Criminal Justice Case Analysis

It is important that all relevant information be disclosed to the accused. Refusal to do so will always bring the administration of justice into dispute. There are circumstances though where that may not be possible. In the events where disclosing certain information could bring harm to the security and safety of persons certain information may be withheld. There are four considerations that must be made by the Crown counsel should the defence request information about witnesses: the first is to make sure that the accused will get fair trial; second is that witness are neither the property of the Crown or Defence; third, the witnesses right not to testify unless subpoenaed by the court and fourth, to prevent threats and harassments made to
the witness and their family, danger to their lives and safety or other interference with the administration of justice. That exception only applies as long the justification of that delay exists. Even though the witnesses’ safety and privacy must be considered, if the evidence will help the defence the witness will eventually have to testify.
It is the only way to ensure that the accused will have the chance to make full answer and defence. In some situations information pertaining to the case may be withheld for an indefinite period of time and may even result in a stay of proceedings due to reasons of legal privilege. To ensure that the administration of justice does not come into dispute the courts have deemed that absolute refusal of disclosure is not allowed unless in the case of solicitor-client privilege, cabinet confidences, national security, national defence and international relations. In other situations such as on-going investigations and police informants disclosure is not so easily granted. There are many risks associated with disclosing information about ongoing investigations and police informants. Primarily the number one concern is the
safety of the informers. Just giving the name of the informer could put their life at risk, especially if it involves organized crime. The rules of disclosure state that the only time the Crown must disclose the identity of the informant is when the factual innocence of the accused is at issue. For this reason the Crown has the discretion as to the timing and matter of the disclosure. The Crown also has the discretion to not disclose any information that is clearly irrelevant. It is important that when disclosing relevant information that witnesses and informants can stay protected to ensure that justice can be served without endangering those who helped serve it. Lastly there are many ramifications that not disclosing all the relevant information can cause the courts.
One of those ramifications is the time that is spent settling the issue that occurs due to the Crown not disclosing. In the Stinchcombe trial advocates who supported the absence of a general duty to disclose, stated that there would be more work added to the Crown in bringing accused to trial. Not disclosing the relevant information that can ensure proper justice will be served on the basis that it will take longer for accused persons to stand trial is absurd. The Supreme Court of Canada stated that even if that were the case that amount of time would be offset by the time saved settling the disputes such as the one in the Stinchcombe case. Had the Crown initially disclosed the information to William Stinchcombe at the original trial it would not have even gone to the Alberta Court of Appeal or the Supreme Court of Canada. There have also been many experimental projects done to see how effective pre-trial disclosure can be. The First project began on February 28 1975 in Montreal under the guidance of Judge Lessard. The Procedure had two stages: the first stage was a disclosure conference between counsels. Both Counsels would meet in advance to discuss disclosure. This provided an opportunity for plea-bargaining or preparing for the next course of the trial. It also allowed counsel to discuss possible admissions or the waiver of a preliminary inquiry. The second stage
was a hearing before a justice of the peace following the first stage. In this stage the justice of the peace would decide whether proper disclosure had been made and note the intentions and decisions of both parties with respect to the future proceedings of the case. The project lasted until 1978 and its findings showed that from 1973 to 1978 there has been an increase in both guilty pleas at the preliminary inquiry and just before trial. The numbers jumped from 8.1% to 19% for guilty pleas at the preliminary inquiry and 10.5% to 21% for guilty pleas just before trial. The data also shows that the pro-forma inquiry led to the settlement of 26.4% of cases. It is clear that the project proved that pre-trial disclosure would benefit the courts by saving both time and money but it did not end there. Though the Montreal experiment was the longest and most exhaustively evaluated it laid the foundation for other experiments in the future. Experiments such as the one conducted in Ottawa. The procedure was practically the same expect in the preliminary meeting the Crown attorney and investigating officer would both be present to decide on what charges to proceed on.