Reasonable Doubt: Information, disclosure, and cover-ups

Laurel Dietz is one of the writers of Reasonable Doubt.

If you have followed anything in the news besides the American election as of late, you will likely recall the shocking videos of the mistreatment Ashley Smith recently released by the Correctional Service of Canada. Currently the coroner’s inquest into her death is being conducted and the videos were the subject of many heated court battles prior to the inquest beginning and after it had started.

Prior to the inquest beginning, Smith’s lawyers demanded disclosure of these videos. Their request was denied by the coroner, so they appealed. The Ontario Superior Court of Justice determined that the coroner had applied the wrong legal test and that the coroner had to reconsider whether the videos should be disclosed. There was the strong suggestion that when she did so, she should order the disclosure of the videos.

In the Ashley Smith case, the fact that the Correctional Service fought so hard to bury the videos, first refusing to disclose the videos to the parties in the inquiry and then later attempting to prohibit the public from having access to the videos, is just as important as the videos themselves. Disclosure is everything in a court battle; the necessity for full disclosure in court cases ends some potential court battles before they begin, and unjustified non-disclosure raises uncomfortable questions and awkward suggestions of a cover-up.

Every trial lawyer can tell you of hours spent combing disclosure for the “smoking gun” that will win their case or their quests for seeking further information and evidence that could cement their case-winning theory.

Disclosure in civil cases and criminal cases differs slightly, because in civil cases all parties have an obligation to make full disclosure, while in criminal cases the disclosure obligation is only on the Crown. The disclosure obligation means each party responsible must disclose everything relevant, in their possession and control, which is not privileged, to the other side. Disclosure is not limited to what you need to prove your case, but anything that may help the other side as well.

Making disclosure to say the least is an onerous obligation. Failure to make relevant disclosure, in any context, is a serious ethical transgression. The stakes are high for determining what needs to be disclosed. Non-disclosure in the Robert Dziekanski inquiry was a career-ender for one prominent lawyer and the fuss the Correctional Service has made over the disclosure of the videos in Ashley Smith’s inquiry has certainly raised some eyebrows.

When parties cannot agree on whether or not particular information should be disclosed, the matter ends up before a judge. The rules for disclosure are relatively simple; applying the rules is another matter. Going in, the presumption tends to be in favour of disclosure. The party refusing disclosure must demonstrate to a judge that the information is either clearly not relevant to the issues in play, not information they control, or information that is privileged.

In criminal law, the stakes are even higher to obtain and make full disclosure because it can mean the accused person’s liberty. It is not unheard of that the difference between disclosure and non-disclosure can be the difference between a conviction and an acquittal.

On that point, the understanding used to be that Crown counsel were not advocates trying to win or lose any given case, but rather were arbiters of justice trying to ensure that at the end of the day the truth was discovered and justice was served. Transparency and full disclosure went hand in hand with pursuit of justice and Crown counsel’s role as an arbiter of justice.

Very recently, however, it seems there has been a shift away from considering Crown counsel merely as arbiters of justice. If this shift goes so far that Crown counsel are required to be advocates for the state as defence counsel are advocates for their clients, it seems inevitable that more criminal cases will be prolonged while battles for disclosure are fought and more “smoking guns” will be found at the last minute. Hopefully, this doesn’t lead to embarrassing questions of a cover-up bringing our entire criminal justice system into disrepute.

Laurel Dietz is a criminal defence lawyer at Cobb St. Pierre Lewis. Reasonable Doubt appears on Straight.com on Fridays. You can send your questions for the column to its writers at straight.reasonable.doubt@gmail.com.

A word of caution: Don’t take this column as personal legal advice, because it’s not. It is intended for general information and entertainment purposes only.