek out and obtain relevant material.

(49)  The Crown is not an ordinary litigant.  As a minister of justice, the Crown’s undivided loyality is to the proper administration of justice.  As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter.  Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfill its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.  Ryan J.A. in R. v. Arsenault (1994), 153 N.B.R. (2d) 81 (C.A.), aptly described the Crown’s obligation to make reasonable inquiries of other Crown agencies or departments.  He stated as follows:

            “When disclosure is demanded or requested, Crown counsel has a duty to make reasonable inquiries of other Crown agencies, departments that could reasonably be considered to be in possession of evidence.  Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation.  Relevancy cannot be left to be determined by the uninitiated.  If Crown counsel is denied access to an agency’s file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be best interests of the accused.  This applies to cases where the accused or defendant, as the case may be, is unrepresented.”

[50] The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.  As the amicus curiae rightly states:  “[t]he Crown and the defence are not adverse in interest in discovering the existence of an unreliable or unethical police officer” (factum, at para. 62).  Doherty J.A. made the point forcefully in R. v. Ahluwalia (2000), 138 O.A.C. 154, commenting on the Crown’s failure to inquire further when confronted with the perjury of its own witness as follows (at paras. 71-72):

            For reasons not shared with this court, the Crown does not appear to have regarded itself as under any obligation to get to the bottom of this matter....

1.                             The Crown has obligations to the administration of justice that do not burden other litigants.  Faced with its own witnesses perjury and the fact that the perjured evidence coincided with the incomplete disclosure that the Crown says it innocently pas... the defence, the Crown was obliged to take all reasonable steps to find out what had happened and to share the results of inquiries with the defence.  In my view, the Crown did not fulfill its obligations to the administration of justice by acknowledging incomplete disclosure discovered by the defence, and after making limited inquiries, profession neither a responsibility for incomplete disclosure not an ability to provide any explanation for it.  The Crown owed both the appellant and the court an explanation than it chose to provide.  Hence , by properly fulfilling its dual role as an advocate and officer of the court, Crown counsel can effectively bridge much of the gap between first party disclosure and third party production.

R. v. Stinchcombe, [1991] 3 S.C.R. 326, to consider the extent to which relevant police disciplinary records and third party criminal investigation files should form part of this “first party” disclosure package.  The Crown’s obligation to disclose all relevant information in its possession to an accused  is well established at common law and is now constitutionally entrenched in the right to full answer and defence under s. 7 of the Canadian Charter of Rights and Freedoms. The necessary collar to the Crown’s disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused.  For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party.  Rather, it acts on the same first party footing as the Crown and has a duty to participate in the disclosure process. Under Stinchcombe, the SCC decision provided an appropriate context within which to reiterate the respective obligations of the police and the Crown to disclose the fruits of the investigation.   The Crown’s first party disclosure obligation extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown. “Records” relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

R. v. O’Connor, [1995] 4 S.C.R. 411

An O’Connor application must lay a foundation for the relevance of the material sought, having regard to the issues in the case.  In large part, this is the reason why such applications should be brought before the judge seized with the trial.  Doing so allows production issues to be effectively disposed of by the judge and counsel who are sufficient appraised of the issues in the case.  The production applications can be heard prior to the commencement of the trial, and the judge, when appropriate to do so, may enlist the assistance of counsel in determining the relevance of a particular record for the purposes of production.

[33] “Likely relevant” under the common law O’Connor regime means that there is ”a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”  (O’Connor, at para. 22 (emphasis deleted)).  An “issue at trial” here includes not only material issues concerning the unfolding of the events which form the subject matter of the proceedings, but also “evidence relating to the credibility of witnesses and to the reliability of other evidence in the case” (O’Connor, at para. 22).  At this state of the proceedings, the court cannot insist on a demonstration of the precise manner in which the targeted documents could be used at trial.  The imposition of such a stringent threshold burden would put the accused, who has not seen the documents, in an impossible Catch-22 position.

The relevance threshold should not, and indeed cannot, be an onerous test to meet because accused persons cannot be required, as a condition to accessing information that may assist in making full answer and defence, “to demonstrate the specific use to which they might put information which they have not even seen” (O’Connor, at par. 25, quoting from R. v. Durette, [1994] 1 S.C.R. 469, at p. 499).

Balance the Interests at Play

In O’Connor, the Court provided the following list of factors for consideration in determining whether or not to order production to the accused:

(1)  the extent to which the record is necessary for the accused to make full answer and defence;

(2)  the probative of the record in question;

(3)  the nature and extent of the reasonable expectation of privacy vested in that record;

(4)  with production of the record would be premised upon any discriminatory belief or bias;

(5)  the potential prejudice to the complainant’s dignity, privacy or security of the person that would be occasioned by production of the record in question”......

uninitiated.  If Crown counsel is denied access to an agency’s file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be best interests of the accused.  This applies to cases where the accused or defendant, as the case may be, is unrepresented.”

CASE LAW

 R. v. O’Connor, [1995] 4 S.C.R. 411and R. v. McNeil, 2009 SCC 3, [2009]1 S.C.R.66,   R. v. Durette, [1994] 1 S.C.R. 469, at p. 499). R. v. Ahluwalia (2000), 138 O.A.C. 154; the leading case with respect to full disclosure is R. v. Stinchcombe [1991] 3 S.C.R. 326:

“Anyone accused of a criminal charge has the right to know the case against them and put forward a defence.”

In addition to being a principle of fundamental justice, this right is also protected by the right to a fair trial under section 11(d) of the Charter.

“Full answer and defence” encompasses a number of things, including the right to counsel (also see section (10) of the Charter, the right to examine witnesses, and most importantly, the right to full disclosure by the Crown.

The following comments from the Stinchcombe case are relevant to this Motion:

1.      The Crown has a legal duty to disclose all relevant information to the defence;

2.      The general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence.

6.     If the Crown is unable to provide the requested material then the Defendant requests that the charges against them be dismissed because to proceed against them, without the requested evidence, would tend to bring the administration of justice into disrepute and would be a violation of the right of the accused to make full answer and defence.