arge number of offences of break, enter and theft alleged to have been committed over a five-year period. Prior to trial, the accused made written requests ...whether either of the accused were named as primary or secondary targets in any undisclosed authorizations to intercepted private communications. The provincial Crown informed the accused that there were no provincial wire-tap authorizations in effect pertaining to the particular investigation during the time-period in question. The provincial and federal Crown refused to confirm or deny the existence of any other authorizations. As a result of this refusal, the accused applied for an order directing the Crown to comply with the request. At the hearing, the accused admitted that they had no evidence to demonstrate the relevance to their defence of the information sought. The trial judge held that the onus was on the Crown to provide full disclosure and that the Crown had not established that it was impractical to answer the accuseds' request. The Crown asked the trial judge for the opportunity to call evidence demonstrating that the answers to the questions sought were irrelevant. The trial judge refused to permit the calling of evidence and ordered a judicial stay of proceedings. An appeal by the Crown to the Alberta Court of Appeal was allowed and a new trial ordered.
The judgment of the Court by Sopinka J.:
While the Crown is under a general duty to disclose all information, whether inculpatory or exculpatory, it is not required to disclose evidence that is beyond the control of the prosecution, clearly irrelevant or privileged. The obligation on the Crown to disclose all relevant and non-privileged evidence requires that the Crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure. Failure to comply with this initial and continuing obligation to disclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitute a serious breach of ethical standards. In situations in which the existence of certain information has been identified, but the Crown has refused to disclose it, the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. The trial judge must afford the Crown an opportunity to call evidence to justify such allegation of non-disclosure. Where, as in this case, the existence of the material which is alleged to be relevant is disputed by the Crown, before anything further is required, the defence must establish a basis which would enable the presiding judge to conclude that there is in existence further material which is potentially relevant. Relevance means that there is a reasonable possibility that the material will be useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce
...If the defence meets the threshold test, the Crown must then justify a continuing refusal to disclose and, if necessary, be given the opportunity to call evidence on that issue. In cases involving confidential issues, it may be appropriate for the judge to order an in camera hearing. In this case, the accused failed to establish a basis for the existence of wire-tap authorizations or evidence derived therefrom which was potentially relevant to making full answer and defence. The Crown had already stated that no wire-tap had been authorized as part of the investigation leading to the charges. Reference to the possible existence of other wire-taps and their connection to the issues in this case was purely speculative and mere conjecture.
limits of Crown disclosure...whether an accused facing trial on a criminal
charge is entitled to know if he or she has been named as a primary or secondary
target in any wire-tap