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Criminal Disclosure. Crown hiding evidence?

An ongoing criminal matter in Ottawa is bringing up questions about the Crown Attorney’s duty to provide criminal disclosure. A decorated Afghanistan war veteran, Collin Fitzgerald, will soon be going to trial to fight a charge of breach of recognizance. Fitzgerald was on bail and one of the conditions was that he remain at his parent’s house. In July, 2014 there was a fire at his home in Iroquois, Ontario. Neighbours took pictures of the blaze and turned the pictures over to the police. The police identified Fitzgerald in these pictures and charged him with a breach. According to the neighbours, they did not identify Fitzgerald in the pictures and three of them gave statements to police saying that it was not Fitzgerald in the pictures. With Fitzgerald going to trial to fight the breach charge, the witnesses are asking why their statements to police seem to have disappeared. The statements were not part of the disclosure packet that was given to Fitzgerald’s lawyer.

Criminal Disclosure Decision

In the landmark decision R v. Stinchcombe (1991), the Supreme Court of Canada ruled that the Crown has a legal duty to disclose all relevant criminal disclosure to the defence. All relevant information whether inculpatory or exculpatory has to be provided to the accused, as soon as possible. The Crown can still claim privilege and doesn’t have to disclose anything that is clearly irrelevant. The basis of this rule is the right for the accused to make full answer and defence which is enshrined in section 7 of the Charter of Rights and Freedoms.

Smordin Law Approach

When a new client comes to our firm, the first thing we do is request disclosure. Ideally, this disclosure is available for the lawyer to pick up at the first court appearance (although it can sometimes take longer). Then a lawyer will go through the disclosure to see if there is any important information missing. If there is, they will request additional/particular criminal disclosure from the Crown. It’s an essential part of your defence so it’s important to have a lawyer who knows what to look for.

The Fitzgerald case will not be resolved until December but it emphasizes the importance of the Crown’s duty to disclose and of the defence’s role in making sure that full criminal disclosure has occurred.

Smordin Law Criminal Lawyers
41 King William St. #200
Hamilton, ON
L8R 1A2
Tel: 1 (905) 525-0005
Toll Free: 1 (844) 525-0005
Fax: 1 (905) 525-5716
www.smordinlaw.com




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