R. v. Chaplin [1995] 1 S.C.R. 727: Disclosure: Whether accused has right to know if a target in wiretap authorizations unrelated to investigation of current criminal charge

Present: Lamer C.J. and La Forest, L'Heureux-Dubé, Sopinka, Gonthier, Cory, McLachlin, Iacobucci and Major JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR ALBERTA

Criminal law -- Evidence -- Disclosure -- Crown's obligation to make disclosure to defence -- Defence informed that accuseds not primary or secondary wiretap targets in this investigation -- Defence requesting to be informed of whether or not accuseds primary or secondary targets in wiretaps used in other investigations -- Whether accused has right to know if a target in wiretap authorizations unrelated to investigation of current criminal charge -- Canadian Charter of Rights and Freedoms, s. 7 -- Criminal Code, R.S.C., 1985, c. C-46, ss. 187, 189(2), 193, 196.

Appellants requested the provincial prosecutor and the Department of Justice to disclose whether either appellant was named as primary or secondary target in any undisclosed wiretaps during the period 1988 to April 15, 1992. The reply was that there were no provincial wiretap authorizations in effect with respect to this investigation during that time period but both Crowns declined to confirm or deny the existence of any other authorizations. The appellants then applied for an order requiring the Crown to answer the question, which motion proceeded as a Stinchcombe application.

During the motion, the appellants admitted that they had no evidence to demonstrate the relevance to their defence of the information sought since they had no proof that there had been any wiretap authorizations or that there was derivative evidence obtained from wiretaps relevant to the charges. The appellants argued, however, that once an accused has made a Stinchcombe application for disclosure, the onus was on the Crown to justify its refusal to disclose on the basis that the material was clearly irrelevant, or raised public interest privilege.

The motions judge found that the onus in a Stinchcombe application was on the Crown and that the appellants were entitled to disclosure of the requested information. As a result of the refusal of the provincial and federal Crowns to comply with the terms of the disclosure order, the appellants applied for and were granted a judicial stay of proceedings respecting the indictment. The Alberta Court of Appeal set aside both the disclosure order and the stay of proceedings, and ordered a new trial. The issue on appeal was whether an accused facing trial on a criminal charge is entitled to know if he or she has been named as a primary or secondary target in any wiretap authorizations unrelated to the investigation of the current criminal charge, obtained in the period from the charges up to the time of trial.

Held: The appeal is dismissed.

The Crown's disclosure obligation is shaped by the principles of fundamental justice included in s. 7 of the Canadian Charter of Rights and Freedoms and, in particular, the right to make full answer and defence. Generally, the Crown must disclose all information, whether inculpatory or exculpatory, except evidence that is beyond the control of the prosecution, clearly irrelevant, or privileged. This obligation requires that the Crown exercise the utmost good faith in determining which information must be disclosed and in providing ongoing disclosure. Failure to comply with this initial and continuing obligation to disclose relevant and non-privileged evidence may result in a stay of proceedings or other redress against the Crown, and may constitute a serious breach of ethical standards.

The Crown's obligation to disclose is not absolute and, while it must err on the side of inclusion, it need not produce what is clearly irrelevant. Relevance is determined in relation to its use by the defence. When the Crown alleges that it has discharged its obligation to disclose, an issue may arise as to whether disclosure is complete in two situations, where the defence contends that: (1) identified and existing material ought to have been produced, or that (2) material whose existence is in dispute ought to have been produced.

In the first situation, where the existence of certain information has been identified, the Crown must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged. Justification of non-disclosure on the grounds of public interest privilege or other privilege may involve certain special procedures (such as that referred to in s. 37(2) of the Canada Evidence Act) to protect the confidentiality of the evidence.

In the second situation, the Crown may dispute the existence of material which is alleged to be relevant. Once the Crown alleges that it has fulfilled its obligation to produce, it cannot be required to justify the non-disclosure of material, the existence of which it is unaware or denies. The defence, therefore, must establish a basis which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant. Relevance means a reasonable possibility of being useful to the accused in making full answer and defence. The existence of the disputed material must be sufficiently identified not only to reveal its nature but also to enable the presiding judge to determine that it may meet the test with respect to material which the Crown is obliged to produce. The matter may often be resolved by oral submissions of counsel without need of a voir dire, though viva voce evidence and a voir dire may be required where the presiding judge cannot resolve the matter on the basis of submissions by counsel. The requirement that the defence provide a basis for its demand for further production serves to preclude speculative and time-consuming disclosure requests, and avoid impeding ongoing criminal investigations.

If the defence establishes a basis for the conclusion that the evidence may exist, the Crown must then justify a continuing refusal to disclose. This obligation is the same as that in first instance. If the matter cannot be resolved without viva voce evidence, the Crown must be afforded an opportunity to call relevant evidence. In cases involving confidential information, it may be appropriate for the trial judge to order a hearing in camera, or privately inspect the material in issue, applying procedures such as those set out in s. 37(2) of the Canada Evidence Act. In cases involving wiretaps, the procedure for protecting confidential information is dealt with in R. v. Garofoli.

Applying the foregoing to this appeal, the accuseds failed to establish a basis for the existence of wiretap authorizations or evidence derived therefrom which is potentially relevant to making full answer and defence.

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