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Solomon Friedman: Full disclosure rules prevent ‘trial by ambush’

(2012-06-22)

Full disclosure rules prevent ‘trial by ambush’

Solomon Friedman, The Ottawa Citizen

JUNE 25, 2012 

In the previous column on the role of the Crown Attorney, I discussed the unique position of the prosecutor in our legal system. Unlike defence counsel, who is professionally obligated to pursue every avenue in the defence of his or her client, the Crown Attorney serves a quasi-judicial role, ensuring that prosecutions are conducted in a fair, dispassionate and equitable manner.

The obligation to make full disclosure to the defence is at the heart of the Crown’s ethical and professional responsibilities. Unlike the accused person, who is afforded the absolute right to silence up to the moment he or she steps into the witness box, the Crown is not permitted to conduct “trial by ambush.”

In litigation, information is power. The right to disclosure recognizes that, despite the obvious inequities between the resources of the defence and the Crown, when it comes to information, both sides should be on a level playing field.

For decades now, following a landmark Supreme Court ruling in the early nineties, it has been well-established that the Crown has a broad obligation to make complete and ongoing disclosure to the defence.

As a general rule, the Crown is required to disclose all information that is in the control of the prosecution. This includes material that the Crown intends to rely on at trial, such as written statements of Crown witnesses, and material that is exclusively helpful to the defence, even if the Crown does not intend to present such evidence at trial.

Accordingly, the practice of not disclosing exculpatory material, a practice which has been harshly condemned by the courts and has been at the root of wrongful convictions in Canada and elsewhere, is no longer tolerated in our criminal justice system.

The Crown’s obligation to disclose all relevant material is wide-ranging. Unless material is “clearly irrelevant”, it must be provided to the defence.

In most criminal cases, the disclosure package consists of the following: a brief synopsis of the allegations, all notes and reports of the officers involved in the incident and written statements and statement summaries for any civilian witnesses. In more complex matters, such as white-collar offences or organized crime prosecutions, full disclosure can consist of hundreds of thousands or even millions of documents.

Importantly, the requirement to make disclosure is not a one-time obligation. Courts have recognized that there must be a continuous, ongoing process of providing relevant material to the defence. As information comes to the attention of the Crown Attorney, it must be provided to the defence in a timely fashion. This ongoing obligation lasts right up to the courtroom door and even through the conduct of the trial itself. The disclosure process does not end until the proceedings are at an end.

There are some important exceptions to the Crown’s disclosure obligation. First of all, it is limited to relevant material. Courts frown on “fishing expeditions” conducted by defence lawyers seeking clearly irrelevant information.

Secondly, the Crown is not permitted to disclose material that is protected by a legal privilege. In practice, this most commonly refers to information related to a confidential informant. Informant privilege is guarded jealously by our legal system. Therefore, the Crown cannot disclose any information that may tend to identify someone who has provided information to the authorities on a confidential basis. In addition, the Crown routinely redacts disclosure material to remove references to the private information of witnesses and complainants, such as dates of birth, telephone numbers and addresses.

The companion of the obligation to make disclosure is the obligation to preserve evidence. Courts have ruled that the disclosure obligation would be hollow indeed if the Crown and police did not need to preserve evidence. Where evidence in the control of the state is lost or destroyed, the defence’s right to full disclosure has been irreparably breached and this breach must be addressed by the court.

The right to disclosure can be breached in many ways. Aside from the obvious lost or destroyed evidence scenario, disclosure can be late or incomplete, or in some cases, the Crown may refuse to disclose certain material, claiming that it is irrelevant or covered by one of the exceptions to the disclosure obligations.

In such cases, the defence can apply to the court for disclosure, or in some circumstances for another, more extreme remedy.

The most common remedy for late or incomplete disclosure is an adjournment of proceedings. If material is only disclosed on the eve of trial, the defence will be granted an opportunity to review the material before commencing the hearing, even if this means delaying the proceedings.

However, there are some cases where an adjournment cannot cure the prejudice suffered by the defence. For example, where crucial evidence has been lost due to the negligence of the police, the defence may be deprived of its ability to make full answer and defence —- to meaningfully respond to the Crown’s case.

In such cases, the court may order a stay of proceedings — essentially halting the prosecution as a result of the inability of the Crown to make complete disclosure. Stays of proceedings are relatively rare, however. Courts have maintained that such a remedy is reserved for extreme situations only; in the words of the Supreme Court, stays are granted only “in the clearest of cases.”

Nonetheless, the right to disclosure is a constitutional right. And constitutional rights may be rendered meaningless without robust constitutional remedies.

Solomon Friedman is a criminal defence lawyer with Edelson Clifford D’Angelo LLP. He can be reached at solomon@edelsonlaw.ca or 613-237-2290. Follow Solomon on Twitter at twitter.com/firearmslaw.

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