The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession 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.
R v. Stinchcombe (1991) at para 12
Introduction
The last Famous Cases column narrated the story around the 1991 decision of the Supreme Court of Canada in R. v. Stinchcombe. In this article, we set out some of the main content of the Stinchcombe Crown duty of disclosure principles. Readers who interact with the criminal or regulatory process will be interested to learn about their constitutional right to Crown disclosure.
Purpose of Crown Disclosure
Prior to 1991, Crown disclosure was made on an ad hoc voluntary basis. Stinchcombe is a landmark Supreme Court of Canada ruling that mandated it in every criminal prosecution, forcing police and prosecutors to share all information with the accused person, not just the evidence the Crown will use in court. Crown disclosure facilitates the accused’s right to know the case to meet and to be able to make full answer and defence to any offence charged. It is the principle of fair play. The right to disclosure is one of the most important rights guaranteed to an accused in the criminal process. Disclosure facilitates agreement on facts in issue and, where appropriate, early guilty pleas. It arises from the common law, the Charter (section 7) and is codified in the Criminal Code.
Accused persons have no equivalent disclosure obligation. They can maintain a purely secretive and adversarial role with regard to their defence.
Not an Absolute Right
Most constitutional rights are not absolute. Likewise, the right to Crown disclosure is neither absolute nor unlimited. For disclosure rights, “Crown” only means the “prosecuting Crown” and not all other Crown entities including police.
Stinchcombe disclosure only applies to material relating to the accused’s case that is in the possession or control of the Crown. Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to disclosure. Information in the possession of third parties such as boards, social agencies, government departments, rape crisis centres, women’s shelters, doctors’ offices, mental health and counselling services or foreign law enforcement agencies is not in the possession of the Crown.
An accused person does not have to pay for one copy of basic disclosure materials.
If the accused believes all required disclosure has not been made, one may apply for review by the trial judge.
Timing of Disclosure
The Crown should advise a self-represented accused of the right to disclosure. The right to disclosure arises once it is requested. In practice today the Crown discloses automatically as soon as reasonably practicable even without a formal request. Initial disclosure should be provided to allow the accused to make an informed decision about election and plea.
The purpose of criminal prosecutions is not to score the most convictions, but to present all relevant evidence and obtain justice. The prosecutor’s objective is not to win, but to perform a public duty with dignity and fairness.
The Crown is often unable to make complete disclosure at the initial stage of the disclosure process. Premature disclosure may result in harm to an individual or public interest and can be delayed to protect the integrity of an ongoing investigation or where necessary to protect the safety of certain witnesses.
The Crown’s disclosure obligation is a continuing one and attaches to information that comes to the attention of or into the possession of Crown counsel throughout the process. It even continues after conviction, including after appeals have been decided or the time of appeal has elapsed. On the other hand, great deference is shown to the Crown’s manner and timing of disclosure.
General Principles of Stinchcombe Disclosure
The Crown must preserve and disclose to the defence all information under its control – whether inculpatory or exculpatory – which may assist the accused in some way. Admissibility of the information as evidence is not a consideration. Crown information is subject only to relevance and privilege.
The prosecutor has broad discretion to determine relevance. Information which is not useful is irrelevant.
Withholding for privilege includes the protection of informants, cabinet confidences, national security, international relations and national defence information. Information that is protected by solicitor-client privilege or may reveal confidential police investigative techniques is not shared. The Crown’s own internal notes, memoranda, correspondence, opinions or other materials generated to prepare the case for trial are not subject to disclosure.
Type of Information Disclosed
The Crown must preserve and disclose to the defence all information under its control … which may assist the accused in some way. Generally disclosure includes some of the following as available: the charging document, particulars of the offence, audio/video and transcribed witnesses statements, statements of the accused, any expert witness reports, documents, exhibits, search warrants, private communication intercept authorizations, similar fact evidence, identification evidence, and witness and accused criminal records. Defence lawyers can obtain records of sexual assault victims.
The disclosure documents may be in either paper format such photocopies, electronic format such as CD-ROM, or a web-based format. Where disclosure is in one of the two official languages, it does not need to be translated. The Crown must organize the disclosure so it can be meaningfully searched and used. This is essential where a great volume of material is disclosed.
Conclusion
The purpose of criminal prosecutions is not to score the most convictions, but to present all relevant evidence and obtain justice. The prosecutor’s objective is not to win, but to perform a public duty with dignity and fairness.
Accused persons have no equivalent disclosure obligation. Prior to 1991, Crown disclosure was made on an ad hoc voluntary basis. Stinchcombe is a landmark Supreme Court of Canada ruling that mandated it in every criminal prosecution, forcing police and prosecutors to share all information with the accused person, not just the evidence the Crown will use in court. Stinchcombe has changed criminal prosecutions more dramatically than any other decision. Now we have Stinchcombe principles (of disclosure) and the Stinchcombe application (to stay the charges).
These disclosure rights have added many millions of dollars to the cost of prosecuting cases. Much more work must be done by the Crown at the beginning. Delays in getting cases tried and the length of trials has increased. Deciding what is relevant is not always easy. A simple omission, as in the actual Stinchcombe case, can lead to the withdrawal or staying of charges or overturned convictions.
Most constitutional rights are not absolute.On the other hand, Stinchombe enables the accused to better prepare one’s defence. Early and full disclosure facilitate plea negotiations, and reduces the number of full criminal trials and wrongful convictions. Fairness does not depend upon the goodwill of the particular prosecutor, evidence is no longer withheld, and surprise is eliminated. Disclosure made the prosecutors better prepared. It also bolstered the photocopy industry.
Ironically, – and this is often the reality in judicial decision-making – the facts in Bill Stinchcombe’s case were exceptionally weak to support such a sweeping constitutional principle. The potentially favourable evidence the secretary originally gave was likely Stinchcombe himself ‘refreshing her memory’ at the courtroom doors. Stinchcombe may have contributed to the evidentiary confusion. He easily could have called her to testify at his trial. There was no prejudice. For him and the Supreme Court of Canada to suggest he was facing a miscarriage of justice was an overstatement which led to this exceedingly onerous judicially-fashioned disclosure obligation. The evidence that led to this historic legal development would have most likely made no difference at all in the real Stinchcombe case.
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