Wednesday, November 05, 2008
Berardino "has a legal duty to disclose ..."
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Judgments of the Supreme Court of Canada
Regina v. Stinchcombe (1991)
Excerpt:
" ... The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. [Emphasis added. - BC Mary]
Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial.
Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied.
... Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced.
http://csc.lexum.umontreal.ca/en/1991/1991rcs3-326/1991rcs3-326.html
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Judgments of the Supreme Court of Canada
Regina v. Stinchcombe (1991)
Excerpt:
" ... The Crown has a legal duty to disclose all relevant information to the defence. The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done. The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. The absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. [Emphasis added. - BC Mary]
Counsel for the accused must bring to the trial judge's attention at the earliest opportunity any failure of the Crown to comply with its duty to disclose of which counsel becomes aware. This will enable the trial judge to remedy any prejudice to the accused if possible and thus avoid a new trial.
Initial disclosure should occur before the accused is called upon to elect the mode of trial or plead. Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied.
... Since the information withheld might have affected the outcome of the trial, the failure to disclose impaired the right to make full answer and defence. There should be a new trial at which the statements are produced.
http://csc.lexum.umontreal.ca/en/1991/1991rcs3-326/1991rcs3-326.html
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Comments:
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Crown, Crown prosecutor..... isn't quite the same thing as say BC Hydro which is a Crown corporation.
The BC Liberal government, albeit that they are the Crown, are not on trial here, that's Basi/Virk/Basi who as employees of the Crown sought to enhance themselves via insider information, which is still under the protection of the Executive Council as we speak.
The Crown Prosecutor is acting on behalf of the people of British Columbia, which unfortunately in this unique case involves employees that were hired by the BC Liberals. Gordon Campbell and his fellow MLAs are not on trial for corruption, all they did was provide the means by which some unscrupulous individuals that they chose to work on behafl of the inner circle (cabinet), took advantage of a unique situation which stinks to high heaven when it comes to a broken election promise of not selling BC Rail.
The BC Liberal government, albeit that they are the Crown, are not on trial here, that's Basi/Virk/Basi who as employees of the Crown sought to enhance themselves via insider information, which is still under the protection of the Executive Council as we speak.
The Crown Prosecutor is acting on behalf of the people of British Columbia, which unfortunately in this unique case involves employees that were hired by the BC Liberals. Gordon Campbell and his fellow MLAs are not on trial for corruption, all they did was provide the means by which some unscrupulous individuals that they chose to work on behafl of the inner circle (cabinet), took advantage of a unique situation which stinks to high heaven when it comes to a broken election promise of not selling BC Rail.
# posted by 
: November 6, 2008 at 11:50 a.m.
: November 6, 2008 at 11:50 a.m.
I was thinking of writing a letter to the editor today when all of a sudden I realized that there was a similarity between what the Vancouver City Council did in-camera and that which the BC Liberals have done in-camera via their Executive Council meetings.
What is it, one law for the Executive Councils another for the "Creatures that they create"... municipal governments.
If Millennium may be viewed as being the tip of an iceberg, on a hot summer day, to that which lies below it, then the ratio is probably far greater than one:six. How many other Millennium deals are their in the BC Liberals cabinet drawer that will go unseen until the great Crash, and its too late?
Did I say Crash, Yikes! Am I thinking analogy or economic or political?
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What is it, one law for the Executive Councils another for the "Creatures that they create"... municipal governments.
If Millennium may be viewed as being the tip of an iceberg, on a hot summer day, to that which lies below it, then the ratio is probably far greater than one:six. How many other Millennium deals are their in the BC Liberals cabinet drawer that will go unseen until the great Crash, and its too late?
Did I say Crash, Yikes! Am I thinking analogy or economic or political?
********************************
Clicking on my name will take you to my blog site
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