Flowing from a spate of privacy cases at SCOTUS (most notably, Snyder v. Phelps covered by fellow Contributing Editor, Alysia Lau here and our Amici Curiae here and NASA v. Nelson that I covered here and here) as well as contributing to a general trend of ruling for “no constitutional right to privacy,” FCC v. AT&T Inc. (2011) No. 90-1279, 582 F. 3d 490 decided on March 1, 2011 continued a line of rulings that corporations as separate legal persons are not entitled to the personal right to privacy.

The telecommunications company, AT&T, was under investigation by the Federal Communications Commission (FCC). This independent agency of the U.S government had, in the words of the Third Circuit decision (pdf link) “ordered the production of invoices, internal emails and billing information, responses to interrogatories, names of employees involved in alleged overbilling, and AT&T’s assessment of the extent to which its employees’ actions violated its internal code of conduct.”

SCOTUS held that corporations do not have a right of personal privacy for purposes of Exemption 7(C) of the Freedom of Information Act that requires corporations to disclose law enforcement records to a federal agency unless disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.”

AT&T’s argument against disclosing its “embarrassing” record of overcharging the U.S government for its E-Rate services was that these records fell under the exemption mentioned above due to the corporation’s alleged right to personal privacy for its internal information.

A Lesson in Using the Dictionary

In a unanimous 8-0 decision, Roberts wrote what has been identified by the media as a “teacher-like” “grammar lesson” in corporate privacy rights:

Adjectives typically reflect the meaning of corresponding nouns, but not always. Sometimes they acquire distinct meanings of their own. The noun “crab” refers variously to a crustacean and a type of apple, while the related adjective “crabbed” can refer to handwriting that is “difficult to read”… “corny” can mean “using familiar and stereotyped formulas believed to appeal to the unsophisticated,” which has little to do with “corn” (“the seeds of any of the cereal grasses used for food”); and while “crank” is “a part of anaxis bent at right angles,” “cranky” can mean “given to fretful fussiness…

All of this to explain that:

“Person” is a defined term in the statute; “personal” is not. When a statute does not define a term, we typically “give the phrase its ordinary meaning”…“Personal” ordinarily refers to individuals. We do not usually speak of personal characteristics, personal effects, personal correspondence, personal influence, or personal tragedy as referring to corporations or other artificial entities. This is not to say that corporations do not have correspondence, influence, or tragedies of their own, only that we do not use the word “personal” to describe them.

The decision turned on a strict interpretation of the language of the statute and utilized several dictionary definitions to show that “ordinary usage of a noun and its adjective form may have different meanings as disparate as any two unrelated words.” SCOTUS ruled on this reasoning that artificial entities are not “personal” despite being separate legal “persons” and are therefore not subject to the statutory exemption for the disclosure of “personal” information.

Bring-On the Adjective-laden Legal Reasoning

I often enjoy reading decisions by SCOTUS and rarely hesitate to applaud colourful commentary and generous use of non-legalese descriptions and catchy phrases to lay down the law (particularly by Justice Scalia) — a method rarely used by Canadian Supreme Court justices, except Justice Binnie’s clever dissent in R. v. Sinclair.

This U.S. judgement is certainly one of these brisk, informative reads as it decided the case in 15-pages, a rather dry subject matter of corporate “personhood” by making it more approachably human (excuse the pun). Why else did the judge choose to compare a random choice of words such as “corn” vs. “corny,” “crab” vs. “crabbed,” and “crank” vs. “cranky” in a case about corporate personality, except for reasons of style and plain language emphasis that spells it out for the layperson without cloaking the answer in convoluted legalese. (This style is particularly intriguing for someone like myself with an interest in journalism, as it provides my legal coverage with plenty of quotable material). The bottom-line message in this case is clear: “personal privacy” is not a statutory right, not for corporations, but for living, breathing human beings.

As discussed in my prior post about this case, at issue was whether “low risk” contract employees at Caltech’s Jet Propulsion Laboratory (JPL) could be subject to open-ended background check investigations.

These background checks began as a part of a Bush administration security directive that included asking employees questions about “recent illegal drug use,” “financial integrity,” “mental or emotional stability,” and “general behavior or conduct” (that some interpreted this question as referring to sexual orientation). The basic issue is whether these employees have a constitutional right to information privacy in this context as the case landed on the docket of the SCOTUS when the Ninth Circuit Federal Court of Appeal granted a temporary injunction against these disputed background checks.

SCOTUS decided to uphold NASA’s background checks for employees of contractor companies. In a unanimous 8-0 opinion delivered by Justice Alito, SCOTUS reversed the Ninth Circuit’s decision. Alito’s judgment took a straight-forward, narrow, and somewhat bland route to come to its conclusion without delving deeper into the constitutional question. Instead, the Court permitted background checks in the narrow scope of “routine use” by emphasizing the importance of the work done at the JPL that is critical to NASA’s mission and “all of it funded with a multibillion dollar investment from the American taxpayer.” As such, “the Government has a strong interest in conducting basic background check into the contract employees minding the store at JPL.”

As is often the case, Justice Scalia’s reasons, here in concurrence, contained far more colourful commentary in reaching the same result through his own rather different reasoning. Particularly interesting was Scalia’s judgment that outright rejected the notion of a U.S. constitutional right to “informational privacy,” dismissing the respondents’ position in this case as “meritless,” “absurd,” “utter silliness,” and “ridiculous.”

Scalia wrote:

Like many other desirable things not included in the Constitution, “informational privacy” seems like a good idea—wherefore the People have enacted laws at the federal level and in the states restricting the government’s collection and use of information.  But it is up to the People to enact those laws, to shape them, and, when they think it appropriate, to repeal them.  A federal constitutional right to “informational privacy” does not exist.

Scalia’s opinion expressed concern for creating a right that would dramatically increase the number of lawsuits relating to right to information privacy:

Moreover, the utter silliness of respondents’ position in this case leaves plenty of room for the possible success of future claims that are meritless, but slightly less absurd.  Respondents claim that  even though they are Government contractor employees, and even though they are working with highly expensive scientific equipment, and even though the Government is seeking only information about drug treatment and information from third  parties that is standard  in background checks, and  even though the  Government is liable for damages if that information is ever revealed, and even though NASA’s  Privacy Act regulations are very protective  of private information, NASA’s background checks are unconstitutional.  Ridiculous.

Previously at The Court, I predicted a “reluctant defeat” of the Ninth Circuit decision with “new limits” set on privacy rights. My predictions were partially correct— SCOTUS did indeed defeat the Ninth Circuit decision, but did so resoundingly and without much hesitation.

Unfortunately, Justice Alito’s decision contained little discussion clarifying the existence or scope of an American constitutional right to informational privacy. This in essence opens up the issue to further public debate, which is another element of the decision that I found surprising. The failure of the SCOTUS to discuss it and the tepid interest in the blogosphere suggest to me that claiming informational privacy as a constitutional right is waning in the age of Twitter and Facebook (notably beginning with an aging bench at SCOTUS who did not grow up with the internet). Even for those who have become accustomed to the changes in privacy rights driven as much by technology as political developments, this case may indicate a trend towards losing traditional notions of a right to privacy, especially when it is confined to narrow spheres of employment disclosure. In its conclusion the case spells out a judicial reluctance to deal with a tricky and ambiguous constitutional treatment of privacy rights in the 21st century. This is unfortunate, as this is not an issue likely to be disappearing any time soon.

Video Footage of G-20 Arrest and Parodic Cartoons Go Viral

The events leading up to Josephs’ lawsuit began this summer during the G-20 Summit in Toronto. At a protester rally, Constable Josephs, nicknamed by online detractors as “Officer Bubbles,” reprimanded a young female protester, 20-year old Courtney Winkels, for blowing bubbles in front of police officers. Following these protests, the video-taped encounter as well as a series of animated cartoons mocking Constable Josephs appeared on YouTube.

This video-taped encounter shows the officer sternly warning the protester that “if the bubble touches me, you’re going to be arrested for assault.” The protester then questioned the officer’s rationale and was subsequently taken into custody later that day by another police officer on a charge of possession of a weapon for a dangerous purpose. A series of 8 animated cartoons created using a free-animation website called “Go!Animate” subsequently surfaced, depicting a police officer named “A. Josephs” who resembled Constable Josephs. These cartoons showed “A. Josephs” arresting various individuals, including cartoon caricatures of Barack Obama and Santa Clause, as well as assaulting a news photographer without cause– all to the sound of humorous funk music playing in the background. The animated cartoon then became subject to anonymous online comments harshly criticizing Constable Josephs.

Constable Josephs alleges that these cartoon videos are “false and devastatingly defamatory,” have subjected him to “ridicule, scandal, and contempt,” and resulted in “threats of physical harm against himself and his family.” He requests remedies including an injunction preventing the defendants from publishing and continuing to publish pictures and statements relating to the “Officer Bubbles” cartoons. YouTube has since removed the animated videos and closed accounts that originally posted them; however, re-postings by other anonymous users of the offending cartoons have since surfaced online.

The Anonymity of Online Commenters

This case harkens back to last year’s online defamation case, Warman v. Wilkins-Fournier, 2009 CanLII 14054 (ON S.C.) (“Warman”) where the Ontario Superior Court of Justice, in analysing public policy, held in favour of disclosure for the plaintiffs to properly litigate against the defendant over freedom of expression. The court in Warman ordered the owners of the offending website to reveal the identities of eight anonymous online commenters, which could be the same result here in Josephs v. YouTube.

This case has sparked debate from two camps. Some argue entitlement to freedom of expression that we are all guaranteed under Section 2(b) of the Charter and which the cartoons as parodies or satires of a political event are protected forms of expression. The defendants are likely to celebrate the free-flow of information especially for political speech in a medium that hosts real-time debate. Internet dialogue is unlike traditional print and broadcast media— the latter often requiring passing higher gate-keeping standards and access to expensive production facilities for mass dissemination. On the other side, despite a potential for “libel chill,” the plaintiff is concerned that unlimited freedom of speech, particularly on the internet where moderation is applied sparingly, could open a floodgate. Cases like Josephs v. YouTube and Warman involve plaintiffs and their supporters calling for reasonable limits by anonymous online commenters who are viewed as playing too close or crossing over the legal line into defamation while hiding behind a veil of anonymity.

Online defamation is a relatively recent phenomenon; defendants are increasingly litigated for defamation occurring on message boards, blogs, websites and other internet platforms. In my view, traditional laws of defamation are mistakenly applied to online postings by categorizing internet speech alongside print and broadcast mediums. The correct approach for internet defamation should be evaluated on a case-by-case basis. The standard for internet defamation should be lower until a plaintiff can prove quantifiable injury (such as malice) beyond the scope of the trivial or fair criticism. While preventative measures such as online commenting policies and “net-etiquette” reduces the likelihood of injury, unlike other mediums, issues of publication, republication, jurisdiction and dissemination are multiplied by the breadth, speed, and anonymity of the internet. Unfortunately, unbridled enthusiasm (or criticism) can result in online defamation that is increasingly litigated in courts to identify the faces behind anonymous internet-users before damages for defamation can be attributed. Litigation also risks silencing voices that normally are unheard, uncensored expressions while attempting to balance individual reputational rights. Whatever your views on online defamation, please share your reasonable comments with us.

“Informer Privilege” or “Informant Privilege”—the protection of the identity of a confidential informant—is one of the most prohibitive and absolute privileges in the Canadian legal system. The Supreme Court of Canada reiterated its importance last week by unanimously overturning both lower court decisions in R. v. Basi, 2009 SCC 52. (The BC Supreme Court decision may be found here, while the BC Court of Appeal decision may be found here.)

Writing for the Supreme Court, Justice Fish noted:

The informer privilege has been described as “nearly absolute.” … [I]t is safeguarded by a protective veil that will be lifted by judicial order only when the innocence of the accused is demonstrably at stake. Moreover, while a court can adopt discretionary measures to protect the identity of the informer, the privilege itself is “a matter beyond the discretion of a trial judge.” (at para. 37 [citation omitted])

Informer privilege is considered such an important societal interest that it cannot be balanced against any other interests relating to the administration of justice. Informer privilege does not cede to the accused’s right to full disclosure, which, according to R. v. Stinchcombe, [1991] 3 S.C.R. 326, is a constitutionally protected right under section 7 of the Charter. The privilege is subject only to the very narrow “innocence at stake” exception, which engages s.11(d) of the Charter, and operates only when the accused can establish that the information is necessary to demonstrate his or her innocence (i.e. the accused is unable to otherwise raise a reasonable doubt about his or her guilt). See R. v. Leipert, [1997] 1 S.C.R. 281.

The societal interests in protecting informer identity are (i) the effective operation of law enforcement:

“The rule gives a peace officer the power to promise his informers secrecy expressly or by implication, with a guarantee sanctioned by the law that this promise will be kept even in court, and to receive in exchange for this promise information without which it would be extremely difficult for him to carry out his duties and ensure that the criminal law is obeyed” (Bisaillon v. Keable, [1983] 2 S.C.R. 60 at 106)

and (ii) protection of informants, with a recognition that aiding law enforcement is the duty of all citizens:

[Informant privilege] is premised on the duty of all citizens to aid in enforcing the law. The discharge of this duty carries with it the risk of retribution from those involved in crime. The rule of informer privilege was developed to protect citizens who assist in law enforcement and to encourage others to do the same” (R. v. Leipert, [1997] 1 S.C.R. 281 at para. 9).

Factual Background and Judicial History
The R. v. Basi saga is infamously known as the “BC Rail Corruption Case.” Three former public servants stood accused of fraud, breach of trust, and money laundering over allegations that they had received bribes in exchange for providing confidential information to one of the bidders competing in the first phase of the BC Rail privatization. An in-depth factual background and detailed analysis of the BC Court of Appeal and trial decisions was provided last year on TheCourt.ca: “Informer Privilege Hearings: Unfairly Non-Adversarial or Appropriately Restrictive?” (December 1, 2008).

The informer privilege issue in Basi arose as a result of the Crown disclosing a redacted version of police notes to the defence. Upon further application for disclosure, the Crown claimed informer privilege over the redacted portions of the documents, claiming that disclosing the information would compromise the identity of a police informant. The Crown also applied for an ex parte in-camera hearing so that the trial judge could consider informer privilege in the absence of the accused parties or their counsel (2007 BCSC 1898 at paras.2-6). The Crown claimed that “the presence of defence counsel [at the in-camera hearing] … will violate that informer privilege and identify the informant” (2008 BCCA 297 at para. 3).

At trial, Madam Justice Bennett disagreed with the Crown and said that the in-camera hearing would occur with defence counsel present. To protect the informer privilege, she required written undertakings from defence counsel, and further bound counsel to a court order stating that they “will not disclose anything heard in the in-camera hearing to anyone … . Failure to comply with this order will result in a contempt of court hearing” (at para. 22). The BC Court of Appeal dismissed the appeal on the grounds that it had no jurisdiction to hear it (discussed further below). Alternatively, the majority of the Court of Appeal would have found that allowing the defence counsel to attend the in-camera hearing would be within the rightful discretion of the trial judge. In a strong dissent, Madam Justice Ryan stated that “the trial judge erred in permitting defence counsel to be present for the inquiry” (at para. 110).

The Supreme Court Judgment
The Supreme Court unanimously overturned both lower courts, holding that “the trial judge erred in permitting defence counsel to hear the testimony of an officer tending to reveal the identity of the putative informant” (at para. 44). Building on the dissent of Madam Justice Ryan at the Court of Appeal, Justice Fish noted the awkward and professionally questionable position the defence counsel would be placed in if they were privy to the identity of the informer but were prohibited from revealing it to their clients. Such a situation would “strain the necessary [solicitor-client] relationship” (at para. 45). The Court’s decision makes it clear that the counsel for the accused in a criminal trial are not within “the circle of privilege” where informer privilege is at stake.

The Court then went on to address section 650(1) of the Criminal Code, raised by the defence at trial. Section 650(1) states:

Subject to subsections (1.1) to (2) and section 650.01, an accused, other than an organization, shall be present in court during the whole of his or her trial [emphasis added].

Justice Fish held that the in-camera hearing to determine informant privilege did not constitute a part of the “trial” but was only an ancillary and discrete proceeding, thereby not engaging section 650(1).

However, after robustly “laying down the law” on informer privilege, Justice Fish went on to recognize the complexities inherent in the case at bar and outlined opportunities for the defence team’s involvement to ensure a fair and accurate resolution. He clarified that defence counsel ought to be barred from such hearings only where “the identity of the confidential informant cannot be otherwise protected” (at para. 53). I find this aspect of the decision to be blurry at best. The protection of an informant’s identity involves ensuring that even the most innocuous information that could lead to identification is privileged. It would be difficult for a trial judge to foresee and determine beforehand whether such information will be exposed during, for example, an interview with the police officer who knows the identity of the informant.

Justice Fish’s other proposals, such as inviting written submissions from defence counsel that could be entertained during the hearing, or providing the defence with a redacted transcript of the hearing after the fact, seem much more reasonable in ensuring the accused’s interests are not undermined. In his conclusion, Justice Fish left it open to the trial court to determine on a case-by-case basis what the best course of action would be in a given trial: “The trial judge, however, will be in a better position to decide how best to craft safeguards that mitigate any potential unfairness arising from the ex parte nature of the proceedings” (at para. 58).

(II) The Right to Preliminary Appeals in Criminal Cases and s.11(b) of the Charter

A second issue in this case was whether the Crown had a right to appeal the trial decision regarding informant privilege. The issue is, of course, a preliminary matter in an ongoing criminal trial. Can such a decision be appealed (effectively putting on hold the criminal proceeding while the procedural issue is determined)? Under paragraph 37.1(1)(b) of the Canada Evidence Act, R.S.C. 1985, c. C-5, “An appeal lies from a determination under any of subsections 37(4.1) to (6) to the court of appeal of a province from a determination of a trial division or trial court of a superior court of the province.” Section 37 deals with the Crown invoking public interest privilege and subsections (4.1) to (6) deal with the trial court’s discretion in determining the privilege.

The trial judge clearly indicated in her decision that the Crown had the right to appeal her decision, and suspended the voir dire to “give the Crown the opportunity to determine whether it wishes to appeal this ruling, which it has the right to do under s. 37 of the Canada Evidence Act” (at para. 23). The majority of the Court of Appeal found this to be erroneous, holding that it had no jurisdiction to entertain the appeal because the trial judge’s decision was a disclosure order rather than a ruling under subsections 37(4.1) to (6). The Supreme Court of Canada overturned the Court of Appeal on the matter, dismissing the defence’s cross-appeal and finding that the trial judge’s decision was an order under section 37(4.1) and, therefore, open to appeal. The Court held that although the section 37 public interest privilege is much more relaxed and subject to balancing than informer privilege, this distinction is not determinative of whether the trial judge’s decision engaged section 37. By arguing that the trial judge’s decision was procedural in nature rather than amounting to a section 37 disclosure order, the defence was “favour[ing] form over substance and recast[ing] the judge’s order in an erroneous light” (at para. 29).

The defence in this case has already brought an application for a stay of proceedings against the accused due to unreasonable delay (under s.11(b) of the Charter). The defence is probably going to argue section 11(b) from a number of different angles. In my opinion, a large part of the delay would be considered reasonable given the fact that documentary disclosure and discovery involves hundreds of thousands of documents and that the defence itself requires a lot more time to review the discovery and prepare its case. However, the two years of appeals and cross-appeals arising from the informer privilege issue (the trial decision was issued on December 7, 2007 and the Supreme Court finally resolved the appeals on November 19, 2009) will probably be central to the determination of prejudice due to unreasonable delay.

My preliminary research indicates that appellate courts have upheld the right to a mid-trial appeal under section 37 of the Canada Evidence Act (see e.g. R. v. Omar, 2007 ONCA 117; R. v. Pilotte (2002), 156 O.A.C. 1). However, the constitutionality of the provision itself has never been challenged. If the appeal process under section 37 is upheld then it effectively undermines any argument of unreasonable delay since the appeal process going all the way up to the Supreme Court of Canada is reasonably expected to take years. Another important issue in the section 11(b) analysis will be whether the Crown has been purposely stonewalling the disclosure process, as claimed by the defence, and whether the Crown can discharge its burden of justifying the delay (see R. v. Askov, [1990] 2 S.C.R. 1199).

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.