Charter Rights · Defense

Disclosure Rights: The Door Opens a Little Bit Wider

Dollarphotoclub_11685060Early on an August morning, at 1:52 am, Constable Boldirev pulled Mr. Mohamed Hamed over for failing to signal his lane change. Constable Boldirev smelled marijuana and observed flakes of marijuana inside the vehicle. Constable Boldirev then arrested Hamed for possession of marijuana, punched Hamed twice in the head, and put Hamed in the police cruiser.[1]

During the arrest and search of Hamed’s car, Constable Boldirev communicated over the radio with the dispatch center and two other officers: Constable Keenan and Constable Nip. Neither officer took notes at the scene but later prepared a report that the Crown disclosed to the defense. The Crown did not, however, disclose the radio recordings between the officers during Hamed’s arrest.[2] Does the defense have a right to this evidence?

The Crown’s collection of evidence against the accused begins the moment the Crown formally charges the accused with a criminal offense. Police notes, physical evidence, and witness testimony—the Crown takes possession of it all as they work to build their case against the accused. But the evidence against the accused is not the property of the Crown or the police; it is public property and the Crown must use it to pursue justice, not a guilty verdict.[3] And rightfully so. Contrary to common belief, the Crown prosecutor’s role is not to convict the accused but rather to pursue justice in the public interest:

The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness, and the justness of judicial proceedings.[4]

The right to life, liberty, and security of the person—protected by section 7 of the Charter—includes the accused’s right to know the case against them so they can fully defend themselves against criminal allegations.[5] This right is central to our criminal justice system. Without it, we risk convicting innocent people. So in R v Stinchcombe, the Supreme Court held that section 7 of the Charter protects the accused’s right to disclosure,[6] making the Canadian prosecutor’s disclosure obligations the most onerous of any common law jurisdiction in the world.[7]

The obligation to disclosure evidence is squarely on the Crown. The Crown, harnessing the power of the State to pursue justice, must share the fruits of their investigation with the defense to level the playing field and ensure the accused has a fair trial.[8] The defense has no obligation to help the Crown produce evidence for disclosure, nor does the defense have an obligation to disclose their strategy to the Crown.[9]

But the Crown does not have to disclose everything. The Crown can exclude information that is “clearly irrelevant” from disclosure.[10] In the early stages of criminal prosecution, however, the relevance of evidence is not always clear and is highly contextualized. Facts are relevant to other facts; alone, they can appear meaningless or “clearly irrelevant”.[11] While the Crown cannot, and should not, assess relevance based on every possible defense theory,[12] the evidence’s lack of contextualization means that the Crown may exclude evidence below the “clearly irrelevant” threshold.[13] And to further complicate things, the Crown has no obligation to tell the defense what it excludes.[14]

In Hamed’s case, the Crown exercised this discretion. It decided that the radio recordings of the conversation between Constable Boldireve and the dispatch center were clearly irrelevant and excluded the recordings from the defense’s disclosure package.[15]

The Crown’s disclosure obligation only includes evidence in the Crown’s control.[16] So, in Hamed’s case, the Crown disputed the existence of any radio recordings of communications between Constable Boldireve and Constables Keenan and Nip.[17] And an expert witness confirmed that the only way to find out if any radio conversations between the offers took place was to have someone specifically look for these conversations in the recording database.[18]

Where the Crown denies that evidence exists, the defense must prove that there is further non-disclosed, materially-relevant evidence.[19] This puts the defense in an impossible situation. When the defense brings a motion for disclosure, it asks the court to disclose information that could be relevant to its case. The defense cannot argue the evidence’s specific relevance to their case because, without disclosure, they do not know what this evidence is or how it will affect their case—a classic catch-22 scenario.[20]

In Hamed’s case, the defense sought to bring a Charter application regarding the nature of Hamed’s arrest and detention and argued that the radio communications between officers at the time of Hamed’s arrest could be essential evidence. And Justice Bourgeois agreed.

Justice Bourgeois found that given the sequence of events—the nature of the allegations, the violent interaction between the arresting officer and Hamed—and the arrest’s short time-frame, any communications between the officers could not be characterized as clearly irrelevant.[21] More importantly, Justice Bourgeois found that radio communications between the officers represent the best available evidence because the communications were contemporaneous to the events and, therefore, more accurate than reports produced from it.[22]

While Justice Bourgeois’ decision in Hamed’s case does will not require the Crown to disclose radio communications between officers in every case, it is a significant milestone. It recognizes the Catch-22 scenario the defense faces when bringing a disclosure motion—arguing for the relevance of evidence it has never seen—and opens the door for broader Crown disclosure obligations. Importantly, Justice Bourgeois imposed a positive obligation on the Crown to obtain police radio communication evidence that was not in the Crown’s possession. And while this positive obligation will cost a few hours of time and resources, the accused’s right to fully defend themselves outweighs this inconvenience.

[1] R v Hamed, (7 November 2016), Ottawa 15-5722 (Ont Prov Ct) at para 2.

[2] Ibid at paras 3-6, 9.

[3] R v Stinchcombe, [1991] 3 SCR 336 at 333, 8 CR (4th) 277, 14 WCB (2d) 266.

[4] R v Boucher, [1955] SCR 16 at 24; See also Attorney General, “Crown Policy Manual” (2005), Minister of the Attorney General.

[5] Charkaoui v. Canada (Citizenship and Immigration), 2007 SCC 9 at para 21, 1 SCR 350.

[6] R v Stinchcombe, [1991] 3 SCR 336, 8 CR (4th) 277, 14 WCB (2d) 266.

[7] Hon Marc Rosenberg, “Twenty-Five Years Later: The Impact of the Canadian Charter of Rights and Freedoms on the Criminal Law” (2009) 45(2) Supreme Court L Rev.

[8] Solomon Friedman, “Full Disclosure Rules Prevent ‘Trial by Ambush’”, Firearms Law Canada (25 June 2012).

[9] R v Stinchcombe, [1991] 3 SCR 336 at 333, 8 CR (4th) 277, 14 WCB (2d) 266.

[10] Ibid.

[11] Loretta Colton, “R v Stinchcombe: Defining Disclosure” (1995) 40 McGill L J 525 at 533.

[12] Brian Gover, “Stinchcombe: Bad Case, Good Law?” (1992) 8(4) CR 307 at 308.

[13] Loretta Colton, “R v Stinchcombe: Defining Disclosure” (1995) 40 McGill L J 525 at 534.

[14] Ibid.

[15] R v Hamed, (7 November 2016), Ottawa 15-5722 (Ont Prov Ct) at para 9.

[16] R v Chaplin, [1995] 1 SCR 727.

[17] R v Hamed, (7 November 2016), Ottawa 15-5722 (Ont Prov Ct) at para 11.

[18] Ibid.

[19] R v Chaplin, [1995] 1 SCR 727.

[20] Loretta Colton, “R v Stinchcombe: Defining Disclosure” (1995) 40 McGill L J 525 at 534.

[21] R v Hamed, (7 November 2016), Ottawa 15-5722 (Ont Prov Ct) at para 15.

[22] Ibid at para 22.

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