If there is a bail hearing and the allegations are murder, when does the accused receive bail and how long does it take? In our tradition bail is granted in such situations in the usual course of events because it is our expectation that the defendant must have an opportunity to prepare a full answer and defense to the charges. It is within the expectation of our jurisprudence that he should be granted bail and bail will be granted with conditions involving curfews and the locations where he is to live.
If there is a bail hearing and the allegations are murder, when does the accused receive bail and how long does it take? In our tradition bail is granted in such situations in the usual course of events because it is our expectation that the defendant must have an opportunity to prepare a full answer and defense to the charges. It is within the expectation of our jurisprudence that he or she should be granted bail and bail will be granted with conditions involving curfews and the locations where he or she is to live.
See R. v. Stinchcombe for more on this.
R. v. Stinchcombe, [1991] 3 S.C.R. 326
William B. Stinchcombe Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Stinchcombe
File No.: 21904.
1991: May 2; 1991: November 7.
Present: La Forest, L'Heureux‑Dubé, Sopinka, Gonthier, Cory, McLachlin and Iacobucci JJ.
on appeal from the court of appeal for alberta
Criminal law ‑‑ Evidence ‑‑ Crown's obligation to make disclosure to defence ‑‑ Witness favourable to accused interviewed by police ‑‑ Crown not calling witness and refusing to produce statements obtained ‑‑ Whether Crown obliged to disclose statements.
The accused, a lawyer, was charged with breach of trust, theft and fraud. A former secretary of his was a Crown witness at the preliminary inquiry, where she gave evidence apparently favourable to the defence. After the preliminary inquiry but prior to trial, the witness was interviewed by an RCMP officer and a tape‑recorded statement was taken. Later, during the course of the trial, the witness was again interviewed by a police officer and a written statement taken. Defence counsel was informed of the existence but not of the content of the statements. His requests for disclosure were refused. During the trial defence counsel learned conclusively that the witness would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the contents of the statements to the defence. The trial judge dismissed the application. The trial proceeded and the accused was convicted of breach of trust and fraud. Conditional stays were entered with respect to the theft counts. The Court of Appeal affirmed the convictions without giving reasons.
Held: The appeal should be allowed and a new trial ordered.
The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession 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. The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case.
Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial.
Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied.
Crown counsel was not justified in refusing disclosure here on the ground that the witness was not worthy of credit: whether the witness is credible is for the trial judge to determine after hearing the evidence. The trial judge ought to have examined the statements. Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced.
Cases Cited
Referred to: Cunliffe v. Law Society of British Columbia (1984), 40 C.R. (3d) 67; Savion v. The Queen (1980), 13 C.R. (3d) 259; R. v. Bourget (1987), 56 C.R. (3d) 97; Boucher v. The Queen, [1955] S.C.R. 16; Marks v. Beyfus (1890), 25 Q.B.D. 494; R. v. Scott, [1990] 3 S.C.R. 979; Bisaillon v. Keable, [1983] 2 S.C.R. 60; Solicitor General of Canada v. Royal Commission of Inquiry (Health Records in Ontario), [1981] 2 S.C.R. 494; Dersch v. Canada (Attorney General), [1990] 2 S.C.R. 1505; Lemay v. The King, [1952] 1 S.C.R. 232; R. v. C. (M.H.), [1991] 1 S.C.R. 763, aff'g (1988), 46 C.C.C. (3d) 142; Caccamo v. The Queen, [1976] 1 S.C.R. 786; Piché v. The Queen, [1971] S.C.R. 23; Rothman v. The Queen, [1981] 1 S.C.R. 640; McInroy v. The Queen, [1979] 1 S.C.R. 588; R. v. Mannion, [1986] 2 S.C.R. 272.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, s. 7.
Criminal Code, R.S.C. 1970, c. C‑34, ss. 294(a), 296, 338(1)(a).
Criminal Code, R.S.C., 1985, c. C‑46, ss. 334(a), 336, 380(1)(a), 482, 603.
Criminal Justice Act 1967 (U.K.), 1967, c. 80.
Authors Cited
Bench and Bar Council of Ontario. Special Committee on Preliminary Hearings. Report of the Special Committee on Preliminary Hearings. Toronto: Bench and Bar Council of Ontario, 1982.
Canada. Law Reform Commission. Report 22. Disclosure by the Prosecution. Ottawa: Minister of Supply and Services Canada, 1984.
Canada. Law Reform Commission. Working Paper 4. Criminal Procedure: Discovery. Ottawa: Information Canada, 1974.
Nova Scotia. Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1, Findings and Recommendations. Halifax: The Commission, 1989.
APPEAL from a judgment of the Alberta Court of Appeal affirming the judgment of Brennan J. sitting without a jury convicting the appellant of breach of trust and fraud. Appeal allowed.
William E. Code, Q.C., and John Kingman Phillips, for the appellant.
Daniel M. McDonald, Q.C., and Bruce R. Fraser, Q.C., for the respondent.
//Sopinka J.//
The judgment of the Court was delivered by
Sopinka J. -- This appeal raises the issue of the Crown's obligation to make disclosure to the defence. A witness who gave evidence at the preliminary inquiry favourable to the accused was subsequently interviewed by agents for the Crown. Crown counsel decided not to call the witness and would not produce the statements obtained at the interview. The trial judge refused an application by the defence for disclosure on the ground that there was no obligation on the Crown to disclose the statements. The Court of Appeal affirmed the judgment at trial and the case is here with leave of this Court.
1. Facts
The appellant was a Calgary lawyer charged with appropriating certain financial instruments from a client, one Jack Abrams. The indictment charged thirteen counts of criminal breach of trust contrary to s. 296 of the Criminal Code, R.S.C. 1970, c. C-34 (now s. 336), thirteen counts of theft contrary to s. 294(a) (now s. 334(a)) of the Code, and one count of fraud contrary to s. 338(1)(a) (now s. 380(1)(a)) of the Code. The trial in the Alberta Court of Queen's Bench was before Brennan J. without a jury.
The Crown alleged that the appellant had wrongfully appropriated property which he held in trust for Abrams. The defence did not contest the receipt of funds by the appellant. The defence did contend, however, that despite Stinchcombe's formal status as trustee of the property, Abrams had in fact made Stinchcombe his business partner. Under this theory, Stinchcombe had acted as he was legally entitled to act. At issue therefore was the actual, as opposed to the formal, nature of the relationship between the two men.
Patricia Lineham is a former secretary of Mr. Stinchcombe. She was a Crown witness at the preliminary inquiry. There, she gave evidence which was, apparently, very favourable to the defence regarding the conduct of Abrams. The precise content of this testimony was not before the trial judge and is not in the record. Lineham was not listed on the indictment, but was subpoenaed by the Crown.
After the preliminary inquiry but prior to the trial, Lineham was interviewed by an RCMP officer. A tape-recorded statement was taken. Crown counsel informed defence counsel of the existence but not the content of this statement. A request for disclosure was refused. Later, during the course of the trial, Lineham was again interviewed by a police officer and a written statement taken. Again, though defence counsel was advised of the existence of the statement, a request for disclosure was refused. Crown counsel also indicated that he would not be calling Lineham as she was not worthy of credit.
It was not until the third day of the trial that defence counsel learned conclusively that Lineham would not be called by the Crown. At this time, he moved before the trial judge for an order that (i) the Crown call the witness, or (ii) the Court call the witness, or (iii) the Crown disclose the contents of the statements to the defence. A review of the record makes it clear that defence counsel was pressing for access to, or production of, both the tape-recorded and written statements and was not pressing the alternative requests. In support of this motion, counsel for the defendant indicated that Ms. Lineham refused to speak to him or his staff when they attempted to interview her about the contents of the statements. Crown counsel did not provide any basis for resisting production other than to say that in his view the potential witness was not worthy of credit.
The trial judge dismissed the application. Brennan J. ruled that under the circumstances there was no obligation on the Crown to call the witness and that there was no obligation on the Crown to disclose the contents of the statements. The trial proceeded, and the accused was found guilty of all twenty-seven counts charged. A conditional stay was entered with respect to the thirteen theft counts. The Alberta Court of Appeal dismissed the appeal from conviction without issuing reasons. Leave to appeal to this Court was granted on the disclosure issue.
During argument before this Court, an application was made by the Crown to adduce the statements and the tape as fresh evidence. This application was rejected. The principal basis for the rejection was that at this stage it would be impossible to determine whether the statements would have been material to the defence if produced at trial.
2. Crown's Obligation to Disclose
The circumstances which give rise to this case are testimony to the fact that the law with respect to the duty of the Crown to disclose is not settled. A number of cases have addressed some aspects of the subject. See, for example, Cunliffe v. Law Society of British Columbia (1984), 40 C.R. (3d) 67 (B.C.C.A.); Savion v. The Queen (1980), 13 C.R. (3d) 259 (Ont. C.A.); R. v. Bourget (1987), 56 C.R. (3d) 97 (Sask. C.A.). No case in this Court has made a comprehensive examination of the subject. The Law Reform Commission of Canada, in a 1974 working paper titled Criminal Procedure: Discovery (the "1974 Working Paper") and a 1984 report titled Disclosure by the Prosecution (the "1984 Report"), recommended comprehensive schemes regulating disclosure by the Crown but no legislative action has been taken implementing the proposals. Apart from the limited legislative response contained in s. 603 of the Criminal Code, R.S.C., 1985, c. C-46, enacted in the 1953-54 overhaul of the Code (which itself condensed pre-existing provisions), legislators have been content to leave the development of the law in this area to the courts.
Production and discovery were foreign to the adversary process of adjudication in its earlier history when the element of surprise was one of the accepted weapons in the arsenal of the adversaries. This applied to both criminal and civil proceedings. Significantly, in civil proceedings this aspect of the adversary process has long since disappeared, and full discovery of documents and oral examination of parties and even witnesses are familiar features of the practice. This change resulted from acceptance of the principle that justice was better served when the element of surprise was eliminated from the trial and the parties were prepared to address issues on the basis of complete information of the case to be met. Surprisingly, in criminal cases in which the liberty of the subject is usually at stake, this aspect of the adversary system has lingered on. While the prosecution bar has generally co-operated in making disclosure on a voluntary basis, there has been considerable resistance to the enactment of comprehensive rules which would make the practice mandatory. This may be attributed to the fact that proposals for reform in this regard do not provide for reciprocal disclosure by the defence (see 1974 Working Paper at pp. 29-31; 1984 Report at pp. 13-15; Marshall Commission Report, infra, Vol. 1, at pp. 242-44).
It is difficult to justify the position which clings to the notion that the Crown has no legal duty to disclose all relevant information. The arguments against the existence of such a duty are groundless while those in favour, are, in my view, overwhelming. The suggestion that the duty should be reciprocal may deserve consideration by this Court in the future but is not a valid reason for absolving the Crown of its duty. The contrary contention fails to take account of the fundamental difference in the respective roles of the prosecution and the defence. In Boucher v. The Queen, [1955] S.C.R. 16, Rand J. states, at pp. 23-24:
It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime. Counsel have a duty to see that all available legal proof of the facts is presented: it should be done firmly and pressed to its legitimate strength but it must also be done fairly. The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility. It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.
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