Dear Sir or Madam,
Tuesday through Friday of this week we will focus on military issues in honour of Remembrance Day. But first, we would like to commemorate one of the most important events in criminal law. Today is the 25th anniversary of the decision in R v Stinchcombe1, released on November 7th, 1991. This landmark ruling compelled prosecutors to give over any relevant information they had obtained to the defense. This process is known as “disclosure”.
Disclosure includes all the files provided to the defense by the prosecution. In some cases, this can be nothing more than the police report and a few witness statements. In more complex cases, there may be filing cabinets full of documents. This entire process is founded in an old common law rule. Previously at common law, the scope of what must be turned over was open to interpretation. The BNA Act grants provinces discretion over court procedure,2 so disclosure could vary greatly between provinces. In this way Stinchcombe was, in part, meant to standardize disclosure between jurisdictions.3
The issue in Stinchcombe was that a potential witness had made statements which could have worked in favour of the accused. The Crown chose not to call this witness, and also did not inform the defense of the statements. There was a section 7 Charter4 issue with the Court concluding that not having this information interfered with the ability of the accused to mount a full defense; a principle of fundamental justice.5
The new standard established by Stinchcombe was that any relevant fact to the case had to be disclosed to the defense. This included both inculpatory evidence (evidence potentially linking the accused to the crime) and exculpatory evidence (evidence potentially showing that the accused did not commit the crime). The Crown can choose to leave out irrelevant facts, and remove informant names if necessary. The Crown is, however, required to err on the side on inclusion when it comes to preparing the disclosure package.6
It is interesting how recent social and legal developments are. Some legal principles which we now consider fundamental to the administration of justice have only been achieved within the last generation. Who knows what cases, working their way through the system right now, may create important developments in the future?
Your Humble and Obedient Servants,
1 3 SCR 326,  SCJ No 83.
2Constitution Act, 1867 (UK), 30 & 31 Vict, c 3, s 92(14), reprinted in RSC 1985, Appendix II, No 5.
3Supra, note 1.
4Canadian Charter of Rights and Freedoms, s 7, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.
5Supra, note 1.