Disclosure being provided not to be used against an accused's credibility in testimony

This week's decision in R. v. Thain, 2009 ONCA 223 deals with the tricky issue of whether disclosure in a criminal case may be considered in weighing an accused evidence.

An accused is entitled to review the evidence of the Crown before trial through disclosure. As a practical matter this means an accused could tailor their testimony to meet the Crown's case.

But if that was to be taken into account, the provision of disclosure would be a trap for an accused.

As a result, especially if the suggestion has not been put to the accused during testimony, the fact an accused has had disclosure may not be taken into account in weighing the accused's evidence.

The Court writes:

[29]          In my view, the fact that the accused enjoyed his constitutional right to disclosure had no bearing on his credibility in this case and the trial judge erred in law by stating that it did.  Even if the disclosure might possibly have had a bearing on credibility, trial fairness demanded that the accused be confronted with the suggestion and afforded the opportunity to refute it or make submissions before being disbelieved on that account.
James Morton
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