Posted by Darryl Aarbo — filed in Fundamental Freedoms
The Canadian Charter of Rights and Freedoms, enacted in 1982, provides that one of our fundamental rights as Canadians is to life, liberty and security of the person and not to be deprived of those things without a good reason (paraphrasing).
In the criminal context, this provision has been interpreted to mean that a person charged with a crime has the right to make a full answer and defence to the allegations made against him or her. This right is meant to ensure that the innocent are not convicted.
In order to make a full answer and defence, the accused person has to have access to information about the allegations. It ensures that the accused receives a fair trial, that there is adequate opportunity to respond to the prosecution case and ultimately, that the final verdict is a reliable one.
The police will have conducted an investigation and obtained evidence, which is then provided to the prosecutors (also referred to as “the Crown”). There may also be evidence or information that the police have not collected that is relevant.
With respect to the information that is in the possession of the Crown, the obligation to provide the information to the accused person is triggered when a request for disclosure is made by the accused. The procedure for requesting disclosure will be different across Canada and an accused person will have to determine how to make the request in her or her area.
Once the request for disclosure is made, the Crown has an ethical and constitutional obligation to disclose all information in its possession or control, unless the information in question is clearly irrelevant or protected by a recognized form of privilege.
If the Crown is not in possession or control of information that the accused person feels is relevant, the accused person will have to obtain the information him or herself or ask a judge to order production of information that the accused cannot otherwise obtain. An accused person may also have to ask a judge for assistance if there is a dispute over whether information is relevant and/or protected by privilege.
Disclosure will typically contain a summary of facts, evidence and statements collected by the police as well as copies of the notes made by the police officers who were involved in the case. There may be videos from CCTV, copies of court orders, professional reports, etc., depending on the circumstances.
When reviewing disclosure it is important to consider what is not in the disclosure. For example, if there is reference to a witness but there is no witness statement then it may be prudent to request that a statement be provided. Even though disclosure is the Crown’s obligation, it is important that the accused person is diligent about asking for missing and additional information. If a request is made and the Crown does not comply, the court may in some circumstances find that the accused’s charter right has been breached and will grant the accused a remedy including what is called a “stay of proceedings”, which means that the prosecutor is not allowed to continue to prosecute the charges.
(R. v. O’Conner,  2 SCR 411, R. v. Stinchcombe, 1991 CanLII 45 (SCC))
By Jolene Lalonde of Aarbo Fuldauer LLP
Address: 3rd Floor, 1131 Kensington Road NW, Calgary, AB, T2N 3P4
Phone: (403) 571-5120