Friday, May 1, 2015

Crown disclosure obligations

Henry v.British Columbia (Attorney General), 2015 SCC 24:

[67]                          Disclosure is one of the Crown's fundamental obligations in a criminal prosecution. The Crown is duty-bound to disclose relevant information to the defence, and this obligation is a continuing one. This stringent and, at times, heavy burden on the Crown guarantees an accused's ability to make full answer and defence. Indeed, this was precisely the reason that the Court affirmed a constitutional right to disclosure more than two decades ago in Stinchcombe

. . . [t]here is [an] overriding concern that failure to disclose impedes the ability of the accused to make full answer and defence. This common law right has acquired new vigour by virtue of its inclusion in s. 7  of the Canadian Charter of Rights and Freedoms  as one of the principles of fundamental justice. . . . The right to make full answer and defence is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted. [Citation omitted; p. 336] 

[68]                          Canadians thus rightly expect that the Crown will fulfill its disclosure obligations with diligence and rigour. By and large, Crown attorneys working on the front lines of our criminal justice system exceed these expectations on a daily basis. I pause here to note that Mr. Henry's allegations of non-disclosure arise, in the main, from events that occurred during the pre-Stinchcombeera, when Crown disclosure practices were not as robust as they are today. Nevertheless, our system remains imperfect, and wrongful failure to disclose is not a mere hypothetical — it can, and does, happen, sometimes taking an extraordinary human toll and resulting in serious harm to the administration of justice.


Wolfe watcher said...

Yet, don't count on your counsel to get disclosure for you, although you pay him for it over, and over, and over again. Such a hypocrite.

chascurrie said...

Isn't the problem that there are no teeth in the obligation?
The Crown lives to deceive another day, time and time again.