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Criminal - Disclosure. R. v. Maric
In R. v. Maric (Ont CA, 2024) the Ontario Court of Appeal considered criminal evidence disclosure doctrine, and it's interaction with Charter s.7 ['Life, Liberty and Security of the Person']:[171] In R. v. Bradford (2001), 2001 CanLII 24101 (ON CA), 52 O.R. (3d) 257 (C.A.), at para. 4, application for leave to appeal dismissed, [2001] S.C.C.A. No. 131, citing R. v. B(F.C.) (2000), 2000 NSCA 35 (CanLII), 142 C.C.C. (3d) 540 (N.S.C.A.), at p. 547, leave to appeal refused, [2000] S.C.C.A. No. 194, this court affirmed that:a) The Crown has an obligation to disclose all relevant information in its possession.
b) The Crown’s duty to disclose gives rise to a duty to preserve relevant evidence.
c) There is no absolute right to have originals of documents produced. If the Crown no longer has original documents in its possession, it must explain their absence.
d) If the explanation establishes that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached.
e) In its determination of whether there is a satisfactory explanation by the Crown, the court should consider the circumstances surrounding its loss, including whether the evidence was perceived to be relevant at the time it was lost and whether the police acted reasonably in attempting to preserve it. The more relevant the evidence, the more care that should be taken to preserve it.
f) If the Crown does not establish that the file was not lost through unacceptable negligence, there has been a breach of the accused’s s. 7 rights. ....
[173] .... The bottom line is, the police have no duty to obtain, disclose or preserve records that are in the possession of another: McNeil, at para. 22; R. v. Pascal, 2020 ONCA 287, 387 C.C.C. (3d) 236, at para. 103, leave to appeal refused, [2020] S.C.C.A. No. 214. ... . R. v. Ruthowsky
In R. v. Ruthowsky (Ont CA, 2024) the Ontario Court of Appeal dismissed an appellant's argument regarding late disclosure:[115] The right to disclosure is a component of the right to make full answer and defence. However, where an appellant raises non-disclosure or late-disclosure as a ground of appeal, the fact of late disclosure, without more, does not entitle the appellant to a remedy. The appellant must establish on a balance of probabilities that the late disclosure impacted their right to make full answer and defence. To discharge this burden, the appellant must show that there is a reasonable possibility that the non-disclosed or late-disclosed information affected the outcome at trial or the fairness of the trial process. The reasonable possibility must be grounded in reasonably possible uses of the non-disclosed or late-disclosed information or reasonably possible avenues of investigation that were foreclosed due to the non-disclosure or late-disclosure: R. v. Barra, 2021 ONCA 568, 157 O.R. (3d) 196, at paras. 138-144; R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244, at paras. 31-34. . Rossi v. OIPRD
In Rossi v. OIPRD (Div Court, 2024) the Divisional Court dismissed a JR challenging an OIPRD decision which upheld the dismissal of a police chief against their officers.
The court locates the duty to provide evidence disclosure to a defendant on the Crown, as supervised by the court - not on the police:Complaint #2: Police Disclosure Obligations
[30] The Applicant was charged with criminal harassment in connection with a separate incident. That charge was ultimately withdrawn by the Crown.
[31] The Applicant complains that police failed to meet their disclosure obligations to him, as an accused person in a criminal case. Disclosure was, he says, too slow, incomplete, and failed to meet the standards expected of police officers.
[32] The Respondent found that the obligation to make disclosure in a criminal case belongs to the Crown. Supervision of the performance of that obligation is in the jurisdiction of the criminal court in which the prosecution is taking place. Failures in the process of disclosure (substantive, temporal, or procedural) are generally matters for the criminal courts to address and would ordinarily not be a proper subject for disciplinary proceedings unless pursued on the basis of concerns raised by the Crown or findings in the criminal proceedings: absent those circumstances, the disclosure responsibility rests on the Crown and failures to meet that responsibility are addressed by the criminal courts. The Respondent’s conclusion on this issue is reasonable. . R. v. Marrone
In R. v. Marrone (Ont CA, 2023) the Court of Appeal reviews the CCC expert evidence disclosure requirements:(b) The Procedural Context for the Expert Report Issue
[48] Since the Crown intended to call expert evidence from Det. Lafleur, s. 657.3(3)(b) of the Code required it to deliver, within a reasonable period before trial, a copy of her report, or if no report was prepared, a summary of the opinion anticipated to be given by her and the grounds on which she based it. Although the Code does not specify what the report is required to disclose, a reasonable reading of the provision suggests that it cannot be less than what must be disclosed if there is no report (a summary of the opinion anticipated to be given by the expert, and the grounds on which it is based).
[49] If the requirements of s. 657.3(3)(b) of the Code are not met, s. 657.3(4) provides that the court, if requested, is to grant specific relief. That relief is an adjournment to allow time to prepare for cross-examination of the expert (although the length of the adjournment is not specified), ordering compliance with the requirement for a report or summary, and ordering witnesses to be recalled to give testimony related to that of the expert witness unless the court considers it inappropriate to do so.
[50] Sections 657.3(3) and (4) provide:(3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses,
(a) a party who intends to call a person as an expert witness shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by
(i) the name of the proposed witness,
(ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about that area of expertise, and
(iii) a statement of the qualifications of the proposed witness as an expert;
(b) in addition to complying with paragraph (a), a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party or parties
(i) a copy of the report, if any, prepared by the proposed witness for the case, and
(ii) if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based; and
(c) in addition to complying with paragraph (a), an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph (b).
(4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of any other party,
(a) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness;
(b) order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3)(b); and
(c) order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness’s testimony, unless the court considers it inappropriate to do so. . R. v. G.B.
In R. v. G.B. (Ont CA, 2023) the Court of Appeal considered a 'stay' as a remedy for alleged disclosure breaches:[20] The applicant’s second ground of appeal is that the trial judge erred in dismissing his request for a stay of the charges against him based on what he argued were disclosure failures of the Crown.
[21] The trial judge found that the Crown’s disclosure had not in every respect been timely and complete − rather, he termed it “sub-optimal”. But he found that prosecutorial misconduct had not been made out, and that the applicant had not been deprived of a fair trial or opportunity to make full answer and defence, because, for example, the late disclosure was still in time for use in cross-examination or was of little probative value.
[22] A stay is a remedy of last resort, to be granted only in the “clearest of cases” when no other remedy can address the harm: R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309, at paras. 30-31 and 36-40. The trial judge’s determination that no such harm was present here and thus to refuse a stay is entitled to deference on appeal: R. v. Graham, 2020 ONCA 692, at para. 18.
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