A time is reached in the course of disclosure when the onus is on the accused to settle the “likely relevance” of information withheld by the Crown in their disclosure obligation. Established in R. v. O’Connor, the threshold of likely relevance is that the trial judge must be satisfied that “there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify”. It would require a more than simple assertion that the information may be relevant at large to suffice. Defence counsel is to show that the information is material to an issue in the trial or to the competency of a witness, such that non-production could impair the right to a full answer and defence.
Probative & Balancing
Next, the inquiry proceeds to the balancing stage, provided the trial judge concludes that the initial threshold of “likely relevance” is satisfied. This requirement makes examination of the records necessary so as to determine whether, and to what extent, the records should be produced. It is now for the judge to examine and weigh the probative value of the material and the salutary and deleterious effects of a production order and determine whether non-production would constitute a reasonable limit on the ability of the accused to make a full answer and defence. This is when, the trial judge is balancing the privacy interests in the records against the right of the accused to make a full answer and defence. The trial judge now has to test the potential prejudice on all parties by production of the information, and determine its effect on the integrity of the trial process. If the judge concludes that production is warranted, it should only be ordered to the extent necessary.
There are occasions when the defence counsel would like to have a piece of physical evidence examined by an independent expert. Making informal arrangements with the police and the Crown, defence counsel can have the evidence examined by a defence expert. A formal application will be required if agreement in the matter is not reached.
Under section 605 of the Code, a judge permits, upon application, the release of physical evidence for the purpose of scientific or other testing or examination, whether it is in the possession of the police, the Crown, or whether it has been entered as an exhibit in the proceedings. The important point is that there has to be an “air of reality” to the claim that the proposed testing or examination has the potential to advance an available defence, for the exhibit to be ordered released.
Full and complete
Among obligations the defence has under the disclosure regime, the most important is the obligation of due diligence. In respect of disclosure, the role of defence is to be watchful so as to review received disclosure with his or her clients on a timely basis. During the process, if defence becomes aware or ought to be aware of a failure to disclose relevant material, defence has an obligation to diligently pursue the issue. If the disclosed matter already in possession of defence contains hints relating to further as-yet undisclosed information, and that material subsequently becomes unavailable, the defence’s failure to make a timely supplemental request may result in a loss of remedy. Defence demands for further disclosure should be detailed and specific. A loosely worded demand for disclosure of all relevant information, whether repeated or not, will not do; and the obligation on the part of defence will remain unfulfilled. There is also the obligation to make responsible requests for disclosure. Frivolous and/or unreasonable demands for disclosure that are no more than “fishing expeditions” are not exactly what the Crown counsel is looking for and is likely to reject, to say nothing of the poor impression created.
A good opportunity for Crown counsel and defence to raise issues relating to disclosure and work out possible solutions presents itself in pre-trial conferences. In such a venue defence should be prepared to state their position in respect of whether there are any outstanding disclosure issues. Similarly, judicial pre-trials also present an opportunity to deliberate on disclosure disputes with a judge and have his or her views brought to bear on the issue.
It is an obligation of defence to make reasonable efforts to obtain the evidence, including production requests, on a timely basis. If the court, on review, finds that defence has not pursued disclosure as a deliberate strategy, it can have a serious impact on any remedies requested. There are a number of appellate decisions affirming the verdict to deny the defence a remedy based on non-disclosure, because defence did not raise the issue of production at the earliest opportunity.