Today's SCC decision on disclosure

CRIMINAL LAW:  DISCLOSURE

R. v. Bjelland  (Alta. C.A., December 21, 2007) (32446) 

"The accused was charged with importing cocaine and possession of cocaine for the purpose of trafficking.  After pre-preliminary hearing conferences, the Crown indicated that disclosure was substantially complete.  A preliminary hearing was subsequently held and a trial date set for May 1, 2006.  In March and April 2006, the Crown provided the accused with evidence from two alleged accomplices, both of whom were to be called at trial.  The accused moved for a stay of proceedings or, alternately, for the exclusion of the evidence on the grounds that his right to make full answer and defence had been prejudiced by the late disclosure.  The trial judge ordered the exclusion of the late disclosed evidence under s. 24(1) of the Canadian Charter of Rights and Freedoms.  At trial, the accused was acquitted.  The Court of Appeal, in a majority decision, set aside the acquittal and ordered a new trial, finding that the trial judge committed a reviewable error by failing to consider whether a less severe remedy than exclusion of evidence could have cured the prejudice to the accused." 

The SCC held (4:3) that the appeal is dismissed. Justice Rothstein stated as follows (at page 2): "I agree with the result of the majority in the Court of Appeal.  In my view, the trial judge committed a reviewable error by failing to consider whether the prejudice to the appellant could be remedied without excluding the evidence and the resulting distortion of the truth-seeking function of the criminal trial process.  Under s. 24(1), where the evidence was obtained in conformity with the Charter , its exclusion is only available as a remedy where its admission would result in an unfair trial or would otherwise undermine the integrity of the justice system.  In this case, the prejudice to the appellant's right to make full answer and defence could be remedied through an adjournment and disclosure order and there was nothing that otherwise compromised the fairness of the trial process or the integrity of the justice system."
James Morton
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