R. v. Arsenault

93 C.C.C. (3d) 111

Facts

NB CA

two counts of sexual interference under s. 151 of the Criminal Code... both the police and representative of the Ministry of Health and Community Services were involved in investigation... representative of the ministry was in attendance during court proceedings. Crown disclosed three video tapes but refused to let the defence copy them. An order was then made that the accused make copies at his own expense. trial commenced .... After the complainants had testified, Crown disclosed that two additional video tapes had been found in the possession of the Ministry of Health and Community Services. Crown conceded that the video tapes could have affected the accused's strategy on cross-examination of the complainants and that, accordingly, a further adjournment would not be sufficient. The trial judge, rather than merely directing a mistrial, ordered a stay of proceedings... trial judge held that there was inordinate delay caused by the non-disclosure of evidence on the part of the Crown ... Crown appealed the stay.

Reasons

NB CA

The judgment of the court was delivered by Ryan J.A.: When Crown counsel takes charge of a case for the purpose of prosecution, counsel assumes a responsibility for the file and its contents extant and that which will become part of the file. Generally speaking, the material in the file will have been generated or compiled through a police investigation. When disclosure is demanded or requested, Crown counsel also has a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Crown counsel cannot be excused for any failure to make reasonable inquires when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation. If Crown counsel is denied access to another agency's file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of the accused. In this case, not only were representatives of the ministry in court from time to time, they participated in the investigation with the police from the very beginning. In preparation for the trial itself Crown counsel had a duty to the public to be familiar with all aspects of the case, favourable and unfavourable from all reasonable sources. In this case, it was reasonable to require Crown counsel to make timely inquires of the ministry for disclosure of evidence relevant to the charge. Counsel failed to do that and the stay of proceedings was appropriate. In holding that the Gingras case was readily distinguishable, the trial judge noted the joint investigation by the police and personnel from the Health and Community Services Department. He said: This is a case where both the employees of the Department of Health and Community Services and the police were jointly involved in the investigation of this charge.

Another Issue

NB CA

Duty in a criminal case for the disclosure of evidence in the possession of a provincial government department other than that of the Attorney-General

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