Chapter 10: Provision of Information

SECTION 1 - GENERAL

1. The purpose of this Chapter is to discuss the issues surrounding the provision of information to an accused.

2. The provision of information to an accused about the charges faced by that accused is at the heart of procedural fairness and the rule that an accused must be informed of the case to be met. See Chapter 4, Fairness and the Application of the Charter.

3. The accused's right to provision of information is not an independent right, but is part of the right to make full answer and defence.¹ This right has been included in section 7 of the Charter as one of the principles of fundamental justice.² To ensure that the accused can make an informed decision regarding election and adequately prepare and respond to the charges laid, it is important that the accused is provided with sufficient information about the charges, in a timely manner.

4. At summary proceedings the information that must be provided to the accused is set out in QR&O.³ This duty is in keeping with both the common law right to make full answer and defence and the principles of fundamental justice as defined by the Charter.⁴

SECTION 2 - DUTY TO PROVIDE INFORMATION AT SUMMARY TRIAL

General Duty

5. Officers exercising summary trial jurisdiction have a duty to ensure that the accused and the assisting officer are provided a copy of, or given access to, any information that will be relied on at summary trial, or which tends to show the accused did not commit the offences charged.⁵

6. It is important to note that there is no corresponding duty on the part of the accused to provide information.⁶

Types of Information to be Provided

7. Types of information that could be provided to the accused and the assisting officer include:

1. a copy of any statement made by the accused;
2. a copy of any documentary evidence;
3. a copy of any written statement made by a witness;
4. a copy of any unit or military police investigation report made, or where applicable, relevant portions of the report which would include portions that would be relied upon at a summary trial or that would tend to show that the accused did not commit the offence charged; and
5. where physical evidence exists, access to the evidence.⁷

8. There are situations where information or evidence ought to be disclosed, but it is not possible to make a copy of the evidence. For example, material evidence such as clothing cannot be copied and therefore, it would be appropriate for the accused and the assisting officer to be given supervised access to such items.

Timing for Provision of Information

9. The information should be provided in sufficient time to permit the accused to consider it in making an election and to properly prepare the accused's case prior to the summary trial.⁸ Should additional information subsequently come to light that will be relied on at the summary trial or which tends to show the accused did not commit the offence charged, it must immediately be provided.

10. Where the provision of information has not been made in time for an accused to properly consider the election or to prepare for a summary trial, the accused should be granted an adjournment to allow time for obtaining legal advice or trial preparation. The duty of the presiding officer, prior to receiving any evidence at a summary trial, is to ask whether the accused requires more time to prepare the accused's case and to grant any reasonable adjournment for that purpose.⁹

Who Has Duty to Provide Information

11. Although the duty to ensure that the information has been provided to an accused rests with the officer exercising summary trial jurisdiction,¹⁰ the actual release of information to or access to physical evidence by the accused may be provided by others, including by the military police.

12. The type of information may affect which authorities may release the information to the accused. The security classification of documents and privacy interests must also be considered. Information must be de-designated or declassified prior to release and may have to be examined in conjunction with the Privacy Act. These considerations apply not only to documents and reports, but also to any annexes or appendices which may be attached.

13. Specific directions exist with respect to the release of Military Police Investigation Case Files to an accused. Where a summary trial is to be held, the release of military police information should be done in conjunction with the Base/Wing SAMP Advisor who will review all requests to determine whether any of the information in possession of the military police should not be provided to an accused. The review will ensure that information will not be released that:

1. may endanger national security or international relations;
2. will reveal the identity of an informant;
3. is likely to impede a current or planned investigation; or
4. may endanger a third party.¹¹

14. Although the presiding officer is responsible for ensuring information is provided to the accused, when military police information is involved, it is the Base/Wing SAMP Advisor who releases the military police information to the accused or assisting officer. If a contentious issue arises, the Base/Wing SAMP Advisor should refer the case to the local unit legal advisor for resolution.

15. All evidence to be relied on at trial must be listed pursuant to Part 2 of the RDP and attached to the RDP. This list must include all investigation reports, witness statements, names of witnesses, and any documentary or physical evidence to be presented at summary trial. Once provision of information is made to the accused the member who provides the information to the accused must sign and date Part 2, the attached list and provide that member's rank and position.

Effect of Failure to Provide Information

16. It does not automatically follow that solely because the requirements to provide information were not followed, that the Charter right to make full answer and defence was impaired. Therefore, non-provision of information will not necessarily result in the finding being set aside on Review.¹² The provision of information is just one component of the right to make full answer and defence.

17. Questions with respect to the provision of information should be directed to the unit legal advisor without delay. Where the issues are complicated, a determination should be made as to whether trial by court martial would be more appropriate in the interests of justice.

Footnotes

¹ R. v. Carosella, [1997] 1 S.C.R. 80.

² R. v. Stinchcombe, (1991) 8 C.R. (4^th) 277 (S.C.C.).

³ As was set out in Stinchcombe at 289, the broad right of provision of information applicable to indictable offences does not automatically apply to less serious offences such as service offences dealt with at summary trial. The Summary Trial Working Group Report at 148-155, concluded that a reduced provision of information would survive section 7 Charter analysis or would be justified under section 1. Obligations regarding provision of information for courts martial will be more onerous than those for summary trials. In Stinchcombe the Supreme Court of Canada held that there was a duty to disclose all relevant evidence.

⁴ See Chapter 4, Fairness and the Application of the Charter.

⁵ QR&O 108.15(1).

⁶ R. v. Stinchcombe, at 283. The Supreme Court of Canada stated that the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to provide information is consistent with this role.

⁷ QR&O 108.15 Note B.

⁸ QR&O 108.15(2) and QR&O 108.15 note C. Also see Chapter 12, Elections.

⁹ QR&O 108.20(3)(a).

¹⁰ QR&O 108.15 indicates that the officer having powers of summary trial must ensure that the proper information has been provided to the accused.

¹¹ Security Orders for the Department of National Defence and the Canadian Forces, Vol 4, Military Police Policies, Chapter 5, para. 7.

¹² See Chapter 15, Review of Summary Trial Proceedings.