Production pending appeal

Following conviction, in the face of an appeal, the Crown has continued disclosure obligations.

In the appellate context what is necessary is that the Crown's disclosure obligation recognise and give full value to an accused's broad right of appeal and the rationale underlying those rights.

Accordingly, the Crown's disclosure obligation on appeal must extend to any information in the possession of the Crown that there is a reasonable possibility may assist the accused in the prosecution of his or her appeal.

That said, not everything is to be disclosed. The Crown will not be ordered to produce material for a pending material unless an accused demonstrates that there is a least an 'air of reality' to the assertion the material could assist the appeal.

Thus in R. v. Singh, 2010 ONCA 11 the Court holds:

[40]         The second prong of the Trotta test is aimed at requiring that the moving party show a reasonable possibility that a production order will assist in developing a successful ground of appeal. Considered in that context, the problem with the moving party's material is that he has failed to demonstrate even an air of reality to his claim that some form of interpretation problems existed in his case in circumstances where it is reasonable to believe that he should be able to do so. 
James Morton
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