Duty on Crown to investigate potential defences for a criminal defendant?

Is there an obligation on the Crown to investigate potential defences that may be available to a criminal accused?

Today’s decision in R. v. Darwish, 2010 ONCA 124 answers the question: “No”.

The decision is also a good source for the principle that section 11(b) of the Charter does not apply to appeals (para 62).

The Court writes:

The Crown’s Duty to Investigate

[26] In addressing s. 7 of the Charter and in particular the right to make full answer and defence, the trial judge said at para. 51:

The Crown has a duty to ensure a fair process and that means it cannot knowingly embark upon a prosecution based upon an investigation that is inherently deficient. It is unfair to expect the accused person to take on the task of completing the investigation in order to make full answer and defence. While the Crown is not obliged to go on a fishing expedition at the behest of the accused it cannot stand idly by when the defendant raises the possibility of a real deficiency in the investigation. It should follow that the Crown’s duty to investigate can only be activated when the deficiency raised by the defence is real and not fanciful or speculative. [Emphasis added.]

[27] When applying the above principles, the trial judge observed that the Crown had decided that it would not pay for a second audit and that Mr. Kadrie was not willing to pay for the audit demanded by the defence. She continued at para. 74:

Neither position satisfies the need to provide sufficient information to the defendant to allow him to present his defence. In these circumstances Mr. Darwish can never be in a position to defend himself. The only conclusion I can reach at this point is that his right to make full answer and defence has been compromised and therefore his right under s. 7 of the Charter to be tried in accordance with the principles of fundamental justice has been breached. [Emphasis added.]

[28] The trial judge held that the constitutional right to make full answer and defence includes the right to have the prosecution investigate any defences that are “not fanciful or speculative”. On this approach, the accused is constitutionally entitled to have the police pursue a line of investigation if the defence can show that there is a realistic possibility that pursuing that investigation will yield information that could assist the accused. This formulation of the right to make full answer and defence goes far beyond any description of that right previously recognized in the case law. It is unworkable in practice. Further, it is inconsistent with the philosophy underlying the criminal justice system.

[29] An accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her: R. v. Barnes, 2009 ONCA 432, at para. 1. Inadequacies in an investigation may lead to the ultimate failure of the prosecution, to a specific breach of a Charter right or to a civil remedy. Those inadequacies do not, however, in-and-of-themselves constitute a denial of the right to make full answer and defence.

[30] An accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target. As Hill J. put it in R. v. West, [2001] O.J. No. 3406 (S.C.), at para. 75, the defence cannot, through a disguised-disclosure demand, “conscript the police to undertake investigatory work for the accused”. See also: R. v. Schmidt (2001), 151 C.C.C. (3d) 74 (B.C.C.A.), at para. 19. That is not to say that the police and the Crown should not give serious consideration to investigative requests made on behalf of an accused. Clearly, they must. However, it is the prosecutorial authorities that carry the ultimate responsibility for determining the course of the investigation. Criminal investigations involve the use of public resources and the exercise of intrusive powers in the public interest. Responsibility for the proper use of those resources and powers rests with those in the service of the prosecution, and not with the defence.

[31] Nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences. The Crown’s disclosure obligation was recently described in R. v. McNeil, [2009] 1 S.C.R. 66. The court, at para. 22, reiterated the Crown’s obligation, subject to very limited exceptions, to make timely disclosure to an accused of all relevant material “in the possession or control of the Crown”. The Crown’s disclosure obligation will also require the Crown, in response to defence requests, to take reasonable steps to inquire about and obtain relevant information in the possession of some third parties. Charron J. described this aspect of the disclosure obligation at para. 49:

The Crown is not an ordinary litigant. As a minister of justice, the Crown’s undivided loyalty is to the proper administration of justice. As such, Crown counsel who is put on notice of the existence of relevant information cannot simply disregard the matter. Unless the notice appears unfounded, Crown counsel will not be able to fully assess the merits of the case and fulfil its duty as an officer of the court without inquiring further and obtaining the information if it is reasonably feasible to do so.

[32] I see a vast difference between requiring the Crown to take reasonable steps to assist an accused in obtaining disclosure of relevant material in the possession of a third party, and requiring the Crown to conduct investigations that may assist the defence. The former recognizes an accused’s right to relevant information and the practical advantage that the Crown may have over the defence when it comes to obtaining that information from some third parties. The latter would require the prosecution to effectively surrender control of the investigation to the defence, or ultimately face a stay of the criminal charges.

[33] The disclosure obligation rests on the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the “property” of the Crown, but is rather “the property of the public to be used to ensure that justice is done”: R. v. Stinchcombe, [1991] 3 S.C.R. 326, at p. 333 . This rationale fully justifies the broad disclosure obligations imposed on the prosecution with respect to material that is in existence. It does not justify an approach that would permit the defence to dictate the course of the investigation to prosecutorial authorities.

[34] The distinction between the right to the disclosure of the fruits of an investigation and a right to demand an additional investigation is made clear in R. v. Daley, 2008 BCCA 257. In Daley, the complainant in a sexual assault case had been examined following the assault by a nurse. The results of that examination were placed in a “sexual assault kit”. The police preserved the kit, but did not attempt to have the samples it contained forensically examined. Disclosure of the kit was made to the defence. The defence argued that, as the samples were potentially exculpatory, the Crown was obliged not only to disclose their existence to the defence, but also to have the necessary forensic tests performed.

[35] The British Columbia Court of Appeal unanimously rejected this submission, stating at para. 15:

The Crown’s obligation was to disclose what could be inculpatory or exculpatory evidence. It did so. Once the appellant had knowledge of the existence of the kit, it was open to him to have it examined and he could easily have done so. He evidently chose not to. [Citations omitted.]