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Criminology (617)
CRIM 330 (7)
Chapter Disclosure and Discovery

CRIM 330 Chapter Disclosure and Discovery: CRIM 330 Chapter Disclosure and Discovery: CRIM330: DISCLOSURE AND DISCOVERY CASE BRIEFS

2 Pages

Course Code
CRIM 330
David Mac Alister

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DISCLOSURE + DISCOVERY R. v. Stinchcombe​ [1991] 3 S.C.R. 326, 8 C.R. (4th) 277, 68 C.C.C. (3d) 1 (S.C.C.) Court:​ ​SCC ​[Sopinka] Issue: ​Crown’s obligation to make disclosure to the defence Area of law: ​Disclosure + discovery, theft, fraud Facts:​ ​S is a lawyer charged with theft + fraud. One of the Crown’s witnesses gave evidence in prelim that supported the defence. The defence was denied access to statements made at trial. The crown decided not to use the statement, defence asked for it but the judge refused to provide it. The accused was convicted. Decision of court: ​Appeal dismissed, new trial ordered Reasons for decision:​ ​The Crown is under a duty to disclose all evidence. Tactical advantage during cross-examination must be sacrificed in the interests of fairness + ascertainment of the true facts of the case. R. v. O’Connor ​[1995] 4 S.C.R. 411, 44 C.R. (4th) 1, 103 C.C.C. (3d) 1 (S.C.C.) Court:​ ​SCC ​[Lamer, J; Sopinka, J; L’Heureux-Dube, J] Issue: ​Disclosure of medical records Area of law:​ ​Sexual assault, production of third party records, disclosure Facts: ​Court held that records of a complainant can be disclosed by third party if they meet two requirements. First, they are relevant to the case; second, the judge must review the records + decide whether to disclose them based on balancing the right to make full answer and defence + the right to privacy (s. 15). Claimed that the complainant “dreamt up” the records disclosed. Decision of court:​ ​Appeal dismissed. The trial judge must balance the privacy interests of complainants + third parties with the accused’s right to fair trial. Gvt amended the Criminal Code (Bill C-46) to set out a procedure for disclosure of personal records, including medical records, in all sexual offence cases. Stay of proceedings are only appropriate when prejudice to the accused’s right to make full answer and defence cannot be remedied or where irreparable prosecution were continued. Violation of s. 7 may result in s. 24(1) remedy or, disclosure and adjournment Ratio Decidendi: ​Factors that must be considered are: 1. Extent to which the record is necessary for the accused to make full answer + defence 2. Probative value of the record in question 3. Nature + extent of the reasonable expectation of privacy vested in that record 4. Whether production of the record would be premised upon any discriminatory belief or bias, and; 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” R. v. Mills
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