Dwayne's Case — Possess child Porn — Press Report

CROWN BEARS COST OF PRODUCING DISCLOSED EVIDENCE
By Elizabeth Raymer, The Lawyers Weekly Magazine, 24 October 1997

TORONTO—In a ruling that may have a significant impact on Crown disclosure obligations, an Ontario Judge has ordered the Crown to pay the costs of reproducing videotapes for a defence counsel.

Last October, 508 videotapes were seized from Dwayne B., 35 of which were alleged by the Crown to be child pornography or obscene.

The cost of copying was estimated at $180 per tape, totalling about $6,300 for 35 tapes.

Viewed at Station

The prosecutor had insisted that costs for reproduction be borne by Mr. B., or alternatively that he, his counsel and any retained expert view the tapes at the police station.

But Mr. B.'s counsel, Craig Penney of Toronto, argued that disclosure was the responsibility of the prosecutor, and thus the cost of reproduction was the obligation of the state.

He also submitted that viewing the tapes at the police station was impractical, lacked a neutral or private atmosphere, and posed problems with the continuity and integrity of the original tapes, which would be used as evidence in court.

Mr. Justice David Watt of the Ontario Court (General Division) agreed.

"It is the prosecutor's obligation to provide such fundamental or basic disclosure," he wrote. "It is the prosecutor's further obligation, in my respectful view, to pay for it."

Mr. Justice Watt cited R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1, in which the Supreme Court of Canada held that in indictable cases, a duty is imposed on the prosecutor to disclose to the accused all relevant material in the possession or control of the prosecutor.

From that case, the Judge concluded that "an accused does not appear to have any absolute right to disclosure or production of original material."

He added that it is not uncommon for disclosure to include copies of relevant tapes, transcripts or translations.

Mr. Justice Watt also referred to the findings of the Attorney General's committee on charge screening, disclosure and resolution discussions (the Martin Committee).

"It would seem clear from the report of the committee that, exceptional cases aside, disclosure of videotapes should be made by copy."

Exceptional Cases

"It is also fair to say that, in exceptional cases where other rights are in conflict, the constitutional requirement may be met by providing an opportunity for private viewing."

The Judge found that privacy and public interests in the case before him were not further compromised by copying, viewing, circulating or distributing the tapes "beyond what is necessary to give effect to the applicant's constitutional right."

On disclosure costs, Mr. Justice Watt noted that little had been said, particularly when a dispute arises.

However, the Martin Committee had recommended that the Ministry of the Attorney General pay for second or subsequent copies of Crown briefs intended for disclosure purposes, and that "an accused person should not have to pay for basic disclosure."

"Disclosure is a constitutional right of every person accused of crime," Mr. Justice Watt said. "There is a correlative obligation upon the state to respect that right, as fully as it is given."

"The obligation is unconditional. It does not come with a price tag, at all events, for disclosure of what is fundamental to the prosecutor's case."

"I'm very pleased with the decision," Mr. Penney said, adding that it was "a very clear endorsement" of the Martin Committee report.

"The cost issue, I think, is going to have the most impact" on lawyers, he added. Noting that it has been common for counsel to be charged for getting "basic disclosure," he said the administrators of the legal aid plan were pleased with the decision "because they routinely authorize disbursements for stuff that's now, according to Mr. Justice Watt, the responsibility of the Crown."

"The cost of producing a disclosure should be no different that the cost of heating [a courtroom] in the winter. [The Judge] seems to have endorsed that."

Crown counsel Kerry Hughes declined to comment on the case pending the trial.

[This article originally appeared in the 24-October-1997 issue of The Lawyers Weekly published by LexisNexis Canada Inc.]

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