Disclosure - Right to Disclosure PDF

Disclosure Right to Disclosure One of the fundamental principles of our justice system is that the accused is entitled to make full answer and defence pursuant to the common law and...

Disclosure Right to Disclosure One of the fundamental principles of our justice system is that the accused is entitled to make full answer and defence pursuant to the common law and pursuant to section 7 of the Charter. Before an accused person can make any meaningful decisions about how to plead to a charge, they must fully understand and appreciate the extent of the Crown’s case. The accused must be able to properly defend themself against the charges that have been laid. Historically, the element of surprise was a tactical strategy that one party would use against the other in criminal or civil proceedings. In criminal proceedings, the Crown would voluntarily provide disclosure to the defence, but there were no laws or procedural rules requiring the Crown to do so. In the Criminal Code, the accused’s right to disclosure is mentioned in section 603, which states that an accused is entitled to inspect the indictment or the information, their statement, and a copy of the evidence. However, the disclosure obligation of the Crown is not limited to these items. The common law is more specific as to the exact nature of the Crown’s obligation to disclose information. In the landmark case of R v Stinchcombe, the Supreme Court of Canada highlighted the duty of the Crown to disclose any relevant information to the defence: Materials that are in the Crown’s possession are not the property of the Crown for the purpose of securing a conviction but are the public’s property to ensure that justice is done. All relevant information must be disclosed, regardless of whether or not the Crown intends to rely on it as evidence at the trial. This means that the information must be disclosed whether it is inculpatory evidence or exculpatory evidence.  Disclosure Right to Disclosure Furthermore, the Crown’s discretion in determining whether the information is relevant or irrelevant is reviewable by the trial judge. The test for relevance is not an onerous one—relevance in this context means a reasonable possibility that the information will be useful to the accused in making full answer and defence. In R v Pascal, the Ontario Court of Appeal held that an eyewitness’s criminal record and outstanding charges were obviously relevant since they contribute to the reliability of the Crown witness and are considered to be first-party disclosure by the Crown, as per Stinchcombe. The duty to disclose is an ongoing one, meaning that the Crown must continue to disclose any information that comes to light leading up to the trial, and if the accused is convicted, leading up to and including the sentencing stage. The defence paralegal must diligently pursue disclosure. The paralegal cannot remain silent about missing disclosure and then bring an application to seek an adjournment or a judicial stay of proceedings claiming that disclosure has not been made.  Disclosure Exceptions to Disclosure There are exceptions to disclosure. If the material is clearly irrelevant, then the Crown does not have to disclose it. If the material is protected by privilege, then the party claiming privilege must satisfy the court that it extends to the disclosure material. Finally, the timing of disclosure may be delayed due to an ongoing investigation or for the safety of witnesses. Any information or material that is in the possession of the police is considered to be under the Crown’s control, so if it is relevant, it must be disclosed to the defence. If the material is not in the Crown’s possession but in the possession of a third party, such as a complainant or a witness, the accused must make an application before the court for disclosure of third-party records. An exception to this rule has come up in the context of police disciplinary records, as seen in the case of R v McNeil.  Disclosure Exceptions to Disclosure  Disclosure Timing and Nature of Crown Disclosure A disclosure package is typically provided by the Crown at the accused’s first court appearance. If the accused is being detained in custody, then disclosure may be provided prior to the bail application, but in skeletal form. For an accused person in custody, a synopsis of the incident, along with the accused’s criminal record, is available for the defence to prepare for a bail hearing. If the accused is not in custody, the disclosure is provided to the accused or their counsel at the first court appearance.  Disclosure Timing and Nature of Crown Disclosure The items typically included as part of initial disclosure include: Copy of the information; Police report or narrative of the incident; Statements of any victims and witnesses; Accused’s statement, if any; Notes of investigating officers; Criminal record of the accused; Any videotaped statements; Copies of photographs or images taken by the police; and Copies of any court orders binding the accused.  Disclosure Charge Screening Form As part of a disclosure package, the Crown usually provides a Crown screening form or charge screening form. A charge screening form contains information as to how the Crown will be proceeding on the charge (by summary conviction or indictment), although the Crown is not required to make a formal election on the record until prior to a plea being entered. Additional information on the charge screening form may include: An early resolution position or any concessions that the Crown is prepared to make on an early guilty plea, The Crown position on sentencing on an early guilty plea, The Crown position on sentencing once a trial date has been set, Whether the matter may be sent to a diversion program to deal with it outside of the court process, Any conditions attached to disclosure or to the use of disclosure materials, Instructions as to how to request additional disclosure, and Instructions as to how to apply for legal aid. The charge screening form is also signed and dated by the Crown attorney who prepared it. In order to expedite disclosure, the defence paralegal should send an initial disclosure request letter to the Crown prior to the first court appearance that confirms the identity of the client, the next court date, and that the paralegal is acting for the client.  Disclosure Charge Screening Form  Disclosure Requesting Additional Disclosure The initial disclosure package should be promptly reviewed to ascertain what additional disclosure may be outstanding. At this initial stage, the Crown may not be aware of any missing items. Therefore, it is important for the accused’s representative to be vigilant about checking the file to ensure that full disclosure has been provided. Failure to take this step may result in a delay of the proceedings and prejudice to the client. Once the initial disclosure has been reviewed carefully, a request for additional disclosure should be sent to the Crown with the date, time, and location of the next court appearance indicated on the request. Consideration should be given to whether any pre-trial applications will be brought before the court (see Chapter 7) and whether any specific defences may be brought at trial based on the initial disclosure.  Disclosure Requesting Additional Disclosure Any additional requests should be followed up on to ensure that they have been responded to well in advance of the trial date. It is also important for the paralegal to assess whether a request for additional disclosure will harm the client’s case. For Example: A client charged with theft from a convenience store discloses to the paralegal that a surveillance recording of the incident may be available from the store. If the paralegal requests a copy of the recording, then the Crown will become aware of its existence. If the recording contains incriminating evidence, this will obviously jeopardize the client’s case. On the other hand, if the paralegal does not request the recording, the Crown and the police may not be aware of its existence at all. Of course, prior to making a decision as to whether to request this additional material, the paralegal should thoroughly interview the client about the details of the case and the evidence, as well as speak to other witnesses. The paralegal should also determine whether it is possible to obtain the additional evidence without bringing it to the attention of the Crown. Once disclosure is received, it should be organized for easy referral and access within the client’s file. Witness statements should be clearly marked and filed in one section, police notes should be separated by officer and involvement in the case, and reports should be placed near the top of the file for quick accessibility. The next step is to contact the Crown’s office to schedule a Crown pre-trial conference.  Crown Pre-Trial Conference The CPT is also where trial considerations take place. Such considerations touch on: Trial length estimates Witnesses that may be called Expert Witnesses Which charges the crown has the strongest case on and as such will be proceeding on And More... The defence is not required to advise the Crown as to the names of the defence witnesses who will be called at trial. However, if the defence will be calling an alibi witness, the defence should identify this witness so that the Crown may investigate the alibi. If this is not disclosed, the Crown may successfully request an adjournment at trial. Pursuant to section 657.3(3)(a) of the Criminal Code, both the Crown and the defence must provide notice to the opposing party if either wishes to call an expert witness at trial. The party calling the expert must provide at least 30 days’ notice prior to the trial or within the time set by the judge. Notice includes the name of the expert, a description of their expertise, and a statement of their qualifications. If the defence wishes to call an expert witness at trial, the Crown must be provided with the curriculum vitae (a short account of one's career) of the expert so that the Crown may investigate the expert’s qualifications. Again, failure to do this may result in the Crown successfully obtaining an adjournment at trial. Further, if the Crown calls the expert, they must provide a copy of the expert’s report to the defence within a reasonable period before the trial. The defence paralegal should be prepared to discuss any matters that are not in dispute and that may be proven by way of an agreed statement of facts or formal admissions.  Judicial Pre-Trial Conference Section 625.1(1) of the Criminal Code deals with a pre-hearing or judicial pre-trial conference and stipulates that either the Crown or the accused may request the conference. Typically, when the trial is expected to take more than one full day, a judicial pre-trial conference is mandatory. Also to be noted, JPT’s can be held to canvass a joint resolution between the crown and defence. The Judge will weigh in on the resolution and make recommendations or agree to the merits of the joint resolution Rule 4.2 of the Criminal Rules of the Ontario Court of Justice deals with judicial pre-trial conferences. A judicial pre-trial conference may take place by telephone or other form of communications technology. Rule 4.2 requires the Crown to provide the judge with a copy of the synopsis of the allegations prior to the pre-trial conference. If the defence wishes to submit any materials, it must be provided at least three days prior to the pre-trial conference. Some of the issues that may be discussed at the judicial pre-trial conference include confirming the estimate of time required for trial, setting timelines for the hearing of applications or the completion of disclosure, the possibility of resolution of the matter, and setting another judicial pre-trial conference, if required. Any agreements or admissions made by the Crown or defence about the anticipated trial, at the pre-trial conference are recorded, transcribed, and attached to the information for the trial judge by the JPT judge. As well Pursuant to rule 4.2, the judicial pre-trial conference provides an opportunity for the defence paralegal to discuss whether there is a reasonable prospect of conviction, raise any mitigating facts on behalf of the defendant, mention case law that is beneficial to the client at sentencing, and provide copies of reference letters from the client’s employer and community supports.  Judicial Pre-Trial Conference The judge who is assigned to the pre-trial conference will not be the trial judge. This is to ensure that the Crown and defence are able to discuss the evidence and the strengths and weaknesses of the case freely. The judicial pre-trial should be viewed as another opportunity to advocate on behalf of the client. If there are any issues that may be agreed upon at trial, they should be raised before the judge. Issues that may or may not have been discussed at the Crown pre-trial conference relating to a plea agreement, a sentencing recommendation, the witness list for the Crown, estimated trial time for the Crown and defence, any pre-trial applications, and any outstanding disclosure should be discussed at the judicial pre-trial conference. By the time of the judicial pre-trial conference, full disclosure should have taken place to ensure a meaningful discussion of the issues can take place. Matters that are specific to the trial, such as the admissibility of evidence gathered by the police and the voluntariness of any statements given by the accused, should be raised as well so that sufficient time is scheduled for the hearing. The defence paralegal should indicate which police witnesses the defence wishes to have available at the trial in case they are not under subpoena by the Crown. After the judicial pre-trial conference, the paralegal should draft a memorandum setting out the issues discussed and the position of the Crown and pre-trial conference judge. A letter should be sent to the Crown to confirm its position on various issues and the possible sentence. Another meeting with the client should be scheduled to review the position of the Crown and the pre-trial conference judge and to get the client’s final instructions as to whether the matter will be proceeding to trial. In the next chapter, we will take a look at various pre-trial applications that may be brought before the trial and the procedure for preparing an application pursuant to the Criminal Rules.  Crown Pre-Trial Conference The CPT is also where trial considerations take place. Such considerations touch on: Trial length estimates Witnesses that may be called Expert Witnesses Which charges the crown has the strongest case on and as such will be proceeding on And More... The defence is not required to advise the Crown as to the names of the defence witnesses who will be called at trial. However, if the defence will be calling an alibi witness, the defence should identify this witness so that the Crown may investigate the alibi. If this is not disclosed, the Crown may successfully request an adjournment at trial. Pursuant to section 657.3(3)(a) of the Criminal Code, both the Crown and the defence must provide notice to the opposing party if either wishes to call an expert witness at trial. The party calling the expert must provide at least 30 days’ notice prior to the trial or within the time set by the judge. Notice includes the name of the expert, a description of their expertise, and a statement of their qualifications. If the defence wishes to call an expert witness at trial, the Crown must be provided with the curriculum vitae (a short account of one's career) of the expert so that the Crown may investigate the expert’s qualifications. Again, failure to do this may result in the Crown successfully obtaining an adjournment at trial. Further, if the Crown calls the expert, they must provide a copy of the expert’s report to the defence within a reasonable period before the trial. The defence paralegal should be prepared to discuss any matters that are not in dispute and that may be proven by way of an agreed statement of facts or formal admissions.  Judicial Pre-Trial Conference Section 625.1(1) of the Criminal Code deals with a pre-hearing or judicial pre-trial conference and stipulates that either the Crown or the accused may request the conference. Typically, when the trial is expected to take more than one full day, a judicial pre-trial conference is mandatory. Also to be noted, JPT’s can be held to canvass a joint resolution between the crown and defence. The Judge will weigh in on the resolution and make recommendations or agree to the merits of the joint resolution Rule 4.2 of the Criminal Rules of the Ontario Court of Justice deals with judicial pre-trial conferences. A judicial pre-trial conference may take place by telephone or other form of communications technology. Rule 4.2 requires the Crown to provide the judge with a copy of the synopsis of the allegations prior to the pre-trial conference. If the defence wishes to submit any materials, it must be provided at least three days prior to the pre-trial conference. Some of the issues that may be discussed at the judicial pre-trial conference include confirming the estimate of time required for trial, setting timelines for the hearing of applications or the completion of disclosure, the possibility of resolution of the matter, and setting another judicial pre-trial conference, if required. Any agreements or admissions made by the Crown or defence about the anticipated trial, at the pre-trial conference are recorded, transcribed, and attached to the information for the trial judge by the JPT judge. As well Pursuant to rule 4.2, the judicial pre-trial conference provides an opportunity for the defence paralegal to discuss whether there is a reasonable prospect of conviction, raise any mitigating facts on behalf of the defendant, mention case law that is beneficial to the client at sentencing, and provide copies of reference letters from the client’s employer and community supports.  Judicial Pre-Trial Conference The judge who is assigned to the pre-trial conference will not be the trial judge. This is to ensure that the Crown and defence are able to discuss the evidence and the strengths and weaknesses of the case freely. The judicial pre-trial should be viewed as another opportunity to advocate on behalf of the client. If there are any issues that may be agreed upon at trial, they should be raised before the judge. Issues that may or may not have been discussed at the Crown pre-trial conference relating to a plea agreement, a sentencing recommendation, the witness list for the Crown, estimated trial time for the Crown and defence, any pre-trial applications, and any outstanding disclosure should be discussed at the judicial pre-trial conference. By the time of the judicial pre-trial conference, full disclosure should have taken place to ensure a meaningful discussion of the issues can take place. Matters that are specific to the trial, such as the admissibility of evidence gathered by the police and the voluntariness of any statements given by the accused, should be raised as well so that sufficient time is scheduled for the hearing. The defence paralegal should indicate which police witnesses the defence wishes to have available at the trial in case they are not under subpoena by the Crown. After the judicial pre-trial conference, the paralegal should draft a memorandum setting out the issues discussed and the position of the Crown and pre-trial conference judge. A letter should be sent to the Crown to confirm its position on various issues and the possible sentence. Another meeting with the client should be scheduled to review the position of the Crown and the pre-trial conference judge and to get the client’s final instructions as to whether the matter will be proceeding to trial. In the next chapter, we will take a look at various pre-trial applications that may be brought before the trial and the procedure for preparing an application pursuant to the Criminal Rules.  Section 810 Recognizance Orders There are two types of peace bonds that may be available. A common law peace bond - Comes from the authority of the judge to order someone to enter into a peace bond when they are satisfied that the person has done something that justifies an apprehension or concern that they may breach the peace in the future. A common law peace bond does not require that the complainant be fearful of the accused and the duration of the order may last for more than 12 months. A section 810 recognizance order (s.810 Peace bond) - Ss commonly known as a statutory peace bond. Section 810(1)(a) of the Criminal Code provides that when any person fears that another person will cause personal injury to themselves or to their intimate partner or child, or will damage their property, the person may lay an information before a justice. Under section (b), if the person has reasonable grounds to fear that another person will knowingly publish, distribute, transmit, sell, make available, or advertise an intimate image of themself without their consent, the person may lay an information before a justice. The maximum duration of a recognizance under this section is a period of 12 months. Under section 810(3)(a), the court may order the defendant to enter into a recognizance, either with or without sureties, with conditions that the defendant: Keep the peace and be of good behaviour; Abide by a weapons prohibition; Surrender any weapons and authorizations, licences, and registrations pertaining to the weapons; Not have any direct or indirect contact or communication with the complainant, their intimate partner, or children; Not attend at or within a specified distance of where the complainant or their intimate partner or children may be found; Abstain from the consumption of non-prescription drugs, alcohol, or other intoxicating substances; and/or Provide a sample of a bodily substance upon demand of a police officer or a probation officer.  Section 810 Recognizance Orders If the defendant refuses to enter into the recognizance, they may be committed into custody for a period not exceeding 12 months under Form 23. Although the procedure for determining whether the defendant should be ordered to enter into a peace bond is similar to a trial, the burden of proof is much lower. The complainant must only be able to show that they have reasonable grounds to fear the defendant. An application to have the accused enter into a peace bond may also be brought by someone on behalf of the complainant. A trial judge has the power to have an accused person enter into a section 810 recognizance when the Crown has not proven its case beyond a reasonable doubt but when there is sufficient evidence that the complainant has reasonable grounds to fear the accused. An order requiring the accused to enter into a peace bond is not a conviction. Although the details of the recognizance are available to the police on the Canadian Police Information Centre, it does not form a conviction on a record. Section 810(4.1) of the Code permits an accused person to apply to have the conditions of the recognizance modified. A breach of the section 810 recognizance is treated as a Code charge of breaching a court order and is punishable as a hybrid offence. Therefore, a conviction for breach of a peace bond will result in a criminal conviction.  Section 810 Recognizance Orders It should also be noted that in the case R v Penunsi, the Supreme Court determined that the arrest, pre-trial detention, and bail provisions under the Code apply to someone who is summoned to court to respond to an information for a peace bond, which is the document that alleges that the person swearing the information has reason to believe the individual named in the information will cause harm to themself or their intimate partner or child. There is no jurisdiction for a court to order a youth to enter into a section 810 recognizance. Other forms of recognizances, which are specific to certain types of offences, are also available under the Code—such as when a complainant is fearful of forced marriage or intimidation of a justice system participant or journalist, or for any of the following offences: Criminal organization offences, Terrorism offences, Sexual offences, and Serious personal injury offences. A section 810 recognizance can be found as Form 32 of the Code. An example of how the Law Society of Ontario deals with a licensee whose criminal charges are dealt with by way of a peace bond and diversion is illustrated in the Case in Point on the next slide. Section 810 Recognizance Orders