Remedy for late disclosure

R. v. Bjelland, 2009 SCC 38 is an interesting example of the changing views of the Supreme Court towards Charter breaches.  It is becoming very challenging to exclude evidence on the basis of a Charter breach. 

 

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.

 

Exclusion of evidence obtained in conformity with the Charter is only available as a remedy under s. 24(1) of the Charter where (a) late disclosure renders the trial process unfair and this unfairness cannot be remedied through an  adjournment and disclosure order or (b) exclusion is necessary to maintain the integrity of the justice system.  The integrity of the justice system requires that the accused receive a trial that is fair in that it satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused.  Because the exclusion of evidence impacts on trial fairness from society's perspective, insofar as it impairs the truth‑seeking function of trials, it will not be appropriate and just to exclude evidence under s. 24(1) where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system. 

 

The trial judge committed a reviewable error by failing to consider whether the prejudice to the accused's right to a fair trial could be remedied without excluding the evidence.  The Crown provided the accused with disclosure, albeit late, and there is no suggestion that the Crown had engaged in deliberate misconduct.  In the circumstances of this case, an adjournment and a disclosure order would have sufficiently addressed the prejudice to the accused while preserving society's interest in a fair trial.  By ordering the exclusion of the evidence, the trial judge misdirected himself and did not impose an appropriate and just remedy. 

 

The accused's s. 7 Charter right to make full answer and defence was not infringed by his inability to cross‑examine the potential Crown witnesses at a preliminary hearing.  The material provided to the accused was sufficient disclosure of the Crown's case against him, and cross‑examining a witness at a preliminary hearing is not a component of the s. 7 right to make full answer and defence.

 

The Court writes:

 

 

[20]                          Before being entitled to a remedy under s. 24(1), the party seeking such a remedy must establish a breach of his or her Charter rights. In a case of late disclosure, the underlying Charter infringement will normally be to s. 7.  Section 7 of the Charter protects the right of the accused to make full answer and defence. In order to make full answer and defence, the Crown must provide the accused with complete and timely disclosure: see R. v. Stinchcombe, [1991] 3 S.C.R. 326.  The purpose underlying the Crown's obligation to disclose is explained by Rosenberg J.A. in R. v. Horan, 2008 ONCA 589, 237 C.C.C. (3d) 514, at para. 26:

 

 

 

 

 

Put simply, disclosure is a means to an end. Full prosecution disclosure is to ensure that the accused receives a fair trial, that the accused has an adequate opportunity to respond  to the prosecution case and that in the result the verdict is a reliable one. 

 

 

 

[21]                          However, the Crown's failure to disclose evidence does not, in and of itself, constitute a violation of s. 7.  Rather, an accused must generally show "actual prejudice to [his or her] ability to make full answer and defence" (R. v. O'Connor, [1995] 4 S.C.R. 411, at para. 74) in order to be entitled to a remedy under s. 24(1).

 

 

 

[22]                          While the accused must receive a fair trial, the trial must be fair from both the perspective of the accused and of society more broadly.  In R. v. Harrer, [1995] 3 S.C.R. 562, McLachlin J. (as she then was) provided guidance on what is meant by trial fairness.  She stated, at para. 45, that:

 

 

 

At base, a fair trial is a trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused's point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained.  A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added.]

 

 

 

[23]                          Apart from ensuring trial fairness, there is one other circumstances in which late disclosed evidence might be excluded.  That is where to admit the evidence would compromise the integrity of the justice system. 

 

 

 

 

 

[24]                          Thus, a trial judge should only exclude evidence for late disclosure in exceptional cases: (a) where the late disclosure renders the trial process unfair and this unfairness cannot be remedied through an adjournment and disclosure order or (b) where exclusion is necessary to maintain the integrity of the justice system.  Because the exclusion of evidence impacts on trial fairness from society's perspective insofar as it impairs the truth-seeking function of trials, where a trial judge can fashion an appropriate remedy for late disclosure that does not deny procedural fairness to the accused and where admission of the evidence does not otherwise compromise the integrity of the justice system, it will not be appropriate and just to exclude evidence under s. 24(1).