Hu v. British Columbia Securities Commission, 2010 BCCA 306, newly released online, makes clear that the Crown must produce all materials, inculpatory or exculpatory, unless the Crown justifies a refusal to disclose. The onus of justifying the refusal rests with the Crown. The Court writes:
[17] It does not follow, however, that I am satisfied the B.C. Commission made a proper determination with respect to the non-disclosure of the documents in question. On an application dealing with disclosure of documents, the onus is on the party resisting disclosure to justify non-disclosure. This was made clear in Stinchcombe itself, at 340:
The discretion of Crown counsel is, however, reviewable by the trial judge. Counsel for the defence can initiate a review when an issue arises with respect to the exercise of the Crown's discretion. On a review the Crown must justify its refusal to disclose. Inasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule.
[18] The point was reiterated by the Supreme Court of
The Crown's disclosure obligation is subject to a discretion, the burden of justifying the exercise of which lies on the Crown, to withhold information which is clearly irrelevant or the nondisclosure of which is required by the rules of privilege, or to delay the disclosure of information out of the necessity to protect witnesses or complete an investigation: Stinchcombe, supra, at pp. 335-36, 339-40. As was said in Stinchcombe, supra, at p. 340, "[i]nasmuch as disclosure of all relevant information is the general rule, the Crown must bring itself within an exception to that rule".
[19] In para. 7 of its October 7, 2009 reasons, the B.C. Commission made reference to its decision in Fernback (Re), 2004 BCSECCOM 378 (CanLII), 2004 BCSECCOM 378, acknowledging the applicability of the Stinchcombe principles to enforcement proceedings under the Securities Act. At para. 39 of Fernback, the above para. 21 of Stinchcombe, dealing with the onus, was quoted.
[20] Thus, the B.C. Commission was in error when it stated in para. 10 of its reasons that the onus was on the appellant to provide evidence that the staff had not met the disclosure standard. The onus remained on the executive director at all times to justify non-disclosure.
[21] Reading paras. 8 through 11 of the reasons as a whole, it appears that, with the exception of the affidavit sworn in support of the investigation order dated January 11, 2008, the B.C. Commission did not actually make a determination that the documents were not relevant. Rather, it appears the B.C. Commission concluded that there was nothing in the descriptions of the documents to show that the executive director had wrongly applied the Stinchcombe standard of relevance and placed the onus on the appellant of proving that the documents are relevant. This was not the correct approach.
[22] With respect to the one class of documents that the B.C. Commission did make a determination of irrelevancy, it was wrong. The scope of the disclosure obligation is broad; information must be disclosed unless it is clearly irrelevant: Stinchcombe at 339, and Egger at 466 quoted above. Information must be disclosed whether it is inculpatory or exculpatory. In Egger at 467, the Supreme Court discussed the meaning of relevance within the context of enabling an accused person to make full answer and defence:
One measure of the relevance of information in the Crown's hands is its usefulness to the defence: if it is of some use, it is relevant and should be disclosed ‒ Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.
No comments:
Post a Comment