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
Rarely does a single prosecution so fundamentally alter legal practice in Canada as the Stinchcombe case. This criminal law decision from a unanimous Supreme Court of Canada does not involve the merits of guilt or innocence or the severity of sentencing. It deals only with the uncompromising legal duty of the Crown prosecutor to share all the evidence it has collected with the accused prior to the criminal trial. If the Crown does not do so, the charge may be stayed or a conviction overturned. This has resulted in delays, a massive expansion of prosecutorial resources and undoubtedly some people guilty of crimes walking free. This article tells the story of the landmark Stinchcombe case.
William (Bill) Stinchcombe, a Calgary lawyer, had utterly entangled legal representation and business venturing with his clients in the 1980s. He got into trouble when he could not repay money his clients had lent or invested with him. He was suspended as a lawyer by the Law Society of Alberta in September 1987. He was also charged with criminal breach of trust, theft and fraud for embezzling $1.6 million from a client.
Stinchcombe lost most of the civil lawsuits against him and appears to have left them unpaid when he quit Canada and moved to Australia shortly after 2001. His former secretary gave evidence at the preliminary inquiry for the Crown that tended to support Stinchcombe. When she later she gave statements to the police that contradicted and retracted her earlier evidence, the Crown decided not to use her statements in its case. It informed Stinchcombe about the statements but refused to share them. The secretary did not want to speak any more to Stinchcombe or his lawyer, although they could have called her as a witness. The trial went ahead in February 1989 without the secretary’s evidence.
Stinchcombe was convicted and sentenced to nine years in prison. He spent almost one week in jail before seven friends helped raise the $150,000 bail to get him out.
Appeal to the Supreme Court of Canada
The Supreme Court of Canada concluded that, in criminal cases, the Crown has a constitutional duty to disclose to the defence all evidence in its possession and control that could be relevant to the case. This duty does not depend upon whether the Crown will call that evidence at trial, whether the Crown thinks a witness is not worthy of credit, or whether the evidence helps or hurts the Crown’s case.
This disclosure duty derives from the right of an accused to make full answer and defence which has been entrenched in Section 7 of the Charter of Rights and Freedoms. At the time, a few wrongful convictions (such as the conviction of Donald Marshall) were circulating in the news and a full right of disclosure of evidence from the Crown was seen as an effective move to prevent these.
The Court quashed the conviction, and ordered Crown disclosure of all the secretary’s evidence prior to a new trial. As it would turn out, this was the first of many fantastical excursions for Stinchcombe in the legal world he thought he knew.
Subsequent Trials and Other Legal Proceedings
Crown disclosure was a problem at the second trial because the tape and statement were missing. A brain tumor claimed the policeman who held them. His widow could not find the evidence. Eventually, the Crown produced a photocopy of the witness statement and transcript of the tape. Stinchcombe, savouring his momentum and perhaps sensing vulnerability of the Crown, insisted on receiving the physical tape recording to check whether the transcripts were accurate.
The Supreme Court of Canada concluded that, in criminal cases, the Crown has a constitutional duty to disclose to the defence all evidence in its possession and control that could be relevant to the case. But the tape was gone, so the trial judge stayed the charges. This case also went to the Supreme Court of Canada which said in 1995: “the Crown produced a copy of the statement and a transcript of the tape and explained the absence of the originals. That explanation did not reveal any misconduct on the part of the Crown. In our opinion, the Crown had fulfilled its obligation to produce. The Crown can only produce what is in its possession or control. There is no absolute right to have originals produced.” Then the tape was found and given to Stinchcombe.
At about the same time, Stinchcombe was also defending himself against two clients in civil cases. One client was the complainant in the $1.6 million criminal fraud case. It is not clear how much Stinchcombe had to account to this client who was also his business partner after the 1993 lawsuit. The other client in 1994 won a $400,000 claim and full indemnity costs. In both cases, the judges expressed serious concerns about Stinchcombe’s credibility.
Meanwhile, when Stinchcombe was preparing for the third criminal trial, a Crown memo surfaced which vaguely implied the criminal complainant (Stinchcombe’s client) might have lied about something. Further investigations produced nothing, but the new Crown prosecutor decided to tap out. He thought disclosure of that seven year old memo was coming too late even though it had just come to his attention, it was only legally required to be disclosed four years earlier, and Stinchcombe was not being tried in the interim. On March 22, 1996, the Crown called no evidence and Stinchcombe was acquitted of the criminal charges.
All of this time, Stinchcombe was not able to practice law. According to one report, “he was forced to survive by working as a labourer, store clerk, armourer (i.e., someone who maintains firearms and supervises their use on movie sets), tutor, and tax preparer. He also worked as a horse trainer . . . He even spent nearly a year making donuts at Tim Hortons.”
Delay also came to Stinchcombe’s rescue in his fight against the Law Society. The Alberta Court of Appeal stayed all professional sanctions against him in 2002 on the grounds of delay and prejudice to his defense. He was reinstated as a lawyer in Alberta but he did not practice.
Stinchcombe moved to Australia. Then in 2003 he sued the Law Society of Alberta for $16 million. He said the Law Society’s drawn out disciplinary proceedings prevented him from earning a living as a lawyer. Few steps were taken to advance that lawsuit. In late 2008, the Law Society moved for, and was granted by the Court of Queen’s Bench, an order that Stinchcombe furnish security for costs in the amount of $630,000 as a pre-condition to continuing that lawsuit. This order to post costs appears to have brought this lawsuit to an end.
What Happened to Stinchcombe?
Very few people get their cases heard and decided by the Supreme Court of Canada. Stinchcombe joins Morgentaler and Keegstra as an even smaller club of people who had their cases heard at that court more than once.
Meanwhile, when Stinchcombe was preparing for the third criminal trial, a Crown memo surfaced which vaguely implied the criminal complainant (Stinchcombe’s client) might have lied about something. Stinchcombe lost most of the civil lawsuits against him and appears to have left them unpaid when he quit Canada and moved to Australia shortly after 2001. Prosecutorial delay was invoked to toss out all criminal (seven years) and professional disciplinary charges (fourteen years) that had been brought against him. These charges were never decided on their merits. The tidal waves of litigation and suppressive legal process – much of it initiated by Stinchcombe – served to overwhelm and crush the allegations originally presented.
In the end, although Stinchcombe escaped criminal and regulatory conviction, any victory or termination of hostilities he did experience came at a high personal cost. He lost his income, friends, lifestyle, reputation, family and his estate. Now 73, he is listed as “Managing Law Clerk” in a small law firm that bears his name in Australia.
Note: the highlights of this significant Crown duty of disclosure which began with Stinchcombe will be the subject of the next Famous Cases column.