R v Barbour (ABCA): Defence must show due diligence in communicating disclosure problems

By | 2017-09-22T22:56:30+00:00 28/07/2017|Charter of Rights, Disclosure|0 Comments

The appellant had been convicted of fraud, arising from a number of mortgage transactions. Relatives of the appellant had applied and been granted a number of mortgages, based upon false information.The trial judge had concluded that the appellant knowingly provided this false information relating to her relatives’ mortgage applications to a mortgage agent who then submitted the mortgages for approval to the lender. On appeal (2017ABCA 231), the main argument of the appellant related to whether the Crown had complied with its disclosure obligations.

The appellant pointed to one particular document—a draft Information to Obtain—which contained a slightly different statement about the reason that the employment of the mortgage specialist involved in these transactions had been terminated by CIBC. The sworn ITO said that the specialist had been fired because he had violated policy and not done enough checks. The draft also said that the specialist had altered documents. The appellant argued that this draft ITO opened lines of questioning that had not been explored at trial and that the draft ITO had not been properly disclosed by the Crown.

The Court of Appeal concluded that the factual record supported that this draft ITO had been disclosed to the appellant and to prior counsel, but the appellant and her counsel had not reviewed it.

In the course of finding that there had been no breach of the Crown’s disclosure obligations, the Court summarizes a number of authorities relating to disclosure obligations of the Crown, the obligations of accused with respect to the disclosure they receive, as well as the disclosure of material electronically. In brief:

  • the Crown can make disclosure electronically, such as on flash drives, as they did in this case, provided the material is organized and indexed in a reasonable manner, and provided it can be accessed using reasonably available computer systems and software [at para. 32(c)]
  • where the accused changes counsel, there is an obligation on both counsel and the accused to enusre that disclosure is transferred or otherwise obtained by the accused or new counsel, as the case may be [at para. 32(d)]
  • the Crown is entitled to rely upon assurances by the accused that disclosure is fine or complete; “When the appellant represented that she had disclosure, and had spent significant amounts of time reviewing it, the Crown was entitled to assume that its obligation to disclose had been discharged.” [at para. 32(e)]
  • if disclosure indicates that third parties may have records that will assist the accused in making full answer and defence, the accused must be diligent in obtaining those records, or in bringing an O’Connor application for their production [at para. 32(b)]
  • trust conditions that require counsel to return disclosure to the Crown and not transfer it to another lawyer are not unreasonable, given the expense associated with the production of disclosure [at para. 33]
  • where new counsel does not inquire about disclosure, that “will generally demonstrate an absence of due diligence” by the accused [at para. 34].

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