R. v. Stinchcombe

68 C.C.C. (3d) 1

Facts

SCC

several counts of criminal breach of trust, theft and fraud...at preliminary inquiry, the accused's secretary gave evidence which was favourable to the defence, witness was interviewed by the police and a tape-recorded statement was taken, Crown informed defence counsel of the existence but not the content of this statement...request for disclosure prior to trial was refused, trial judge holding that there was no obligation on the Crown to call the witness and there was no obligation on the Crown to disclose the contents of the statements

Issue

SCC

duty to disclose all relevant information in possession of Crown, statements of persons not intended to be called as witnesses by prosecution, discretion to withhold

Reasons

SCC

the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution ...discretion, which will be subject to review, should extend to such matters as excluding what is clearly irrelevant, withholding the identity of persons to protect them from harassment or injury, or to enforce the privilege relating to informers. The discretion would also extend to the timing of disclosure in order to complete an investigation, counsel for the Crown has a duty to respect the rules of privilege. In the case of informers the Crown has a duty to protect their identity ...discretion must also be exercised with respect to the relevance of information. While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant. Discretion of trial judge on a review whether the non-disclosure is justified by the law of privilege [or] relevance, ...may not apply at all or may apply with less impact in summary conviction offences

Facts

SCC

Crown produced a copy of the statement and a transcript of the tape and explained the absence of the originals. That explanation did not reveal any misconduct on the part of the Crown

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