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Summary TEXT BOOK NOTES: Christopher Nowlin and Joan Brockman, An Introduction to Canadian Criminal Procedure and Evidence, 6th ed (Toronto: Nelson, 2017).

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Crim 330

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Simon Fraser University (SFU )

Christopher Nowlin and Joan Brockman, An Introduction to Canadian Criminal Procedure and Evidence, 6th ed (Toronto: Nelson, 2017). Notes for the chapters from this book.

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WEEK 8
CHAPTER 6
Crown Disclosure
 Disclosure is that legalistic word for the information or evidence that police gather in their
criminal investigation which the Crown gives the accused person.
 Disclosure is the term that is used for the process of sharing information, such as evidence
collected in an investigation, between the Crown and the defence. (definition prof gave).
 In minor cases sometimes it is known as “particulars” or the “circumstances” which
might be given by phone or Mail to defense counsel or simply discuss between Crown
and defense.
 In Stinchcombe Case, Supreme Court of Canada suggested that accused has right to
disclosure under Section 7 of the charter because the right to make full answers and
defence is a principle of fundamental justice.
 Section 7 and 11(d) of the Charter provide an accused with a right to a fair trial.
 Accused will not make any statements until the crown has disclosed all the evidence to him
or her.
Full disclosure
 Before the case that is discussed above, Crown use to believe their disclosure is based upon
their discretion so as long as the exercise of the discretion was not abuse of process.
 To establish such an abuse the defence would have to show that there had been an affront
to “fair play and decency”.
 One indication of relevance is whether the information would be useful to the accused. The
information “can reasonably be used by the accused either in meeting the case for the
Crown, advancing a defence or otherwise in making a decision which may affect the conduct
of the defense such As for example whether to call evidence”, (Egger case), it is relevant and
account should disclose it to the accused.
 Despite calls for comprehensive Crown disclosure laws in Canada there are still very few
legislation governing such disclosures.
 In limited circumstances, Crown has discretion to delay disclosure where to disclose it
would jeopardize the safety of witnesses or a continuing investigation.
Police duty to disclose to Crown
 The crowd can only fulfill its Full disclosure obligation to the accused person if the police
have corollary duty “to disclose to the Crown the fruits of the investigations” (McNeil case).
 The Crown also has an obligation to make reasonable inquiries of other Crown entities and
other third parties in appropriate cases.
 the main concern here is that Crown should provide accused and disclose all the evidence to
the accused and the defence counsel so accused right to make full answers is not
compromised.
Continuing obligation to disclose
 The crown has some discretion with the timing of disclosure if early disclosure would
jeopardize a witness or in some rare cases a continuing investigation.
 the Crown must provide witness statements either verbatim notes taken by police officers or
“will say” statement summarizing the evidence of witness may give.
 Statements by civilians who are going to be called as witness must also be disclosed

, If the Crown has failed to disclose relevant information at the time of trial the trial court can
order production and if necessary an adjournment so the defence counsel can review the
material (Dixon case).
 In this case Bjelland, 2009: Supreme Court of Canada stated that a trial judge should only
exclude evidence under section 24(1) for late disclosure in exceptional cases”
1) Where the late disclosure renders the trial process unfair and this unfairness cannot be
remedied through an adjournment and disclosure order or
2) where exclusion is necessary to maintain the integrity of the justice system.
Disclosure of relevant information held by third parties
 The crown's obligation to disclose the relevant contents of its file and the police file is
referred to as its “first party disclosure” obligation.
 The disclosure of 3rd party records that are relevant but beyond the possession or control of
the prosecutor under the first party disclosure obligation are governed by the common law
development by the Supreme Court of Canada in O'Connor case.
 For policy reasons application for third party records in sexual assault cases are governed
exclusively by Section 278.1 of the code.
 In McNeil the Supreme Court elaborated on so called O'Connor's application, these
applications must be accompanied by an affidavit showing that the records are likely relevant
to the case.
 To determine judge decides whether the records are likely relevant to the accused case.
That is the judge ask is there “a reasonable possibility that the information is logically
probative to an issue at trial or the competence of a witness to testify” McNeil case. If so
the judge may order the records produced for inspection by the court.
 The next step is for the judge to decide whether the records can reasonably be used by
the defense. The court described the second state test is similar to the obligation on the
Crown to produce records under Stinchcombe case. This means that redactions can be
made to protect privacy interest as long as they do not affect the accused right to make
full answers and defense.
 O'Connor applications occur when evidence that is not privileged is in the hands of a
third party and the defence would like it disclosed. In sexual crime cases, a separate
application process applies that is governed by s. 278.1 of the Code (*I've got to double
check that number...*). But it’s essentially the same test
Failure to disclose as a ground of appeal
 If the non-disclosure is established by the accused in appeal “the accused bears additional
burden of demonstrating on balance of probabilities that the right to make full answer and
defence was impaired as a result of the failure to disclose” Dixon case.
 The accused must show that there is a “reasonable possibility that non-disclosure
affected the outcome of the trial or the overall fairness of the trial process (Dixon).
 A judicial stay proceeding considered by the court to be an extraordinary remedy should
only be granted where the accused has demonstrated “irreparable prejudice” to the right to
make full answer and defence.
 In considering the overall fairness of the trial the court must examine defense counsel's
diligence in obtaining disclosure, defense must “diligently pursue disclosure”, so in the
Dixon case this was the reason The Supreme Court of Canada used to refuse the appeal
because the defense did not diligently pursue disclosure.

, In assessing the impact that the undisclosed evidence might have on the trial the accused
must 1st “demonstrate that there is reasonable possibility that the verdict might have been
different but for the crown's failure to disclose all of the relevant evidence”. Taillefer case
 The task for appellate court is to determine whether “there was a reasonable possibility that
the jury, with the benefit of all of the relevant evidence, might have had a reasonable doubt
as to the accused guilt” (Taillefer case).
 Taillefer case: Even if the accused is unsuccessful in this first stage, the accused “must
then inquire as to whether there is a reasonable possibility that the failure to disclose
affected the overall fairness of the trial”, this second stage includes examining the possible
uses that accused might have made of the undisclosed evidence in mounting a defense (for
example evidence that might have allowed the accused to impeach a Crown witness).
 In 2007 the Supreme Court of Canada found “it unnecessary to consider the issue of post-
conviction disclosure”, because it was entirely moot, and therefore the issue of post-
conviction disclosure was “left for another day” (Trotta).
Defense disclosure
 The Supreme Court of Canada confirmed that defense has no obligation to assist the
prosecutor in the case against the accused.
 On page 164 of the textbook their arguments for and against defense disclosure, make sure to
read this before final exam.
 There are very limited circumstances in which accused person must disclose elements of
their defence such as when accused person wishes to tender expert evidence. OR defence
have evidence of a crime (where they could commit the crime of obstructing justice if they
fail to disclose it (Murrey case).
 Section 657.3 (3) requires both the Crown and the accused to give each other 30 days’ notice
where they plan to call an expert witness.
 The notice must include the name of the proposed witness, and the witness is area of
expertise, and qualification. in addition the Crown must provide the accused with a copy
of the exports report (if one is prepared) or a summary of the opinion evidence “within a
reasonable period before the trial” (s.657(3)(C).
 Defense disclosure would not violate and accused rights under Section 7 and 11(d) of the
charter.
Evidence in possession of defense counsel
 Today it is quite clear that defense counsel who concealed evidence of a crime or themselves
committing the crime of obstructing justice.
 In the wake of Ghomeshi's acquittal, Parliament introduced section 278.92 in the Code,
which requires the defence to make an application to the court if they'd like to introduce a
record in their possession that the Crown is not aware of. The provision creates a reverse
onus provision, where such evidence is not admissible unless the judge determines it has
"significant probative value" that is not "outweighed by the prejudice" it causes.
Her lecture
Remedies for lack of disclosure prior to or during the trial include: 1) an order for Crown to
disclosure; 2) an adjournment after disclosure so that the accused has time to deal with the
information. The Supreme Court of Canada decided that exclusion of the evidence for lack of
disclosure is limited to exceptional circumstances (see discussion of Bjelland in Nowlin and
Brockman). What are these circumstances?

, Another possible remedy for a failure to disclose is a judicial stay, where the proceedings are
discontinued. A stay is an “extraordinary remedy,” and will only be granted where the accused
has demonstrated “irreparable prejudice” to the right to make full answer and defence.
If an accused is convicted and then it is revealed that there was a delay in disclosure, and
that non-disclosure affected the outcome or the overall fairness of the trial, the appellate court
can order a new trial. In considering the overall fairness of the trial, the court must examine
defence counsel’s diligence in obtaining disclosure. Defence counsel must “diligently pursue
disclosure” (at para. 37).
The SCC in Stinchcombe LAW: put a continuing disclosure duty on the Crown unless it would
jeopardize an investigation or the safety of a witness.
WEEK 9
Chapter 7 and 8
Jurisdiction: is the term that refers to the limits of a court's power.
Classification of offenses
 Offenses in Canada are divided into three categories: indictable, summary conviction an
hybrid or dual offenses. Person charged with criminal offenses will be tried accordingly to
one of two procedures: the procedure set out for indictable offenses OR the procedures set
out for summary conviction.
 These provisions govern how the trial will be conducted, available appeal procedures,
and sentencing options. The court in which accused is tried is determined by the
classification of the offence and in some cases by the accused election.
 Provincial court (where judges are appointed by the provincial government) or a Superior
Court of criminal jurisdiction (where judges are appointed by the federal government).
 Nunavut is the only province in Canada which has unified criminal justice system which
means they have the same provincial and superior court.
Indictable offences
 These are offenses that are more serious and only the federal government can create this type
of offenses. The maximum penalties usually (are 2, 5, 10 or 14 years or life imprisonment)
are typically set out in the charging section.
 If no term of imprisonment is specified in a charging provision, section 743 of the Code
specifies the accused is liable to a term of imprisonment for less than five years.
 Unlike summary conviction offences, there is no time limit on when charges can be laid for
indictable offences.
Summary conviction offences
 Summary conviction offenses are the less serious offenses and can be created by both the
federal and provincial governments.
 Punished by $5000 or six month sentence OR both (s.787(1)).
 For summary conviction offences, charges must be laid within 12 months of when the subject
matter of the proceedings arise.
Hybrid or dual offenses (MOST common offences in the Code)
 These offences emerged in England in late 1800s
 These are offences for which the Crown has the option of proceeding either by summary
conviction or by indictment, and ONLY the federal government can create hybrid offenses.
 Bill C-75 turned 118 offences that used to be indictable offences into hybrid offences, so as
to increase flexibility for prosecutors, reduce rates of incarceration, and speed up backlog in
the court system.

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Summary

Summary TEXT BOOK NOTES: Christopher Nowlin and Joan Brockman, An Introduction to Canadian Criminal Procedure and Evidence, 6th ed (Toronto: Nelson, 2017).

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