A person charged with an offence has a constitutional right to disclosure. Our courts see it as a part of the accused’s right to make full answer and defence and this right is now enshrined in the overall principles contained in section 7 of the Charter.
The prosecutor’s obligation to disclose is triggered by defence counsel’s timely request in writing for disclosure. As a practical matter where the original defence request is broadly worded, the defence would be wise to make a detailed demand before bringing an application for relief, especially in complex cases. Applications for relief should be brought to the trial Judge. The defence is not obliged to pay for the cost of providing disclosure. The requirement of the prosecution to provide disclosure is unconditional.
There are very limited circumstances under which the prosecution is allowed to withhold disclosure. The narrow grounds upon which disclosure may be withheld relate to public interest, privilege and lack of relevancy. However, the onus is upon the prosecution to justify any form of non-disclosure. Usually such determinations are made before the trial Judge upon a voir dire. The prosecutor’s obligation to disclose extends beyond what is in the prosecutor’s custody. It extends to information over which the prosecutor has control. Many persons may have information that is relevant to the case and will disclose that information if authorized or requested by the prosecutor.
On occasion, however, in order to make full answer and defence, the defence may require relevant information that is neither immediately in the prosecutor’s possession nor under the prosecutor’s control. Third parties may be ordered to produce records that contain personal information pursuant to a process now outlined in section 278.1. The sections following 278.1 outline the procedure that is applicable. The procedure in general requires that notice be given to the third party custodian of the documents and the person with a privacy interest in the material.
These sections provide for a higher threshold for the accused to meet in order to obtain production of medical, psychological, therapeutic and other such records of a witness or complainant. These sections require that a trial Judge hold an in camera hearing where the accused must show that the material is likely relevant to the proceedings and that production is necessary in the interests of Justice, such that the record(s) should be produced to the Judge for review and possible editing before disclosure, if deemed appropriate to the defence.
The prosecutor also has an obligation to preserve the evidence. Serious deficiencies in the quality of reproduced materials may amount to a failure to disclose. Also, voluminous disclosure presented in a mixed up, non-discernible fashion, effectively swamping the defence with material, may also amount to a breach of disclosure obligations.
See part 2 of this article.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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