Monday, December 24, 2012

Police and Crown do not act at direction of accused

R. v. Spackman, 2012 ONCA 905 makes clear that police and Crown do not act at direction of an accused:

[108] The disclosure obligations of the Crown do not require the production of witnesses for discovery, for example by calling them as witnesses at a preliminary inquiry: R. v. S.J.L., 2009 SCC 14, [2009] 1 S.C.R. 426, at para. 23; R. v. Khela, [1995] 4 S.C.R. 201, at para. 18. Nor does an accused have a constitutional right, as an incident of the right to make full answer and defence or otherwise, to an adequate police investigation of the crime with which she or he is charged: R. v. Darwish, 2010 ONCA 124, (2010), 103 O.R. (3d) 561, at para. 29; R. v. Barnes, 2009 ONCA 432, at para. 1. Further, an accused has no constitutional right to direct the conduct of a police investigation of which she or he is the target or, through a disguised disclosure demand, conscript the police to undertake investigatory work for him or her: Darwish, at para. 30; R. v. Schmidt, 2011 BCCA 3, 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. On the other hand, the police and Crown should give serious consideration to investigative requests made on behalf of an accused:Darwish, at para. 30. That said, it is the prosecutorial authorities, not the defence, that bear the ultimate responsibility for determining the course of the investigation:Darwish, at para. 30.


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