The Crown Attorney must disclose all relevant evidence to defence counsel. This has been the case since 1991, after a famous case called R v Stinchcombe. Defence counsel are not technically required to specify what disclosure they are seeking, because how can defence counsel ask for what they do not know exists? That is why defence counsel carefully review any disclosure provided, to ensure nothing is missing, and to request the disclosure that is missing.

Sometimes defence counsel will receive a piece of disclosure that, at first blush, does not seem to have anything to do with the case. One such example is the criminal record of the Crown witnesses. How would that be relevant in a criminal trial?

Well, when the Crowns choose to call witnesses with criminal records or outstanding charges, such records may be incredibly relevant to the issue of the witnesses credibility. For example, if a Crown witness has repeat convictions for fraud, it would be reasonable for the defence to make submissions on the honesty of such a witness, given their proven track record of committing crimes of dishonesty. Or, in an even more concerning scenario, a Crown witness may be offered reduced sentences for their own crimes in exchange for their testimony. Motivation and bias are well-established grounds to undermine the credibility of a witness. That is, it would not be unreasonable to doubt the honesty of a witness who is getting some benefit for their testimony!

Unfortunately, the criminal records and outstanding charges of Crown witnesses were not always being provided to defence counsel. In May of this year, the Ontario Court of Appeal heard a case where the failure of the police and Crown to provide the record and outstanding charges of one of their main witnesses resulted in the appeal being allowed, and a new trial ordered.

In R v. Pascal, the accused was charged with sexual assault causing bodily harm. The accused and the complainant were at a motel in Kenora. A few hours later, they were alone down by the docks. The complainant alleges that this is where the accused sexually assaulted her, while also causing harm to her body.

The Crown called an “independent witnesss” – who, it turns out, was not so independent after all – Ms. Jarvis, who worked in the convenience store inside the motel, and also lived in the motel permanently. The day of the alleged attack, Ms. Jarvis gave a statement to the police, outlining the exchange she saw down by the docks. Then, 17 months later, as Ms. Jarvis is being prepared for trial, she gives another statement to the police, a statement that was quite different from her statement to the police on the day of the alleged attack.

It turns out that Ms. Jarvis not only had a criminal record, but she had significant ties to a well-known drug dealer in the area. Defence counsel was never told any of this, and had no reason to suspect she did have a criminal record.

The trial took place, with the trial judge believing quite a lot of Ms. Jarvis’s evidence, to the point that her evidence was chosen over that of the accused, who was convicted.

What was also never disclosed to defence counsel was the fact that, during the 17 months between her first and second statements, Ms. Jarvis was charged with 7 criminal offences, some quite serious, e.g., trafficking drugs. Her charges were only dealt with after the accused had been found guilty. Without knowing any of this at trial, defence counsel could not advance the argument that she may have received a deal for her second statement, in light of her new charges, or that her criminal record is proof of her connection to the drug world.

The Ontario Court of Appeal agreed that the outcome of the trial could have been different had these details about Ms. Jarvis been provided to defence counsel. The Court of Appeal was not at all impressed when the Crown and police tried to blame each other, stating:

It ill lies in the mouth of the prosecuting Crown to explain failure to disclose relevant material on the basis that the investigating police service failed to disclose it to the Crown. When put on notice of potentially relevant material in the hands of the police or other Crown entities, the prosecuting Crown has a duty to make reasonable inquiries. Correspondingly, the police have a duty to disclose to the prosecuting Crown all material pertaining to its investigation of the accused. This material is often termed “the fruits of the investigation”.

Since Pascal was released, Crown Attorneys are now extremely quick to disclose the records and outstanding charges of their witnesses.

If you or someone you know has been charged with a criminal offence, please contact the team at DeMelo Law.