The Rest of the Story of R. v. Stinchcombe: A Case Study in Disclosure Issues

Abstract

Stinchcombe is a decision which is oft-quoted but not well understood or properly interpreted by the courts. This article reviews the facts of the Stinchcombe litigation and suggests that the Courts have failed to properly apply the principles enunciated therein. In the initial Supreme Court decision Sopinka J. suggested the adoption of the civil model of pretrial disclosure in the criminal context: the Crown, he suggested, should err on the side of inclusion and consider it a constitutional duty to disclose everything that could be relevant to the case. The courts have failed to properly apply this decision, as evidenced by the judicial interpretation of "relevance," the expectation that defence counsel will police prosecutors' compliance with the disclosure obligation, and the failure of the courts to apply appropriate remedies or sanctions where disclosure obligations have not been properly met. The author suggests that practitioners should reconsider the principles of Stinchcombe, especially in light of proposed changes to the Alberta Rules of Court which might make disclosure requirements in the civil process less stringent.