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Failure to disclose 911 call information ‘should cease’

ONCA criticizes Peel Crown policy
|Written By Alex Robinson
Failure to disclose 911 call information ‘should cease’
Michael Lacy says getting rid of such a policy ensures clarity.

The Court of Appeal has blasted a policy in the Peel Region Crown attorney’s office, which did not automatically disclose 911 calls to an accused person.

In R. v. M.G.T., the court found the fact that such a policy of non-disclosure existed in a Crown’s office in 2017 was “unfathomable.” The policy held that 911 calls were not included in initial disclosure and they would only be provided if defence counsel or the Crown requested them in the case management phase of proceedings.

“Such a policy amounts to an abrogation of the Crown’s constitutional obligation, the creation of a Charter-free zone that bars entry by an accused to obtain his or her constitutional entitlement,” Justice David Watt wrote in the decision.

“If it persists to this day, it has exceeded its best before date by about 35 years and should cease immediately.”

In the case, the trial judge convicted a man, identified as M.G.T., of sexually assaulting his wife. There is a publication ban on the man’s name because of the nature of the charges.

Before sentencing, M.G.T.’s brother claimed a friend, who had made the 911 call about the incident and had testified at trial, had told him he had fabricated his testimony. M.G.T. then requested the case be reopened, but the judge refused this application.

The defence appealed, arguing the judge erred in deciding not to reopen the case. M.G.T. also sought on appeal to introduce the friend’s recantation as fresh evidence, as well as a transcript of his 911 call, which was not disclosed before trial.

While the policy was not province-wide, lawyers say other Crown attorney offices had a similar policy on 911 calls.

Lawyers say such policies put an enormous burden on defence counsel to chase after disclosure and attend court specifically for that purpose, acting as a drain on their client’s time and money.

Going forward, the Crown will have to provide this information as part of its core disclosure package or it risks serious censure in any case where it comes up, says criminal defence lawyer Dan Stein.

“Getting rid of this policy will ease the pressure on defence counsel and place the responsibility where it should be, on the Crown,” says Stein, who was not involved in the case.

“Hopefully, it will become a part of initial disclosure, automatically obtained by the police and the Crown after an arrest. It could also cascade on to other forms of evidence that are obtained as part of an investigation but only disclosed when it is specifically requested.”

Stein says that any similar policies that exist in Crown offices that could cover the disclosure of squad car videos or other electronic records will likely be subject to a similar review.

The Court of Appeal found that the 911 call should have been disclosed to the defence under R. v. Stinchcombe, a landmark 1991 Supreme Court of Canada decision that said the Crown has a duty to disclose all relevant information to the defence.

The court determined that while the non-disclosure was a breach of M.G.T.’s constitutional right to disclosure, the undisclosed evidence would not have had an impact on the verdict.

“It is unfathomable that over two decades after Stinchcombe, a local Crown attorney’s office would promulgate and adhere to a policy of non-disclosure, at one ill-conceived and constitutionally infirm,” wrote Watt.

While the Court of Appeal dismissed the appeal, lawyers say the decision is a big win for the defence bar, as the court’s comments on the disclosure policy should bring it to a halt.

“These comments from the Court of Appeal make it very clear that 911 calls are important items of disclosure and you can’t just come up with some internal policy and not disclose them if it’s contrary to Stinchcombe,” says Daniel Lerner, a former Crown who is now a criminal defence lawyer. He was not involved in the case.

Lerner says getting 911 transcripts has been a notoriously problematic area of disclosure and it is rare to get such calls upfront in the initial disclosure.

Criminal defence lawyer Michael Lacy, who represented M.G.T. in the appeal, says his client does not view the decision as a win, but the defence bar is applauding the decision because it is a strong statement against the Crown’s policy.

“Following Justice Watt’s comments, such a policy is obviously indefensible going forward,” he says.

He says that, previously, such calls would not be provided as a matter of routine, and that if they were it was often after a trial date was set.

Such calls could often contain very important evidence that might be useful for mounting a defence, Lacy says.

“Getting rid of the policy ensures clarity,” he says. “It is a helpful reminder of the obligations on Crown counsel to make diligent efforts to obtain and disclose all relevant evidence at the earliest opportunity.”

Lerner says he does understand why there has been a reluctance to provide 911 calls in early disclosure, as it could create a resource problem. He says the vast majority of cases that make their way to the criminal courts have a 911 call associated with them, and they have to be listened to and redacted before they can be handed out.

“If it has to be part of initial disclosure on every single case, that could be a resource problem,” Lerner says. “So, I do understand where the police and the Crown are coming from in being reluctant in handing out these, because the precedent it could set is problematic for them. But at the end of the day, the Court of Appeal is quite correct. Stinchcombe trumps policy.”

Emilie Smith, spokeswoman for the Ministry of the Attorney General, said the ministry was carefully reviewing the decision, but she declined to provide further comment while it was within the appeal period.

Lacy says he does not have instructions at this time whether his client intends to seek leave to appeal the decision from the Supreme Court.

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