Stuart O'Connell Criminal Law Blog

When is Disclosure Required Under Stinchcombe? It is commonplace that two different regimes govern disclosure in criminal cases: the Stinchcombe regime and the O’Connor third party records regime. The first party disclosure regime originated in Stinchcombe and was supplemented by duties imposed on the Crown and the investigating police in R. v. McNeil , 2009 SCC 3, [2009] 1 S.C.R. 66.  This requires disclosure of all relevant information upon request.   Where Crown refuses disclosure   If the Crown refuses disclosure, the Crown bears the burden of establishing that the information is privileged from disclosure or “clearly irrelevant”.   R. v. Gubbins , 2018 SCC 44, at para. 29. When does Stinchcombe Govern? Where either of the following two questions yields an affirmative answer, the first party Stinchombe disclosure regime applies [FN]: (1)           Is the information sought in th...

The right to full disclosure is just one component of the right to make full answer and defence. It does not follow that solely because the appellant’s right to full disclosure was breached, his/her Charter right to make full answer and defence was also compromised. To obtain a new trial on the basis of non-disclosure, the appellant must establish, on a balance of probabilities, that there is a reasonable possibility that the non-disclosure affected either (1) the outcome of the trial, or (2) the overall fairness of the trial process. STEP ONE       Establish Breach of the Right to Disclosure Where evidence proposed for admission on appeal has to do with information that was not disclosed prior to trial, an appellant must first establish that the undisclosed information meets the Stinchcombe standard and thus amounts to a breach of the appellant’s constitutional right to disclosure. R. v. Dixon , 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 , a...

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;...

Every accused has a constitutional right to hear Crown witnesses and have disclosure before testifying. As a matter of common sense, there may be considerable force to the suggestion that a person who gets full advance notice of the other side's evidence and testifies last is in a position to tailor his or her evidence to fit the disclosure. Notwithstanding, an accused’s constitutional right to disclosure cannot be allowed to become a trap. R. v. Marshall (2005), 2005 CanLII 30051 (ON CA), at para. 71. As a general rule, the Crown is prohibited from alleging that an accused person has tailored his evidence after receiving Crown disclosure or after hearing the Crown’s evidence at the preliminary inquiry or at trial, absent evidence of recent fabrication. Such allegations are improper and unfair.              R. v. Peavoy, 1997 CanLII 3028 (ON CA). Relatedly, it is also a general rule that the prosecutor's cros...

An accused has the constitutional right to disclosure of all material that could reasonably be of use in making full answer and defence of the case against her, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms . Because pre-trial custody may involve institutional rules that are inhospitable to accessing disclosure, as well as unpredictable events, such as lockdowns, an unrepresented accused person has little scope for exercising initiative in relation to disclosure. As a result, it falls to the Crown to take positive steps to ensure that the relevant materials make in into the hands of an in-custody accused.   What steps are required will depend on the circumstances of each case but may include the following: ·          a readiness hearing held reasonably in advance of the trial in order to alleviate or eliminate any inadequate disclosure; ·          personal servic...