Delayed Disclosure Leads to Stay

A recent pronouncement on delay came from our Court of Appeal in the R. v. Walker, 2013 SKCA 95 decision. In that case the Court of Appeal dealt with an appeal by the Crown after a stay was entered for unreasonable trial delay. The respondent was charged in September 2009 with sexual assault. His trial was scheduled for September 2012. The preliminary inquiry had to be adjourned due to the Crown’s late disclosure of the complainant’s medical records. A four-month delay resulted. The preliminary inquiry was again adjourned due to late disclosure of a letter from an RCMP officer questioning the veracity of the complainant’s statement. After disclosure of the letter, the defence requested further disclosure resulting in the Crown disclosing at least three police officers’ involvement concerning the veracity of the complainant. Defence counsel requested an adjournment of the preliminary inquiry to deal with the new disclosure and to prepare properly for the preliminary inquiry. The adjournment caused a delay of five months. The length of the total delay was two years, 11 months and 24 days. The trial judge attributed nine months of delay to the Crown as a result of the adjournments of the preliminary inquiry. The trial judge concluded the respondent suffered actual and inferential prejudice related to respondent’s stress and anxiety and witness’ ability to recall the events. In dismissing the Crown’s appeal, the Court held that the trial judge did not err in allocating to the Crown the delay caused because of the second adjournment of the preliminary inquiry. The Court found that the late disclosure precipitated the request for an adjournment. The lateness of the Crown’s disclosure did not give defence counsel sufficient time to determine whether the RCMP letter would impact the preliminary inquiry and how she would approach cross-examination. The Court of Appeal confirmed that late disclosure can lead to adjournments and made the following remarks confirming it is the Crown who bears the burden to disclose:
34 The Crown cannot shortly before a preliminary inquiry provide what in this case was somewhat novel disclosure regarding the credibility of the complainant and then, in response to defence counsel asking further questions about it, say that credibility is not an issue at the preliminary inquiry. While issues of credibility are not foremost in the consideration of the judge hearing the preliminary inquiry, credibility remains an issue to be explored from the viewpoint of the defence. Defence counsel, given the short time frames involved in this case, was entitled to have more than three days to digest and figure out what the unusual disclosure meant and how it affected her cross-examination of the complainant, if at all.
35 That said, I am not suggesting that every disclosure of new information shortly before a preliminary inquiry will justify the defence asking for an adjournment. Whether it is justified will be case specific. Without exhaustively listing all the considerations, the kind and nature of information disclosed, the time before the scheduled date and whether or not the adjournment request in the circumstances appears to be tactical could all matter.

67 The Crown’s arguments cannot prevail for two simple reasons. First and foremost, the Crown failed in its statutory duty to notify the accused of the existence of records in its possession let alone with the particularity stipulated in by Mills, supra. Second, it is the Crown which bears the duty to disclose. As stated by Gunn J. in R. v. Pidskalny, 2012 SKQB 114, [2012] S.J. No. 170 (QL) at para. 100:
100 The Supreme Court has made it clear that failures or delays in disclosure are the responsibility of the Crown. Adjournments necessitated by the failure to provide disclosure, even when requested by the defence, are attributable to the Crown for the purposes of s.11(b).
(see R. v MacDougall, supra)
69 Having regard to the Crown’s failure to notify the accused as required by s.278.2(3), I find the delay associated with the first scheduled preliminary hearing until the re-scheduled date, a period of four months, solely attributable to the Crown. Evidence of the Crown’s efforts to obtain DNA evidence is, in my view, immaterial to this issue.