Criminal Defence Lawyer Troy Anderson – Answering questions about disclosure and how important it is to your case.
Mark: Hi, it’s Mark Bossert from Top Local Lead Generation. We’re speaking about disclosure and how important that is if you’re in any kind of criminal difficulties with Troy Anderson from Vancouver BC. He’s at troyandersonlaw.ca. How’re you today Troy?
Troy: I’m very well Mark, but of course it’s troyandersonlaw.com.
Mark: I’m sorry, troyandersonlaw.com.
Troy: Well that’s fine, its troyandersonlaw.com and yes I’m happy to talk about disclosure with you. We’ve spoken a little bit about it in the past, could have been passing in some of our other discussions.
Disclosure is probably, in the lead up to a trial, maybe the most important thing that your lawyer can focus on; it applies to any sort of a trial no matter how minor or serious. The most trivial matter for many people is getting a traffic ticket. What many people don’t know is that you’re entitled to the disclosure of the officer’s notes which are often contained on the back of the ticket which he will probably not show you unless you specifically ask for it, right up to a murder charge where you’re entitled to disclosure of, for example all of the lab procedures and notes used to process that piece of DNA evidence for example. It applies to every single criminal or even quasi criminal proceeding that we have in Canada. It is your very first look at the case against you that is the case that you have to meet when you are called upon to mount your defence. It is best if you get as much of the disclosure as you can prior to having a bail hearing, if you’re looking at that and perhaps I should back up a little bit.
What I mean by disclosure is I mean first and foremost the report to Crown Counsel. So that’s what we call a police report. It will include all of the police officers notes, it will include their reports, it may include photographs, diagrams, video recordings, expert reports. Really you are entitled to the entirety of the evidence that has been gathered against you, whether or not the Crown intends to use it and whether or not it tends to be inculpatory, that is tending to show you’re guilty or exculpatory which would be tending to show you’re innocent.
For example you are entitled to disclosure of the witness statement who may perhaps identify someone else as the perpetrator of the crime. So I think you can probably see why it’s so incredibly important. It is your look at the case against you. It allows you how to plan out how to meet that case.
Mark: So how do I get it?
Troy: Well, the thing to keep in mind is disclosure is a right. It is your right to have disclosure of the evidence gathered by the police or any other investigating authority and so a simple way to get it is, your lawyer asks for it and it is handed over. In most cases as a matter of routine but where your lawyer may come in it’s often not complete and if you’re in court on your own and you receive a disclosure package which has what the crown chooses to hand over at the beginning, you may not know what else you’re entitled to and so what your lawyer does is goes to the Crown, gets a copy of the initial disclosure and my practice is to go over it with my client. My client will sometimes know things that are missing that I’m unable to, so for example he or she may say; I gave a statement that’s not in there. Well then I know that I need to ask or demand for production of that statement. Another example may be in a more technical offence such as an impaired driving case the average person won’t know that they’re entitled to the calibration records for example, used in the breathalyser devices and so your lawyer will know what to ask for. In a case involving scientific evidence such as DNA the average person will have no idea what they’re entitled to and so they won’t know even enough to ask for disclosure of the entire lab notes for example and work notes.
I’d like to finish that bit off because if asking for it doesn’t get it you are then entitled to bring a disclosure application to the Court and judges will commonly, if its relevant evidence make an order that the Crown disclose certain materials to you. So that’s the other thing to keep in mind is , it is your right, it’s not you’re asking for something and hoping that the good will of the Crown will give it to you, it is your right to get it and you’re entitled to demand it.
Mark: So that answered my question basically.
Troy: I got ahead of you. Yes, and then I think we’ll move onto the logical conclusion from there, is what other remedies may I have and the Courts have long recognized that disclosure is a fundamental right. You are entitled to know the case against you and the next step as I just indicated is to apply for an order for disclosure and it may come to the point where the Crown is unable or unwilling to comply with that order. If the Crown does not or cannot comply with an order of disclosure there are other remedies available. One of which may be the Court can prohibit the Crown from calling certain pieces of evidence that they’ve been unable or unwilling to disclose. There have been cases where the Crown has been prohibited from calling certain witnesses and then of course the ultimate remedy is what is called a judicial stay of proceedings and what that is, is when your are able to establish to the Court that this would be one of the clearest of cases and that’s the test to be applied that no other remedy would satisfy the violation of your right to disclosure short of the judge entering a judicial stay of proceedings and that is essentially the judge throwing the case out because the Crown has failed to fulfill their obligations. There’s a case from many years ago where the Supreme Court of Canada outlined the test for that and the one I’m thinking of in particular is where evidence had been lost and so a police officer or crown prosecutor without any ill intent has simply either lost or destroyed evidence and there’s a test to be looked at to be applied by the Court on the degree of negligence or the degree of care with which the Crown or the police undertook their disclosure obligations. So you can see in any scenario where the Court may entertain a judicial stay of proceedings application that is ending the entire prosecution that gives you a sense of how really important disclosure is and how it is fundamental to your right to a fair trial.
Mark: Is there anything else you’d like to add?
Troy: Well, I think again and this is a theme we’ve talked about in the past, if you are charged with a crime and you are planning on having a trial it is very important I think to get legal advice early. Some types of disclosure requests are time sensitive, for example many businesses have video tape or video surveillance systems that record over in a time period, so for example they may keep video evidence for 30 days and if you don’t request it, it may be gone and you may lose valuable evidence that may be crucial to your defence so like many things involved in the criminal defence system don’t wait til the last minute, get a lawyer on your side early so you can gather the evidence you may need. It may make all the difference at the end of the day.
Mark: So, we’ve been talking with Troy Anderson of troyandersonlaw.com. You can reach Troy at 604-638-9188 in Vancouver. If you have any kind of criminal difficulties he’s the man to call 604-638-9188. Thanks a lot Troy.
Troy: Thanks Mark.