Right to Disclosure an Oxymoron!

The Accused’s Charter protected right to make full answer and defence and the right to full disclosure in support of this right has essentially been obliterated by Canada’s top court: R. v. Bjelland 2009 SCC 38.

http://scc.lexum.umontreal.ca/en/2009/2009scc38/2009scc38.html

Some defence lawyers have been arguing that disclosure rules enunciated in landmark decisions, such as R. v. Stinchcombe have only been honored in the breach. The Supreme Court has essentially ruled 4-3 in favor of honoring this right in precisely this manner.

Bjelland solidifies the proposition that the only real remedy for late disclosure -- even as late as on the day of trial -- is an adjournment. The only way a court can consider a remedy beyond an adjournment is if the accused demonstrates he or she has suffered prejudice, beyond mere delay, as a result of the late production of materials. I guess the majority in Bjelland has an incredibly short memory. For in R. v. Grant (decided just a week prior to this case), the Supreme Court stated things like, the conduct of police must be considered by society to be "above reproach". Doesn't the same principle apply to the conduct of Prosecution services? When it comes to disclosure, I would have thought it was reasonable for every practicing lawyer and judge in criminal justice to have a strong appreciation for Stinchcombe and the obligations it imposes. Today, the Crown can simply hand over new materials on the day of trial and the only meaningful remedy in most cases is to have the trial later.... Will our Supreme Court further denigrate the laws by placing the "burden of the rush" (see R. v. Antinello) on the accused in the future?

Additionally, even though an accused has the right to a preliminary inquiry pursuant to rules that Parliament has enacted in the Criminal Code of Canada, the Supreme Court has entrenched the proposition that there is no right to cross examine a witness, even a key witness at a preliminary inquiry. Indeed, this is true. However, Rothstein for the majority misapprehends this proposition as it was initially discussed by Martin J.A. in Ariv. Consider Martin J.A.'s remarks and the majority's interpretation on this point:

... We are not prepared to hold and, in our view, are not entitled to hold, that the failure to provide the opportunity to cross examine, even a key witness, prior to the giving of evidence by that witness at the trial, per se, contravenes the Charter, where full disclosure of the Crown’s case and of the witness’s evidence has been made. [Martin J.A. in Ariv]

I agree with the principle expressed by Martin J.A. There is no independent Charter right to cross examine a witness at a preliminary inquiry. [Rothstein in Bjelland]

Martin J.A.’s comments went beyond the simplistic misreading that Rothstein attributes. Martin J.A. said there is no right to cross-examine (which is true) where “full disclosure of the Crown’s case and the witness’s evidence has been made”.

In Bjelland's case, there was not full disclosure before the first day of trial, let alone the preliminary inquiry. To ignore this seminal part of Martin J.A.'s comment is to allow the prosecution carte blanche to hide disclosure up until the commencement of trial, which may render nugatory any steps to ascertain important information at earlier proceedings, such as preliminary hearings. Also, the accused's defence strategy may change dramatically if the information or evidence changes in even a small way. Failure to recognize the preliminary inquiry as an important part of the trial process is to trivialize this proceeding. Trial practioners understand this.

In Bjelland, there was no disclosure relative to the new witnesses before preliminary inquiry. The disclosure came on the day of trial. The trial judge did not accept the Crown’s explanation for the tardy disclosure. He found that the crown’s concerns for the safety of witnesses (which might provide a valid reason for delaying production of disclosure) were NOT well founded.

In any event, this is a troubling case. It represents a fastball strike-one against the accused’s right to disclosure as part of his or her right to make full answer and defence. It is a curveball strike-two against the reasonable expectation that the Crown be duly diligent in making timely production of such materials. It is a change-up strike-three against society’s expectation that our Charter rights are to be meaningful.

Shame shame shame....

David G. Chow
Criminal Defence Lawyer

www.calgarydefence.com