Defence Counsel Receives Disclosure Subject to an Implied Undertaking


Defence counsel or an accused receives disclosure subject to an implied undertaking:  without direction from the court, no use may be made of disclosure outside of the context of the criminal proceedings.

R. v. Mossaddad, 2017 ONSC 5520, at para. 39.

The Crown has an obligation to disclose all relevant information in its possession relating to the investigation against an accused. This information is know as disclosure (or the Stinchcombe disclosure package) and is provided to allow the accused to make full answer and defence to the allegation that he/she has committed an offence.    

Criminal investigative files may contain highly sensitive material including:  outlines of unproven allegations; statements of complainants or witnesses — at times concerning very personal matters; personal addresses and phone numbers; photographs; medical reports; bank statements; search warrant information; surveillance reports; communications intercepted by wiretap; scientific evidence including DNA information; criminal records, etc. 

R. v. McNeil, 2009 SCC 3, [2009] 1 S.C.R. 66, at para. 14.

The holding in R. v. Mossaddad is sensible in that there are many interests which require protection in a criminal trial, which include not only the interests of the accused person but also the privacy and safety interests of victims, witnesses and the need to protect the integrity of the administration of justice. Some of these interests will be unnecessarily imperiled if an accused is able to disseminate Crown disclosure for a purpose other than to make full answer and defence.

At the same time, dissemination of part of the disclosure package by the accused may, at times, be in the public interest [FN].  As the Supreme Court of Canada instructed in R. v. Stinchcombe, [1991] 3 S.C.R. 326: "the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done".

In my opinion R. v. Mossadad finds the right balance:  it protects the interests of third parties while leaving available the opportunity for those who wish to obtain disclosure information to do so by way of an application to the court. It is a court that should control how much, if any, information is to be used for a collateral purpose. Our courts are in the best position to consider the nature of the public interest in having the information released more widely, as well as to protect the various interests that may be affected in doing so.



 [FN] Though it was created within the context of investigating a Highway Traffic Act and not a criminal offence, police dash cam footage of Toronto police officers insulting a girl with Down's Syndrome in November of 2016 is an example of information that came to the attention of the accused through the disclosure package.  It is clear that the release of such information by the accused (the girl's mother) for a purpose other than its use in the provincial offence proceedings is in the public interest. For more on this story go to www.globalnews.ca/news/3507194/toronto-police-officers-allegedly-mock-girl-with-down-syndrome-during-traffic-stop/



 Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca

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