Sharing Evidence with Opposing Parties in Criminal Matters
Evidence in a criminal matter is called disclosure. Criminal law has strict rules about who must provide whom with disclosure. Unlike in civil law, the rules are generally one-sided. The defence has no obligation to provide the Crown with any disclosure, except for in a few discreet and specific circumstances. This means the defence does not need to reveal any evidence they have in their back pocket before using it at trial.
The Crown, however, has different obligations. Unless the evidence is clearly irrelevant, The Supreme Court of Canada in Stinchcombe ruled that the Crown must disclose all relevant, non-privileged information in possession or control of the prosecuting Crown’s control to the defence. The rule applies regardless of whether the evidence is inculpatory or exculpatory. This means that when an accused is charged with a criminal offence, they are entitled to receive all non-privileged and relevant evidence from the prosecuting crown’s office as soon as possible. Without complete disclosure of the evidence (in a timely manner), the accused cannot make full answer and defence, which violates the Charter of Rights and Freedoms. For example, even if the relevant surveillance video depicts something that would assist the defence, or shows nothing at all, it must be disclosed.
The disclosure that the defence is entitled to under Stinchcombe is referred to as “first-party disclosure.” If the Crown does not and/or will not disclose evidence that the defence believes is first-party disclosure, a motion can be brought in court to determine whether the evidence should be disclosed.
Suppose the crown does not provide disclosure in a timely fashion. In that case, it can give the defence fruitful grounds to bring an application under section 11(b) of the Charter of Rights and Freedoms alleging an unreasonable delay in the proceedings. With an overworked, overbooked criminal justice system, having a criminal matter bog down resources without the ability to move forward due to missing and necessary disclosure runs afoul of the constitutional goals and guarantees our justice system is meant to provide.
If the defence seeks disclosure that does not meet the requirements in Stinchcombe but is deemed necessary to make a full answer and defence, the accused can bring an application for third-party records. This application is called an “O’Connor Application” (see the 1995 Supreme Court decision, R v O’Connor).
In Canada, there can only be first- or third-party disclosure; there is no such thing as second-party disclosure. An example of third-party disclosure could be as such: the complainant’s medical records show, despite prior testimony that the complainant was sober at the time of the allegations, that the complainant was heavily intoxicated on drugs and alcohol. In such a circumstance, absent the consent of the crown, the defence would need to bring a motion to litigate why the medical records should be disclosed. The judge acts as the ultimate gatekeeper and weighs many criteria, including the privacy interests of the relevant party, before making a final ruling.
Unlike the Crown, the defence need not disclose their poker hand except in very specific circumstances. In addition to a third-party records application, notice of expert testimony, alibi evidence and third-party suspect applications all require the defence to provide the crown with advance notice and detailed particulars about the evidence that will be produced at trial. In sexual offences, amendments to the Criminal Code provide strict guidelines that require the defence to provide notice of certain types of evidence captured by the statutory regime before they are granted permission by the presiding judge to use it at a trial.
However, in any other circumstance, the defence has no duty to disclose any evidence to the crown. For example, if an accused person had a witness who was present during an alleged robbery (or better yet, video surveillance of the relevant time) that can help prove that a complainant is being untruthful, they do not need to disclose that in advance to anyone. Quite the opposite of what the crown is permitted to do, defence counsel can surprise a witness by confronting them with such evidence at trial. Conversely, the crown must provide the defence with full disclosure and an anticipated witness list in advance for there to be a fair trial.
Resting on constitutionally sound pillars, the rule in Stinchcombe is designed to remove any evidentiary advantage the state can have against an accused person. It levels the playing field so that an accused person is prepared and understands all of the evidence gathered and collected against them. This allows them to make an informed decision about whether they should proceed to trial or how the matter should otherwise be litigated. The incredible resources of the state, armed with the support of an entire police force, are so great that allowing for secret or surprising evidence to be used against an individual at trial without notice would be a grave injustice and an affront to the rule of law. Because what better marker is there of true and fair democracy than the constitutional guarantee and practice of a fair trial?
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DISCLAIMER The information in this article was correct at time of publishing. The law may have changed since then. The views expressed in this article are those of the author and do not necessarily reflect the views of LawNow or the Centre for Public Legal Education Alberta.
About Melody Izadi
