Steering Committee on Justice Efficiencies and Access to the Justice System – Report on Disclosure in Criminal Cases
June 2011

Appendix B

Stinchcombe and Its Legacy

The fruits of the investigation which are in the hands of the Crown are not the property of the Crown for use in securing a conviction, but, rather, are the property of the public to ensure that justice is done.Footnote 101

The Stinchcombe decision reveals the Supreme Court, relatively early in the life of the Charter, laying a foundation of principles and values to guide the future development of the law of disclosure. As Justice Sopinka recognized,Footnote 102 1) there were many details remaining to be worked out in concrete situations; 2) it was neither possible nor appropriate to attempt to lay down precise rules; and 3) although the basic principles of disclosure would apply across the country, the details would likely vary from province to province and even within a province by reason of special local conditions and practices.

The basic principles governing the disclosure obligations on the prosecution as established in Stinchcombe and its progenyFootnote 103 can be summarized as follows:

  1. Failure by the prosecution to give full disclosure to the defence infringes on the right of the accused to make full answer and defence, a principle of fundamental justice enshrined in section 7 of the Charter.Footnote 104
  2. The fact it is the police and not the prosecutor that have relevant information does not relieve the prosecutor of his or her disclosure obligation.
  3. All relevant information must be disclosed, whether or not the prosecution intends to introduce it in evidence.
  4. All inculpatory or exculpatory evidence and all information that may assist the accused must be disclosed.
  5. The prosecution’s duty to disclose relevant evidence includes the obligation to preserve relevant evidence.
  6. For disclosure purposes, relevance is determined by reference to the potential use of material by the defence. Material is relevant for disclosure purposes if there is a reasonable possibility (the likely relevance threshold) that it may be useful to the accused in making full answer and defence.
  7. The right to disclosure is a right to know what relevant information is in the possession of the police and Crown. It is not necessarily a right to have copies of the material.
  8. The Crown’s duty to disclose is engaged by a request from the accused for disclosure.Footnote 105
  9. The Crown’s obligation is a continuing one that begins before the accused elects mode of trial and continues thereafter.
  10. The accused will not be compelled to elect or plead without sufficient disclosure to make an informed decision.
  11. Where the accused is unrepresented by counsel, Crown counsel should advise the accused of his or her right to disclosure, and a plea should not be taken unless the trial judge is satisfied that this has been done.
  12. Crown counsel has discretion, reviewable by the trial judge, to delay disclosure to protect the identity of informers and the safety of witnesses or others who have assisted the authorities.
  13. The Crown has discretion to delay disclosure in order to complete an investigation but delayed disclosure for this reason should be rare.
  14. The Crown may refuse disclosureFootnote 106 on the ground that the material sought is:
    1. beyond the control of the Crown;Footnote 107
    2. not relevant; or
    3. privileged.Footnote 108
  15. The court must apply the likely relevance threshold to screen applications to prevent the defence from engaging in speculative, and time consuming requests for production.Footnote 109
  16. The manner of disclosure is a matter of Crown discretion.Footnote 110
  17. Where the accused demonstrates on appeal a reasonable possibility that undisclosed information could have been used in meeting the prosecution case, advancing a defence, or making a decision that could have affected the conduct of the defence, the accused has established that his Charter right to disclosure has been impaired.
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