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Disclosure dilemma

Editorial Obiter

We live in a time of extreme paradoxes. Never has so much information been available so readily, thanks to the power of online news, digital devices and social media platforms.

And yet, walls exist when it comes to some forms of information sharing, especially when it comes to the legal phalanxes built to stop some details from coming forward.

In this issue, Law Times reports that in R. v. Mossaddad, an Ontario Superior Court judge has ruled that defence counsel cannot disseminate disclosure they receive to the media.

The article notes that Justice Mark Edwards found defence counsel cannot share Crown disclosure, and if defence counsel has received disclosure that is not the subject of a written undertaking, a deemed undertaking nonetheless applies, and it should not be disseminated to the public without further direction of the court.

“If defence counsel or an accused has received disclosure that is not the subject matter of a written undertaking, I am of the view that a deemed undertaking nonetheless applies to such disclosure and no use may be made of such disclosure outside of the context of the criminal proceedings without further direction from the court,” says the ruling.

The ruling makes sense, as it references R. v. Stinchcombe, and notes the Crown typically shares materials with defence counsel on the condition they not disclose them “for any other purpose other than making full answer and defence in the context of the criminal proceeding.”

That being said, in a digital age where materials and information spread and leak faster than ever, I question how effective these rules will be, particularly when it comes to self-represented defendants, which are surging in Ontario courts. Desperate people will share information widely in hopes of support. More direction is needed from the courts on navigating these issues.

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