Adjournment: The Only Remedy Available for Late Disclosure as Provided in R. v. Bjelland

The accused’s right to make a full answer and defence as well as the right to full disclosure has been brushed aside by the SCC in its recent ruling in R. v. Bjelland, 2009 SCC 38. In a close 4:3 decision, the SCC supported the final view that the only real remedy available for late disclosure is adjournment. The SCC concluded that evidence could only be excluded in the “clearest of cases”. This ambiguous standard has been retained from its conception in R. v. O’Connor, (1995) 4 S.C.R. 411, without changes or updates.

In this decision, the SCC has given the prosecution unstated leeway in their timing for disclosure of information. The prosecution has the opportunity to introduce new evidence a few days before trial with the only remedy available to the accused being adjournment.

Facts of the Case
On December 23, 2003, Mr. Bjelland’s vehicle was stopped upon entering Canada from the United States at the border crossing at Del Bonita, Alberta. The consequent search of the vehicle and attached utility trailer led to the discovery of 22 kilograms of cocaine hidden in two metal drawers underneath the trailer’s bumper. Mr. Bjelland was charged with importing cocaine and possession of cocaine for the purpose of trafficking.

On February 25, 2005, Mr. Bjelland pleaded not guilty following his preliminary hearing. After various adjournments, the final court date was set at May 1, 2006. Nearly one month before the trial date, on March 29, the Crown disclosed the transcript of a videotaped KGB statement from Robert Friedman. At this time, the Crown indicated that Friedman would be called on as a witness. Following this disclosure, eleven days before trial, the Crown provided the accused’s counsel with a five-page statement of facts from another proceeding relating to one Todd Holland, whom the Crown intended to call as a witness at trial. More information was disclosed nine days before trial on April 22.

At this point, the accused sought an order for a stay of proceedings, or, alternatively, an exclusion of the evidence stating that the late disclosure of evidence relating to Friedman and Holland has prejudiced Mr. Bjelland’s right to make a full answer and defence. The trial judged ordered an exclusion of the late disclosure evidence as per section 24(1) of the Charter. The accused was acquitted. The Court of Appeal, however, set aside his acquittal and ordered a new trial, stating that the trial judge “committed a reviewable error … by failing to consider whether a less severe remedy than the exclusion of significant evidence could cure the harm done to the respondent by the late disclosure, while still preserving the integrity of the justice system”. The SCC concurred with the Court of Appeal decision and dismissed the appeal. The SCC concluded that evidence could only be excluded as a remedy in a situation where its admission would result in “an unfair trial” or “undermine the integrity of the justice system.”

So What is An “Unfair Trial”?
Under section 24(1) of the Charter, before entitlement to any remedy, the party seeking the remedy must establish a breach of his or her Charter rights — in this case, section 7 of the Charter. This section protects the right of the accused to make a full answer and defence. R. v. Stinchcombe, (1991) 3 S.C.R. 326, finds that in order to make a full answer and defence, the Crown must provide the accused with complete and timely disclosure. Justice Rothstein in Bjelland reiterates these disclosure rules.

The purpose of “complete and timely disclosure” is to ensure that the accused receives a fair trial. Timely disclosure provides the accused with enough time to formulate a strong defence, assuring a reliable verdict based on a fair disclosure of information and ample time for both sides to devise well-reasoned arguments.

But what constitutes a fair trial? The majority quoted Justice McLachlin (as she then was) in R. v. Harrer, (1995) 3 S.C.R. 562, stating that a fair trial is a

[…] trial that appears fair, both from the perspective of the accused and the perspective of the community. A fair trial must not be confused with the most advantageous trial possible from the accused’s point of view: R. v. Lyons, [1987] 2 S.C.R. 309, at p. 362, per La Forest J. Nor must it be conflated with the perfect trial; in the real world, perfection is seldom attained. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused. [Emphasis added by majority in Bjelland]

Fairness, in essence, is equated with procedural fairness, another ambiguous standard.

Remedies under Section 24(1) of the Charter
If, however, it was established that the accused’s trial was “unfair”, the SCC considered the remedies available under section 24(1) of the Charter. Failure to disclose evidence by itself does not constitute an infringement of section 7. On the contrary, the accused must show “actual prejudice to [his or her] ability to make full answer and defence in order to be entitled to a remedy under s.24(1)”.

Typically, the remedy for such a violation will be a disclosure order and/or adjournment. However, there may be extreme cases where the prejudice to the accused or to the integrity of the justice system is irremediable. Only in those “clearest of cases” will a stay of proceedings will be appropriate. The SCC set out examples of such “clear cases”, including situations where an adjournment would unreasonably delay the trial of an in-custody accused or where the Crown has withheld evidence through deliberate misconduct tantamount to abuse of process.

In this case, however, the prejudice to the Mr. Bjelland could be remedied through an adjournment and disclosure order without compromising the integrity of the justice system.

Adjournment: The Only Remedy Available for Late Disclosure
Theoretically, there may be a number of remedies available for late disclosure including a disclosure order, adjournment, or exclusion of evidence. Nevertheless, the SCC has confirmed that the only practical remedy available for late disclosure is adjournment. Any remedy beyond this would require the accused to demonstrate that he/she has suffered a prejudice, beyond the mere delay brought upon by the late disclosure.

In addition, the SCC’s decision in Bjelland suggests that the Crown can introduce new evidence within a few days of the trial and the only remedy available is to postpone the trial. In Bjelland, the Crown failed to disclose before the first day of the trial during the preliminary inquiry. By overlooking this misdemeanor, the SCC has given the prosecution free rein to hide or suppress crucial evidence until the start of trial. This suppression of information may have an egregious effect on the accused’s defence strategy, which would change significantly depending upon the information provided in the preliminary inquiry. Furthermore, the high court’s indifference towards procedural rules and regulations of the preliminary inquiry may act as incentive for the Crown to ignore procedural due diligence.

There are several issues that have been brought up by this case that need to be further considered and analyzed, including the meaning of a “fair trial” and remedies for late disclosure available under section 24(1) of the Charter. Patience continues to be a virtue as we settle in and wait to see any changes in future cases of a similar vein.