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PROCEDURE - Crown's duties - Disclosure - Trials - Mistrial

Tuesday, March 20, 2018 @ 6:51 AM  


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Application by the defendant Robinson for a mistrial. Robinson was charged and convicted of second degree murder in the death of his wife. Two witnesses who gave evidence in the trial delivered to the Edmonton Victims Service Unit (VSU) their applications for economic restitution in the event of a conviction. Robinson took the position that the claims for restitution were subject to the Crown’s disclosure obligation once the Crown came into possession of the material. Robinson further submitted that the material came into the Crown’s possession just before the case closed but was not passed on to the Defence. That failure to disclose allegedly affected Robinson’s ability to make full answer and defence. The Crown took the position that it had no obligation to disclose that a witness or any perceived victim had availed themselves of the remedial provisions of the Criminal Code that provided for restitution. Alternatively, the Crown submitted that there was no possible air of reality to the defence’s submission that the failure to disclose could have in any way affected the outcome.

HELD: Application dismissed. The VSU was not a division of the police force and the police were therefore never in possession of the documents submitted by the witnesses. The Crown probably came into possession of the claims forms just before the trial ended and jury deliberations began. Copies were promptly disclosed to the Defence. For public policy reasons, materials filed under the restitution sections of the Criminal Code were generally not disclosable as to detail, unless exceptional circumstances made it necessary to disclose them. Even if disclosure had been required, there was no reasonable possibility that non-disclosure could have affected the outcome of the trial and the impugned non-disclosure did not affect the overall trial fairness.

R. v. Robinson, [2018] A.J. No. 146, Alberta Court of Queen's Bench, A.W. Germain J., February 8, 2018. Digest No. TLD-March192018004