Discovering the Opponent’s Case: Be Thorough, Be Relentless

Patrick J Ducharme
Patrick J Ducharme

 

Uncovering all the facts requires more than meetings with your own client and the client’s witnesses. Complete disclosure is paramount, although the issue of what can or should be disclosed in any given case is by no means uncontroversial.

The right of the accused to full disclosure by the Crown is an adjunct of the right to make full answer and defence. One important source of information, of course, is that information in the possession of the Crown. The term “in the possession of the Crown” is now understood to include all information in the possession or knowledge of the police. In 1991, Justice Sopinka, writing for a unanimous court in R v. Stinchcombe1, reviewed the general principles governing the duty of the Crown to make disclosure to the defence, especially in the context of indictable offences. He concluded that the Crown’s general obligation is to disclose all relevant information, even if the Crown does not propose to adduce it at trial. His Lordship also noted, however, that the Crown’s obligation is not absolute. It is subject to the Crown’s discretion, a discretion extending both to the withholding of information and to the timing of disclosure.

Stinchcombe thus appears to stand for the proposition that the Crown has an obligation, before the accused is called upon to elect a mode of trial or to plead3, to disclose to the defence all information, unless the information:

  • Is privileged, as, for example, in the case of informers whose identity the Crown is obliged to protect;
  • Is clearly irrelevant, the point being that the Crown ought to err on the side of inclusion; or
  • Would, if disclosed, impede completion of an investigation.4

When an issue arises with respect to the exercise of the Crown’s discretion, defence counsel should seek the intervention of the trial Judge at the earliest opportunity. “Failure to do so by counsel for the defence,” said Sopinka J., “will be an important factor in determining on appeal whether a new trial should be ordered.”5 The general principles enunciated in Stinchcombe6 were then elaborated upon in the January 1993 report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolutions chaired by the Honourable G. Arthur Martin.

According to the Advisory Committee, the trial Judge reviewing the Crown’s disclosure decision 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.

This is an excerpt from Patrick Ducharme’s book: 2018 Criminal Practice and Procedure.