Defective Crown Disclosure

Where the Crown has failed to make proper disclosure and the fact of the non-disclosure comes to light at trial some counsel seek to have evidence excluded or a stay entered. In general though, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure.  This may trigger a delay argument depending on the circumstances.

Today's Court of Appeal decision in R. v. Horan, 2008 ONCA 589 sets out this law well.

The Court held:

[30]          Where a breach of the Crown's disclosure obligation is made out to the extent that the accused's s. 7 Charter right to make full answer and defence has been infringed, trial judges have at their disposal an arsenal of remedies ranging from a stay of proceedings in the most egregious cases, to ordering disclosure and subsidiary remedies such as ordering costs against the prosecution or adjourning the proceedings.  Further, in an appropriate case, the trial judge has the power to give the remedy adopted in this case of excluding the undisclosed evidence: see R. v. O'Connor (1995), 103 C.C.C. (3d) 1 (S.C.C.) at para. 66, approving the use of innovative remedies as appropriate, including exclusion of evidence, as was done in R. v. Xenos (1991), 70 C.C.C. (3d) 362 (Que. C.A. ).

[31]          Any remedy for breach of the disclosure obligation must be responsive to the breach; the remedy must, in the words of s. 24(1), be "appropriate and just in the circumstances".  In most cases, the appropriate remedy is to order disclosure and, if necessary, adjourn the case to allow the defence to conduct whatever further preparation or investigation may be necessitated by the disclosure.  In some cases, an adjournment may not be an appropriate or just remedy if the result would be to unreasonably delay the trial of an in-custody accused.  In such a case, an appropriate remedy could be exclusion of the undisclosed evidence.  However, the burden is on the accused to demonstrate that exclusion of the evidence was appropriate. 

[32]          Assuming there was a breach of the prosecution's disclosure obligation, on this record, the remedy granted by the trial judge was unreasonable.  The information the Crown sought to obtain from Dr. Reid was limited and relatively straight-forward.  At the point where the issue arose there was no indication that a very brief adjournment or holding down Dr. Reid's evidence until later in the trial would not have sufficed.  If defence counsel was able to demonstrate that he required further time to investigate or that he could not obtain expert advice to meet Dr. Reid's additional evidence, the trial judge would be in a position to consider whether the appropriate remedy was to exclude that part of Dr. Reid's evidence.  In making that determination, the trial judge would have to bear in mind the objectives of disclosure to which I alluded earlier.  Was this remedy appropriate to prevent the respondent from potentially being deprived of his right to make full answer and defence?  Put another way did the justice of the case require that this evidence be excluded because the accused was not able to address the issue on the basis of complete information of the case to be met?
James Morton
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