ACCESS TO CRIMINAL JUSTICE Divergent Trends in the Legal Profession DISCLOSURE REVISITED

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1 ACCESS TO CRIMINAL JUSTICE Divergent Trends in the Legal Profession November 29, 2002 DISCLOSURE REVISITED Faculty: Anne Malick, Q.C. Speaking Notes Access to Solicitor/Client Privilegd Information-McClure application Stinchcombe Crown has a duty to respect the rules of privilege and in its discretion, decline to disclose privileged information; an exercise of discretion to not disclose information is reviewable by the Court; therefore, existence of the information must be made known to defense; so that, defence can make application for disclosure of the privileged information. Access to Solicitor/Client Privileged Information Starting premise - quote from Crown Prosecutor, D. Murray Brown, Q.C., Dept. of Justice Saskatchewan, Disclosure Developments since Stinchcombe the Positive Obligation to Disclose, 2002 National Criminal Law Program: Only the strongest arguments are going to withstand judicial scrutiny. And even then, no privilege will protect relevant information from disclosure if that information is necessary for the defendant to make full answer and defense. It is a class privilege and so it is privileged per se, but must address the law in relation to privilege because have to convince a court that one societal value should give way to another. Smith and Jones (1999) 132 CCC (3d) 225- SCC opening the door - public interest trumped solicitor/client privilege; previous cases which dealt with the issue: R. v. Speid (1983), 8 CCC (3d)18 (Ont. C.A.) and R. v. Dunbar (1982), 68 CCC (2d) 13, (Ont. CA.) R. v. McClure (2001) 151 CCC (3d) 321 SCC- the McClure Application J.C., after reading about the charges of sexual conduct against accused, contacted police, gave statement and then sued civilly. Accused wanted access to lawyer s files (motivation). The lower

2 Page 2 court proceeded with an O Connor application to determine which right trumped - right to make full answer and defense or public safety. The SCC said not an O Connor type of application - the onus on the accused is much higher than full answer and defense onus in O Connor or S It is an innocence at stake standard. (The solicitor/client privilege having a much higher value than the privacy interest.) So now, it is not about the accused who has to make full answer and defense, it is about the innocent person who must be allowed to raise a reasonable doubt. The accused must show that access is necessary to establish innocence. To even have the court consider access - the threshold, the accused must show: the information goes to a core issue of guilt ; and without access, there is a genuine risk of wrongful conviction. It is a very high standard to meet. Accused has to establish that the privileged information is not available from any other sources (and remember those other sources don t have to be just as good other sources); and there is no other way to raise a reasonable doubt - which means if there is another unrelated or alternative defense, the standard has not been met and no access will be considered. If the accused gets by the threshold - i.e. establishes that it is an issue of innocence, the application will be considered at two stages. 1. The accused must provide an evidentiary basis that there exists a solicitor/client communication which could raise a reasonable doubt. 2. If the accused does that, the Judge then reviews the material to decide if the information is likely to raise a reasonable doubt (seems that only if the information goes to an element of the offence is it likely to raise a reasonable doubt. This, effectively, eliminates a whole range of information/evidence which would likely raise a reasonable doubt) If the Judge finds it is likely to raise a reasonable doubt, only that portion of the file which is necessary to raise a reasonable doubt will be ordered released. For a summary of the criticism of and unanswered questions from McClure see Michelle Fuerst article Solicitor/Client Privilege and Innocence At Stake: The New Battleground (2002

3 Page 3 National Criminal Law Program) and the articles therein noted. How will the test work? The Ontario Courts applied the test in R. v. Brown [2001] O.J. No The facts seemed tailor made for a successful application of the McClure Test. Brown charged with murder; Benson s ex girlfriend giving statement to police that Benson admitted to the murder and further that Benson had told lawyer Edward Greenspan who referred him to two other criminal lawyers to represent him and he told them as well. Evidence against Brown all circumstantial except for potential of a jail house informer saying he confessed (but no decision as to whether to call him). Judge Dambrot determined that the information is not available from any other source - that source must be capable of being admissible evidence (the evidence of girlfriend not admissible for truth and Benson not going to testify that he killed); and not able to raise a reasonable doubt any other way because without this information there was genuine danger of wrongful conviction. Moving from the threshold to the two stage test: 1. Found there exists information in the file that could raise a reasonable doubt. 2. Decided he would look at the file to find out if it is likely to raise a reasonable doubt.. The matter went directly to the Supreme Court of Canada on a section 40(1) appeal. SCC [2002] 162 CCC (3d) 257, seems the facts were not so tailor made as might have seemed to be the case. The SCC said that as to the threshold test: - Too early in the proceeding to say that not available from any other source and should wait at least until the end of the Crown s case to determine if the girlfriend s evidence would be admissible under a relaxation of the hearsay rule exception and also for a determination as to whether solicitor/client privilege waived by Benson by talking to the girlfriend. - SCC seem to accept Judge Dambrot s finding that the other source must be potentially substantively usable and reliable evidence. (Although there seems to be a rather tortuous process before determining whether the other source is or is not potentially usable. )

4 Page 4 The SCC roundly rejected Dambrot s interpretation of McClure in relation to the second part of the threshold test. Drambot found that a genuine danger of wrongful conviction is the test in determining whether the accused could raise a reasonable doubt in any other way. The SCC stated that the accused must show absolutely no other defense is available and that the solicitor/client communication would make a positive difference in strengthening the defense. In rejecting the genuine danger of wrongful conviction test, the SCC found that the weaker the Crown s case, the less likely the solicitor/client information will be accessed. (The Court s speculation on the weakness of the Crown case and the other defenses open to Brown is interesting - paragraphs 49 and 50.) In summary, the Court stated it is too early to decide the threshold issue and it can not be determined at least before the close of the Crown case and the matter was remitted back to the trial judge. However, the decision continues for another 20 pages. Timing of McClure Application At least at end of Crown case. (Does this practically mandate defense to make an application for a directed verdict application if McClure application is contemplated?) Easier if no jury but if there is a jury, the Judge can still assess the facts. If the Judge thinks the Crown has made a strong case but the defense may be able to raise a reasonable doubt, the application can be further postponed and the defense can revive the application request at any stage. Acknowledgment that may not be orderly conduct of case but the balance of solicitor/client privilege and innocence at stake is much more important. (Question: If the solicitor/client information is your best shot, would you, in addition to having to chose to present only one defense, also consider presenting the weakest defense possible to get a chance at your best shot?) McClure applications will be rarely successful because of the great importance of solicitor/client privilege. If, in fact, a wrongful conviction follows an unsuccessful McClure application, royal prerogative under section 690 is the ticket. (In the Brown case, the SCC agreed that if the threshold test had been met, the two stage test would have been met - i.e. that the truth of the other person s confession would be evidence touching on innocence and further, that if the confession existed in the file, it was likely to touch on innocence.) From pp raises interesting procedure issues. Two of them to note are: 1. The solicitor/client communication will not be confined to the written information in the file.

5 Page 5 Oral communication with the lawyer is just as, if not more, important and might have to be provided to the Judge by way of an Affidavit. 2. Further, if the communication is ordered disclosed, it will go only to the defense and not to the Crown. Defense Obligation to Give Notice of Expert Report In R. v. Stone [1999]2 SCR 290, defense counsel, in his opening remarks to the Jury, highlighted what the defense expert was going to say regarding automatism. The Supreme Court upheld a trial judge ruling that defense had to disclose to the Crown the report of its expert as soon as he made reference to the expert s anticipated evidence. Pre-Stone Age Practice Case by case basis? Defense generally gave notice or risk Crown getting an adjournment, call rebuttal evidence or sometimes reopen case? For defense, was an issue of evidence in relation to expert evidence, not a matter of defense disclosure. For Crown, it was a disclosure obligation per Stinchcombe. After Stone, timing of the disclosure was focused; change perhaps not so far reaching. But there was a legislative response - the amendments to Section 657.3: (3) For the purpose of promoting the fair, orderly and efficient presentation of the testimony of witnesses, a party who intends to call a person as an expert witness, shall, at least thirty days before the commencement of the trial or within any other period fixed by the justice or judge, give notice to the other party or parties of his or her intention to do so, accompanied by (i) the name of the proposed witness, (ii) a description of the area of expertise of the proposed witness that is sufficient to permit the other parties to inform themselves about the area of expertise, and (iii) as statement of the qualifications of the proposed witness as an expert. in addition to complying with paragraph, a prosecutor who intends to call a person as an expert witness shall, within a reasonable period before trial, provide to the other party, or parties

6 Page 6 (i) (ii) a copy of the report, if any, prepared by the proposed witness for the case, and if no report is prepared, a summary of the opinion anticipated to be given by the proposed witness and the grounds on which it is based, and (c) in addition to complying with paragraph, an accused, or his or her counsel, who intends to call a person as an expert witness shall, not later than the close of the case for the prosecution, provide to the other party or parties the material referred to in paragraph. (4) If a party calls a person as an expert witness without complying with subsection (3), the court shall, at the request of the other party, (c) grant an adjournment of the proceedings to the party who requests it to allow him or her to prepare for cross-examination of the expert witness, order the party who called the expert witness to provide that other party and any other party with the material referred to in paragraph (3), and order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness s testimony, unless the court considers it inappropriate to do so. (5) If, in the opinion of the court, a party who has received the notice and material referred to in subsection (3) has not been able to prepare for the evidence of the proposed witness, the court may do one or more of the following: (c) adjourn the proceedings, order that further particulars be given of the evidence of the proposed witness, and order the calling or recalling of any witness for the purpose of giving testimony on matters related to those raised in the expert witness s testimony. (6) If the proposed witness does not testify, the prosecutor may not produce material provided to him or her under paragraph (3)(c) in evidence without the consent of the accused. (7) Unless otherwise ordered by a court, information disclosed under this section in relation to a proceeding may only be used for the purpose of that proceeding.

7 Page 7 Under subsection (3) and (4), defense now having specific disclosure obligations which are mandated in all cases when expert is going to give evidence. Time limits take away from defense the latitude to make a decision on a case to case basis as to when the Crown will be given notice and how that notice will be communicated - no longer determined on a case by case basis (which depended often on the nature of the expert evidence being called) and what is to be disclosed is mandated. Subsection (5) makes the disclosure obligation net much wider. Potential for all of expert material, howsoever obtained, from whomever, disclosable to Crown. unless the Court considers it is inappropriate to do so. Thus, major rethinking of how you retain, instruct an expert, what material you provide for them and what information you want them to collect. For Crown, the section is, by and large, superfluous as all the disclosure mandated is already mandated as part of disclosure obligations. Given that the section does affect directly the section 7 rights of the accused, is there a potential for a constitutional challenge to the provisions? Alibi Issues The impact of the section is to, in essence, legislatively mandate defense disclosure and does so in such broad terms that the Crown is entitled to require from defense precisely what the Defense is entitled to require from the Crown. It seems certain now that, in order to have the right to call expert evidence, the accused must be prepared to disclose all information touched by an expert no matter how it might offend the section 7 charter rights of the accused. The law in relation to alibi was developed pre Charter and the two pivotal reasons for requiring notice and particulars were to: guard against the possibility of fabrication, and to enable the Crown to test the alibi. In practice, the most cogent reason was that if the alibi stood up the Crown would drop the charges - or at least that was the fond hope. Important to remember that the law did not start Cleghorn and may not have stopped there considering there was the intervening event of the Charter.

8 Page 8 Cleghorn got to the Supreme Court of Canada on the basis of the dissenting judgement of Abella, J. and was therefore confined to considering issues raised in the dissenting judgement and the constitutionality of the alibi disclosure rule was not before the court. At least one writer suggests the issue of the constitutionality of the alibi rule is still an open question. The Alibi Exception to the Right to Silence (39 CLQ 227, John D. R. Craig) Attached are the headnotes of some alibi cases. Some issues to consider: 1. Make sure the evidence in question is truly alibi evidence because if it is not, not bound by the alibi notice and disclosure requirements. (R. v. Hill) 2. What is the effect of failure to give timely notice? Always credibility of accused a.k.a. consciousness of guilt? Perhaps - R. v. Nelson but see R. v. Witter - because alibi didn t hold up doesn t mean it was concocted 3. What options for the Crown if not sufficient notice/ not enough information. In Garreri, gave the Crown time to investigate and because they did not get it all done, apparently let the trial go ahead and gave them an adjournment for more investigation and rebuttal evidence - also decided that could impeach the accused if he makes mention of alibi in evidence even cross examination and, it seems, even if alibi was not led at trial. Question - Should not right to remain silent prevail when did not assert a defense of alibi? 4. What inference can be drawn if fufilled the alibi requirements of timeliness and sufficiency? Can raise inference the police were negligent in not following up and (presumably) it points to innocence? Cold comfort-jury could simply infer that the police already investigated and if this was true, they would have found it or police couldn t have believed if not followed up. Why not duty on Crown to not proceed if alibi not investigated? 5. How do you communicate the alibi to the Crown? Through lawyer and is their any tacit waiver of privilege in the information thus communicated? 6. What is effect of interview with client by police? Section 10 of CEA? 7. In a given case, could defense not give notice, justify why prior notice would go against right to remain silent and then suggest to the court that the remedy is to now give the Crown the opportunity to investigate?