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DISCLOSURE OF THE PROSECUTION CASE

The Supreme Court of Canada has ruled that under the Canadian Charter of Rights and Freedoms, the prosecution is required by law to disclose all information in connection with the case against the accused.  This includes, but is not limited to, all of the police reports, witness statements, audio or video media, etc..  In R. v. Stinchcombe, [1991] 3 SCR 326  Clii  the Supreme Court ruled:


                 Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead.  Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory.  All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses.  Where statements are not in existence, other information such as notes should be produced.  If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied.

The defense will usually not enter a plea to the charge until all disclosure obligations have been fulfilled by the prosecution.  This is because fully informed decisions about how to proceed cannot be made without all of the important information.

 

In the McNeil case, the Supreme Court clarified the duties of the police in regards to disclosure:


...

The Crown’s obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime.  Under Stinchcombe, the Crown’s first party disclosure obligation extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown.  A question then arises as to whether the “Crown” for disclosure purposes encompasses other state authorities.  While the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process.  The necessary corollary to the Crown’s disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused.  For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party.  Rather, it acts on the same first party footing as the Crown.  Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the first party disclosure package due to the Crown from police, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.  [14-15] [22-23]

....



CAUTION


You should review the disclosure package very carefully.  It has been my experience that the first package often does not include audio or video material.  That will often come later from the prosecutor's office.


However, in some cases the police neglect to provide it to the prosecution.  If you think the maternal will be of assistance to you, a formal demand should be made for it and you should ideally have it before a plea is entered to the charge.


It has been my experience that police officers often neglect to include audio recordings that are taken on their personal recording devices.  They also often neglect to include audio or video media taken from the patrol car devices.


With the advent of computerization, the disclosure package often only includes the typewritten entries of reports of the officers.  If the package does not include the actual notes made by the officer, make a formal demand for the handwritten notes to make sure they are the same as the typed version.


Similarly, in many cases statements of witnesses are written and then a typed version is produced.  Always request the handwritten versions for comparison purposes.

Jim O'Neil, LL.B.

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