CRIM 330 Lecture Notes - Lecture 5: Fundamental Justice, Indictable Offence, Exculpatory Evidence

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IV. Crown Disclosure and the Preliminary Inquiry
1. Crown Disclosure
(a) Introduction
- The Crown is under an obligation to disclose to the accused all material information in
its possession
o Obligation exists regardless whether Crown intends to use the information at
trial
o Obligation also exists if it is helpful to the accused, not the Crown
(“exculpatory” evidence)
o Obligation is continuing one
- Theory: accused is entitled to make “full answer and defence” to any charges… and
therefore must have have access to all material information
o Further, recall that Crown’s job is not to get a conviction… it is to see that
justice is done
- No ”trial by ambush”
(b) Legal Basis
(i) Common Law
- Long standing common law duty on prosecutors to disclose… but practice varied
(ii) Criminal Code section 603
- After a preliminary inquiry at which the accused is ordered to stand trial, the accused is
entitled to inspect:
o The indictment
o Accused’s own statements
o Any evidence or exhibits tendered at the preliminary inquiry
(iii) Criminal Code Section 650(3)
650 (3) An accused is entitled, after the close of the case for the prosecution, to
make full answer and defence personally or by counsel.
- This provision applied to a jury trial in superior court (indictable offence)
- The entitlement to “make full answer and defence” has been interpreted as imposing on
the Crown an obligation to make full disclosure in this circumstance
(iv) Charter s. 7 and R v Stinchcombe (1991)(SCC)
- Prior to the Charter the legal basis for Crown disclosure was not completely clear
or certain
o There was a common law basis which was not clearly defined (“unsettled”)
o There was also some basis in statute (CCC) but only for indictable offences
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o So there was no clear and comprehensive requirement for Crown disclosure
- Charter s.7 made the obligation of Crown disclosure more comprehensive, and made it a
constitutional requirement:
7. Everyone has the right to life, liberty and security of the person and the right
not to be deprived thereof except in accordance with the principles of fundamental
justice
- The key concept here is “the principles of fundamental justice”
- In Stinchcombe the SCC ruled that the right to “make full answer and defence” is a
substantive principle of fundamental justice
- In order to “make full answer and defence” the accused must know the case against
them… and this necessitates full Crown disclosure
(c) Exception to Obligation of Disclosure
- There are 2 main exceptions to the Crown’s obligation to disclose:
o Irrelevant information needn’t be disclosed (the relevance exception)
o Privileged information needn’t be disclosed (the privilege exception)
- Relevance exception
o “relevance” is determined by reference to the accused… would the accused
find the information useful in making his/her defence?
o So if there is information in Crown’s possession which would in no way be
useful to the accused, then it is irrelevant and needn’t be disclosed
o Clearly, all information the Crown intends to use at trial will be relevant (since
the accused will want this information in order to prepare a defence)
- Privilege exception
o Certain information which is relevant, and would therefore otherwise have to
be disclosed, may be “privileged” so it can be withheld
o Privilege is based on some public policy reason for protecting information
(keeping it confidential)...
o Examples:
o Lawyer-client privilege
o Police informer privilege
o Note that the privilege may be waived by the person who has the privilege
(d) Timing of Disclosure
- Disclosure should be made before the accused makes an election or enters a plea
- It is a continuing obligation
(e) Means of Disclosure
(i) Particulars
- “Particulars” of the circumstances of the alleged offence
- Particulars will generally include
o Narrative of the facts alleged
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