charged under s. 271(1)(a) of the Criminal Code with sexually assaulting A.R. and under s. 151(a) of touching her for a sexual purpose. On December 2, 1994, following numerous delays, a judge of the Provincial Court granted a stay of proceedings on both charges because of the prosecution's non-disclosure following a written request for disclosure on October 6, 1993. ... witness, Mrs. Judy Spencer, from the Mental Health Commission, was declared an expert with respect to functioning deficits. She was being examined in chief by the prosecutor when she referred to correspondence between her and the complainant and produced a thick file relating exclusively to the complainant. The witness referred to one interview with the complainant in 1991, 10 in 1992 and 15 in 1993. ...The trial judge granted a stay of proceedings. He held that the defence's written request for disclosure of the names and statements of professional people who had interviewed the complainant had been made in a timely manner.
By the Court: The trial judge held that there was no difference with respect to the requirement to produce therapeutic records as compared with investigative records. See O'Connor.
The trial judge held that some of the information in the file met the test of relevancy and materiality. He went on to find that the accused was prejudiced and that the only remedy in the circumstances was a stay of proceedings�.Sopinka J. said the obligation to disclose is not absolute but the Crown must err on the side of inclusion, although it need not include what is clearly irrelevant. He referred to Crown counsel's role as that of a Minister of Justice not an adversary and held that the obligation to disclose is a continuing one: see also R. v. Puddick (1865), 4 F. & F. 497, 176 E.R. 662, for a reference to the role of a Minister of Justice per Crompton J. at p. 499 F. & F., p. 663 E.R. All relevant information should be produced. The material must include not only that which the Crown intends to introduce into evidence but also that which it does not. No distinction should be made between inculpatory and exculpatory evidence...As stated earlier, the trial judge relied upon Stinchcombe with respect to the general principles of disclosure as well as those set out in the Arsenault case. ...In Arsenault, this court broadened the duty of Crown counsel to disclose because of counsel's unique position as having conduct of the case for the prosecution. In their roles as Ministers of Justice, counsel must not refuse or fail to disclose information intentionally or be wilfully blind to its existence. Crown counsel carry a responsibility to prepare diligently and with full knowledge of the case to be presented. Here, the existence of the information available for disclosure was accessible from the complainant, and perhaps other witnesses, in preparation for the trial. In this case, the Mental Health Commission employee took the witness stand carrying an imposing file. When the trial judge reviewed the file as requested he found adequate information in it that prejudiced the accused's right to present a full answer and defence. Even today its contents are known only to the trial judge. He was aware of the other avenues open to him but held that a stay was the ``only'' appropriate remedy in the circumstances.
In the case on appeal before us the last witness for the prosecution was in the witness-box. She was being cross-examined on a voir dire when the motion for a stay was granted. The prosecution invited the trial judge to review the witness's file. The judge did as requested and held that the information was relevant and material, that the accused was prejudiced in his ability to present full answer and defence and that a stay was the ``only'' appropriate remedy. ...The case comes within the exception in O'Connor in that the O'Connor case was just getting underway. Alternative remedies were available in O'Connor to relieve against the prejudice caused by the non-disclosure. That was not the case here.