CRIM 330 Lecture Notes - Lecture 6: Indictable Offence, Jury Trial, Precedent
13 Jun 2018
School
Department
Course
Professor
CRIM 330 - Lecture 6 - Crown Disclosure and the Preliminary Inquiry
Means of Disclosure
● Particulars
○ Basic details around circumstances of offence
○ Any statements made by accused
○ Any statements made by witnesses
■ Can be recorded, not necessarily audio/video file, can be notes
○ “Particulars” of circumstances of alleged offence
○ Particulars will generally include
■ Narrative of facts alleged
■ Statements made by accused and witnesses
■ Details of accused’s criminal record (if any)
○ Usually particulars are disclosed informally
○ Particulars may be disclosed more formally via court application
○ As soon as accused retains lawyer, first thing lawyer will do when making contact
w/ Crown will make particulars
○ If defense felt that there were no particulars disclosed/if felt that Crown
withholding something, can make more formal application & make court order
particulars
● Pre-trial conference
○ Not mandatory in most cases
○ Mandatory for jury trials, discretionary (on application) for other trials
■ Mandatory b/c do not want jury to have to be sent out of room at certain
parts of trial while Crown & defense sort things out
○ Meant to promote “fair and expeditious trial” by sorting out certain matters before
trial
■ So that when trial begins, do not need to keep stopping in middle of trial
○ Include
■ Exchange of witness lists
■ Summaries of expected testimony
■ Time estimates
○ When looking at defense perspective, sees Crown witness list, time estimates,
summaries of expected testimonies of Crown witnesses
○ Another mechanism by which there may be some Crown disclosure
○ No defense disclosure
● Preliminary inquiry
○ Occurs w/i indictable offences unless direct indictment
○ Is hearing/inquiry that is preliminary to trial
○ Really about Crown justifying case going to trial
○ Similar to a rehearsal
○ Will present evidence just as they would during trial
find more resources at oneclass.com
find more resources at oneclass.com
○ Purpose not to reach verdict, but is opportunity to see Crown’s case in action &
test it
Remedies for Non-Disclosure: Charter s.24(1)
● To not fully disclose is non constitutional
● Failure to disclose may constitute s.7 violation
● Court can provide remedy for Charter violation under s.24(1)
○ Anyone whose rights/freedoms guaranteed by CC have been infringed/denied
may apply to court of competent jurisdiction to obtain such remedy as court
considers appropriate & just in circumstances
○ If Charter rights violated, can ask for remedy
■ Structured, must follow precedent & stare decisis, but judge can offer
remedy
● Remedy will depend on 2 things
○ Timing of non-disclosure (when it happened/when it was discovered that lack of
Crown disclosure)
○ Effect of non-disclosure on right of accused to fair trial
■ Must be able to make argument
● Timing is overriding consideration
● Before trial..remedy is order of disclosure
○ Ordering disclosure before trial gives opportunity to prepare
● During trial
○ As soon as non-disclosure is detected, court can order disclosure (typical
remedy)
○ Will also order adjournment if necessary (to allow defence counsel to review new
material)
■ Can take days/weeks for defense to consider new evidence
● After trial (on appeal)
○ Two-step test:
■ Accused must demonstrate there is reasonable possibility that verdict
might have been different if Crown has disclosed AND
■ Accused must demonstrate there is reasonable possibility failure to
disclose affected overall fairness of trial process
○ Most common remedy if test is met - to order new trial
■ In exceptional circumstances, case will be tossed out
● If inadvertent, much more likely that all defense gets is order for new trial
○ If evidence no longer available, counts against Crown
Defence Disclosure
● No corresponding duty on accused to disclose info
○ Must still share info
find more resources at oneclass.com
find more resources at oneclass.com
Document Summary
Crim 330 - lecture 6 - crown disclosure and the preliminary inquiry. Can be recorded, not necessarily audio/video file, can be notes. Details of accused"s criminal record (if any) Particulars may be disclosed more formally via court application. As soon as accused retains lawyer, first thing lawyer will do when making contact w/ crown will make particulars. If defense felt that there were no particulars disclosed/if felt that crown withholding something, can make more formal application & make court order particulars. Mandatory for jury trials, discretionary (on application) for other trials. Mandatory b/c do not want jury to have to be sent out of room at certain parts of trial while crown & defense sort things out. Meant to promote fair and expeditious trial by sorting out certain matters before trial. So that when trial begins, do not need to keep stopping in middle of trial.
