R. v. Dixon

R. v. Dixon
Collection
Supreme Court Judgments
Date
1998-02-19
Report
[1998] 1 SCR 244
Case number
25834
Judges
Gonthier, Charles Doherty; Cory, Peter deCarteret; McLachlin, Beverley; Iacobucci, Frank; Major, John C.
On appeal from
Nova Scotia
Subjects
Constitutional law
Notes
SCC Case Information: 25834
Decision Content
R. v. Dixon, [1998] 1 S.C.R. 244
Spencer Dixon Appellant
v.
Her Majesty The Queen Respondent
Indexed as: R. v. Dixon
File No.: 25834.
1997: December 5; 1998: February 19.
Present: Gonthier, Cory, McLachlin, Iacobucci and Major JJ.
on appeal from the court of appeal for nova scotia
Constitutional law ‑‑ Charter of Rights ‑‑ Fundamental justice ‑‑ Duty to disclose ‑‑ Accused convicted of aggravated assault -- Crown not disclosing statements made by four individuals -- Summary of statements included in police reports provided to defence counsel at trial -- Appropriate test for determining whether Crown’s inadvertent failure to disclose relevant material violated accused’s right to disclosure ‑‑ If right to disclosure violated, appropriate test for determining whether constitutional right to make full answer and defence impaired ‑‑ Effect to be given to defence counsel’s lack of due diligence ‑‑ Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Three persons were injured in a brawl where the attackers surrounded their victims in turn and kicked and pummelled them. Two victims (Gillis and Charman) were badly injured and a third (Watts) was permanently and very seriously injured. The accused, who was tried with four others, was convicted of aggravated assault of Watts. Significantly, he was found guilty both as a principal and as a party (aiding or abetting) under s. 21 of the Criminal Code . During the course of the trial, counsel for all the accused were provided with copies of police occurrence reports which included summaries of statements given by four individuals. Two statements indicated that the persons making them had not witnessed the assaults. The third (Tynes’) stated that the person was with the Crown’s main identification witness in the vicinity of the assaults. It also described that witness’ clothing that night. The fourth (Daye’s) indicated that the person witnessed two of the assaults, identified the location of some of the accused during the assaults and identified some of the assailants. It implicated the accused in an assault for which he was neither charged nor convicted and contradicted the evidence of the main identification witness in certain respects.
None of the four statements was produced by the Crown and this gave rise to a ground of appeal based on the Crown’s failure to disclose information as required by s. 7 of the Canadian Charter of Rights and Freedoms . The Court of Appeal dismissed the appeals. It admitted fresh evidence, however, which indicated that counsel had not only transcripts and statements that made reference to some of the persons whose statements were not disclosed but also a chart and cross‑reference sheet. The accused’s counsel also reviewed the police occurrence reports and decided that nothing in the four statements referred to in those reports would assist the accused in making full answer and defence. The other counsel came to the same conclusion on the basis of the summaries. At issue were: (1) what was the appropriate test to be used in determining whether the Crown’s inadvertent failure to disclose relevant material violated the accused’s right to disclosure; (2) if the right to disclosure were violated, what was the appropriate test to determine whether the Charter right to make full answer and defence was impaired; and (3) in determining whether that right had been impaired, what was the effect to be given to defence counsel’s lack of due diligence.
Held: The appeal should be dismissed.
(1) The Crown’s Duty to Disclose
Where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he or she has also established the impairment of his or her Charter right to disclosure. The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. The Crown accordingly may fail to disclose information which meets the Stinchcombe threshold but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. A court may well find that an accused’s Charter right to disclosure has been breached, and yet deny the remedy of a new trial if it is found that the trial process was fundamentally fair and that there was no reasonable possibility that the result at trial might have been different had the undisclosed material been produced. The right to full disclosure is just one component of the right to make full answer and defence. The Charter right to make full answer and defence is not necessarily impaired solely because the right to disclosure was violated.
The Crown need not produce what is clearly irrelevant. Here, the first two statements had no relevant information at all and there was no reasonable possibility that they could have been of any use to the accused at trial. Both the third (Tynes’) and fourth (Daye’s) statements met the low threshold for disclosure and should have been disclosed.
(2) Impairment of the Right to Make Full Answer and Defence and the Remedy to Be Granted under Section 24(1) of the Charter
In order to determine whether the right to make full answer and defence was impaired, a two‑step analysis must be undertaken. First, to assess the reliability of the result, the undisclosed information must be examined to determine the impact it might have had on the decision to convict. If an appellate court is persuaded that there is a reasonable possibility that, on its face, the undisclosed information affects the reliability of the conviction, a new trial should be ordered. Even if the undisclosed information does not itself affect the reliability of the result at trial, the effect of the non‑disclosure on the overall fairness of the trial process must be considered at the second stage of analysis. This will be done by assessing, on the basis of a reasonable possibility, the lines of inquiry with witnesses or the opportunities to garner additional evidence that could have been available to the defence if the relevant information had been disclosed.
In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account. A lack of due diligence is a significant factor in determining whether the Crown’s non‑disclosure affected the fairness of the trial process. When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive. Rather, they must diligently pursue disclosure.
Whether a new trial should be ordered on the basis that the Crown’s non-disclosure rendered the trial process unfair involves a process of weighing and balancing. If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information and yet remained passive as a result of a tactical decision or lack of due diligence, it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial process.
All these factors must be appropriately balanced. In situations where the materiality of the undisclosed evidence is, on its face, very high, a new trial should be ordered on this basis alone. In these circumstances, it will not be necessary to consider the impact of lost opportunities to garner additional evidence flowing from the failure to disclose. However, where the materiality of the undisclosed information is relatively low, an appellate court will have to determine whether any realistic opportunities were lost to the defence. To that end, the due diligence or lack of due diligence of defence counsel in pursuing disclosure will be a very significant factor in deciding whether to order a new trial.
Here, the accused had the burden of demonstrating that either (i) it is reasonably possible the non‑disclosed statements affected the reliability of his conviction as a principal in the aggravated assault and his conviction for aiding or abetting the assault; or (ii) that it is reasonably possible the non‑disclosure of the statements affected the overall fairness of the trial process. First, the accused did not demonstrate that the non-disclosure of the statements affected each of the alternative conclusions referred to in s. 21(1) of the Code ‑‑ that he either kicked or beat the victim, helped to administer the beating or encouraged the beating. Second, the non‑disclosure did not affect the overall fairness of the trial. The third statement (Tynes’) and the fourth (Daye’s), on their faces, would have had no impact on the reliability of the conviction. The Crown’s failure to disclose did not deprive the defence of opportunities to pursue additional lines of inquiry with witnesses or garner additional evidence flowing from the undisclosed material. A significant factor in reaching this conclusion was defence counsel’s lack of due diligence in pursuing disclosure.
Defence counsel is not entitled to assume at any point that all relevant information has been disclosed to the defence. Just as the Crown’s disclosure obligations are ongoing, and persist throughout the trial process, so too does defence counsel’s obligation to be duly diligent in pursuing disclosure. To do nothing in the face of knowledge that relevant information has not been disclosed will, at a minimum, often justify a finding of lack of due diligence, and may, in certain circumstances, support an inference that counsel made a strategic decision not to pursue disclosure.
Cases Cited
Referred to: R. v. Stinchcombe, [1991] 3 S.C.R. 326; R. v. Egger, [1993] 2 S.C.R. 451; R. v. Chaplin, [1995] 1 S.C.R. 727; R. v. Carosella, [1997] 1 S.C.R. 80; R. v. Collins, [1987] 1 S.C.R. 265; R. v. C. (M.H.), [1991] 1 S.C.R. 763; R. v. Bramwell (1996), 106 C.C.C. (3d) 365, aff’d [1996] 3 S.C.R. 1126; R. v. S.E.S. (1992), 100 Sask. R. 110; R. v. McAnespie, [1993] 4 S.C.R. 501.
Statutes and Regulations Cited
Canadian Charter of Rights and Freedoms, ss. 7 , 24(1) .
Criminal Code, R.S.C., 1985, c. C‑46, s. 21(1) .
APPEAL from a judgment of the Nova Scotia Court of Appeal (1997), 156 N.S.R. (2d) 81, 461 A.P.R. 81, [1997] N.S.J. No. 20 (QL) (sub nom. R. v. McQuaid (Dixon Appeal)), dismissing the accused’s appeal from his conviction for aggravated assault (1996), 148 N.S.R. (2d) 321 (sub nom. R. v. McQuaid), 429 A.P.R. 321, [1996] N.S.J. No. 81 (QL). Appeal dismissed.
L. W. Scaravelli, for the appellant.
Kenneth W. F. Fiske, Q.C., and Richard B. Miller, for the respondent.
//Cory J.//
The judgment of the Court was delivered by
1 Cory J. -- Three issues arise in this appeal:
(1) What is the appropriate test to be used to determine whether the Crown’s inadvertent failure to disclose relevant material constituted a violation of the appellant’s right to disclosure under s. 7 of the Canadian Charter of Rights and Freedoms ?
(2) Where an appellant’s right to disclosure is violated, what is the appropriate test to be used to determine whether his or her Charter right to make full answer and defence was also thereby impaired?
(3) In determining whether an appellant’s right to make full answer and defence was impaired, what effect is to be given to defence counsel’s lack of due diligence?
2 Several aspects of these issues are common to the appeals of Spencer Dixon, Herman McQuaid, Guy Leaman Robart, Cyril Joseph Smith and Stacey Skinner, all of whom were tried together on charges of aggravated assault arising out of the same factual circumstances. All five appeals were heard together by this Court. These reasons will address the common aspects, and separate reasons will deal with any issues that are unique to the other appeals.
I. Factual Background
3 On September 10, 1994, a fraternity hosted a party in Halifax. The evening was uneventful until a young woman named Shannon Burke became involved in a physical confrontation with Terrence Dixon, a young man whom she claimed was the father of her child. Terrence Dixon dragged Burke out of the fraternity house with others following. Two young men who had attended the party ‑‑ Rob Gillis and John Charman ‑‑ attempted to intervene and help Burke. This confrontation escalated and expanded to include a number of young men who attacked Gillis and Charman. Gillis fell to the ground, hit the back of his head and began bleeding badly. A circle formed around Charman, he was hit from behind and had his teeth knocked out.
4 Darren Watts went to the aid of his friend Charman. As soon as he did, the circle of men that had formed around Charman switched its attention to Watts. One from that group knocked him to the ground with a single punch. The men in the group kicked him and continued to do so repeatedly until they fled across the street. The vicious beating left Watts permanently disabled. He underwent two operations including the partial removal of the frontal lobe of his brain. He had to undertake extensive rehabilitation treatment, and has lost the use of his left side. His cognitive and motor skills have not returned to the levels he enjoyed before the assault.
5 Six men, including the five appellants, were convicted of committing an aggravated assault on Darren Watts. At the same trial, the appellant Cyril Smith was also convicted of the aggravated assault of Rob Gillis. The appellants Herman McQuaid and Stacey Skinner were convicted of the aggravated assault of John Charman.
6 During the course of the trial, counsel for all the accused were provided with copies of police occurrence reports. The reports included summaries of statements given by Terris Daye, Terrance Tynes, Travia Carvery and Edmond Levia, none of which had been produced by the Crown. After conviction and sentencing, trial counsel for all of the accused except Skinner met to discuss appeal issues. The statements were produced by the Crown after this meeting at the request of counsel for one of the accused. One of the grounds raised in the appeal pertained to the Crown’s failure to disclose these statements.
7 The Nova Scotia Court of Appeal admitted fresh evidence by way of counsel’s affidavits as to their conduct in pursuing disclosure prior to and during the trial. The affidavits reveal that by the time the preliminary inquiry was held during the week of June 5, 1995, counsel for all accused determined that the same material had been disclosed to all of them. This disclosure did not include the four missing statements or any reference to the fact that these statements had been taken. However, counsel had received a transcript of the sworn statement given by Danny Clayton ‑‑ the Crown’s main identification witness ‑‑ in which Clayton identified Terris Daye and Terrance Tynes as eyewitnesses to the assaults. Counsel also received the statements of Stephen (Dee) Nelson, Nathaniel Robart and Michael Barton, all of whom referred to three of the four individuals whose statements were not disclosed, including Terris Daye. The Court of Appeal observed that all counsel also received a chart dated October 13, 1994 and a cross‑reference sheet dated October 14, 1994. While it is not clear exactly when these documents were received, the Court of Appeal found that defence counsel probably had them prior to the preliminary inquiry, and certainly prior to trial. The chart indicates that Tynes, Daye, Carvery and Levia were in the immediate vicinity when the assaults took place. The cross‑reference sheet also suggests that a statement was taken from Terris Daye.
8 Counsel for all accused met for a pre‑trial conference with Crown counsel, Mr. Craig Botterill, on January 4, 1996. At that time, Mr. Botterill invited all counsel to attend at his office and copy any of the material in the Crown’s file. Counsel representing Cyril Smith attended on behalf of counsel for Spencer Dixon and counsel for Herman McQuaid. Counsel for Guy Robart and counsel for Stacey Skinner attended separately. All three counsel who attended Mr. Botterill’s office stated in their affidavits that the four undisclosed statements were not in the Crown’s file when they reviewed it prior to trial.
9 The trial began on Monday, February 5, 1996. At some point after the trial commenced, Mr. Scaravelli, counsel for Spencer Dixon, asked a police constable for copies of the occurrence reports. Approximately 160 pages of original reports were produced a short time later. Mr. Scaravelli brought these reports to the attention of other counsel, and by Thursday, February 8, 1996, all counsel had copies of the police occurrence reports, which made reference to the four undisclosed statements.
10 By Monday, February 12, 1996, when he had completed his review of the police occurrence reports, Mr. Scaravelli was aware that four statements had been taken by the police and had not been disclosed by the Crown. However, based on summaries of the statements included in the occurrence reports, he decided there was nothing in the statements that would assist the accused in making full answer and defence. He stated in his affidavit that he was confident that all relevant information had been disclosed by the Crown, and he therefore did not pursue the matter further. By that same date three other defence counsel, Mr. Katsihtis, Mr. O’Neill and Mr. Coady, representing Cyril Smith, Herman McQuaid and Guy Robart respectively, were also aware that four witness statements had not been disclosed by the Crown. They too decided, on the basis of the summaries, not to request disclosure of the statements. Ms. Cain‑Grant, counsel for the appellant Skinner, had acted in only one other criminal trial. She believed the summaries in the occurrence reports to be the complete statements given to police and as a result did not seek further disclosure.
II. Decisions Below
A. Nova Scotia Supreme Court (1996), 148 N.S.R. (2d) 321
11 At the trial for the assault on Darren Watts, Saunders J. made very careful and comprehensive findings of fact. He found that the five appellants were part of the group of men who surrounded Watts and were responsible for his beating. Saunders J. found that the appellants, as part of the group around Watts, were there either to beat Watts, to encourage the beating or to stand shoulder to shoulder to entrap him. Applying s. 21(1) of the Criminal Code, R.S.C., 1985, c. C-46 , he found all were guilty of committing an aggravated assault on Darren Watts.
12 The Crown relied heavily on the testimony of Danny Clayton, who admitted to participating in the aggravated assault on Darren Watts and who testified in return for immunity. Clayton was the only Crown witness to identify Watts’s assailants. His character was questioned. Further, he was an accomplice. Saunders J. very carefully scrutinized his evidence. He fully recognized the frailties of eyewitness testimony, but found that they were minimized by Clayton’s presence at and participation in the assault. Clayton also knew the appellants personally, and had grown up with them and lived with them in the same community. These factors were found to have strengthened his evidence of identification. Further, Saunders J. found that Clayton’s evidence was supported, in material respects, by the other evidence adduced. As a result, he was not left with the sense that it would be unsafe to convict the appellants of the aggravated assault of Darren Watts. On the basis of Clayton’s testimony and all the evidence presented he was satisfied beyond a reasonable doubt of their guilt.
13 Saunders J. also accepted Clayton’s testimony that Cyril Smith struck Rob Gillis, and found Smith guilty of the aggravated assault on Gillis. Saunders J. further noted that both Stacey Skinner and Herman McQuaid admitted to striking John Charman in their police statements. These admissions supported Clayton’s testimony that Stacey Skinner and a man whom Clayton tentatively identified as Stephen (Dee) Nelson struck John Charman. The trial judge concluded that Skinner and McQuaid had committed an aggravated assault on Charman.
B. Nova Scotia Court of Appeal (1997), 156 N.S.R. (2d) 81
14 The principal issue before the Court of Appeal was whether the failure to disclose the four witness statements impaired the appellant’s right to make full answer and defence. Chipman J.A., writing for the majority, noted that the parties agreed there was no improper motive in the Crown’s failure to disclose the statements, and that the only potentially material statement was that of Terris Daye.
15 Chipman J.A. found that trial counsel for the appellant did not seek the missing statements or bring the failure to disclose the statements to the attention of the trial judge at the earliest opportunity as they were required to do. It was his opinion that once the Crown produced the police occurrence reports during the course of the trial, defence counsel must have known that four statements had been taken by the police and had not been produced by the Crown. In his view, counsel had a choice at that point ‑‑ “call for the statements or live without them” (p. 93). He found that certain contradictions between the summary of Daye’s statement and Clayton’s testimony would have prompted counsel who had any interest in the statements to investigate these discrepancies further. Chipman J.A. concluded that a tactical decision had been made at trial not to pursue disclosure of these statements, and that a contrary position was only taken following conviction. He observed that a lack of due diligence on the part of defence counsel is an important factor in determining whether to order a new trial.
16 However, the majority went on to dismiss the appeal on the basis that the undisclosed material was of no weight. Chipman J.A. held that on appeal from a conviction, where the Crown has failed to provide full disclosure, an appellant must show “that there is a reasonable probability that had the non‑disclosed material been disclosed, the result might have been different” (p. 104). He then considered the materiality of Terris Daye’s statement in light of this test and concluded that it did not undermine “the overwhelming body of evidence indicat[ing] that there was a circle of black males surrounding and beating Watts” (p. 111). Though Chipman J.A. recognized that there were inconsistencies among the witnesses, he found a surprising unanimity about this circle, which was described from various different vantage points. He further found that Daye either did not see or was unwilling to admit to seeing who attacked Watts, and concluded that there was no reasonable probability that had this statement been available at or prior to the trial, the result might have been different.
17 Chipman J.A. therefore rejected the appellant’s argument that because Daye’s statement contradicted Clayton’s testimony as to the location of some of the accused during the attack on Watts, it could have been used to weaken Clayton’s credibility. He similarly rejected the argument that Daye’s description of inner and outer circles surrounding Darren Watts supported evidence given by other Crown witnesses suggesting that the number of Watts’s attackers was limited to three or four men. Chipman J.A. further noted that the summary of Daye’s statement in the police occurrence report included this description of two circles around Watts, and thus counsel did not lose a realistic opportunity to garner and present evidence flowing from this statement. Chipman J.A. held that there was nothing in the statement that opened any avenue of pre‑trial investigation not already available to diligent counsel.
18 Bateman J.A., in dissent, disagreed with the majority’s conclusion that to merit a new trial, an appellant must show a reasonable probability that the result might have been different had the non‑disclosed material been produced. She held that any inquiry into the materiality of undisclosed information must include a generous assessment of the reasonable possibility that the non‑disclosure impaired the preparation of the defence and fairness of the trial process, and that this inquiry encompassed more than a consideration of the reliability of the result. It was her opinion that there was enough information in Daye’s statement to make it a potentially important resource in assisting with the preparation and presentation of the defence. She could not say that had Daye’s statement been available to the defence, there was no reasonable possibility that the result might have been different, nor could she find that the fairness of the trial was not affected. She thus held that the right of the appellant to make full answer and defence was impaired by the Crown’s non‑disclosure.
19 Bateman J.A. also disagreed with her colleagues’ conclusion that trial counsel for the appellant had failed to exercise due diligence. She shared the majority’s concerns that failure by counsel for the various appellants to provide answers to questions posed at the appeal hearings, the lack of information in the affidavits of defence counsel as to their knowledge of the statement, and the unexplained interest in the statements subsequent to trial gave rise to suspicions that some or all of them may have made a strategic decision not to pursue disclosure. However, she did not conclude that trial counsel for the appellant had made a tactical choice to ignore the Crown’s non‑disclosure. She would have granted the appellant’s request for a new trial.
III. Analysis
A. The Crown’s Duty to Disclose
20 In R. v. Stinchcombe, [1991] 3 S.C.R. 326, it was held that the Crown has an obligation to disclose all relevant material in its possession, so long as the material is not privileged. Material is relevant if it could reasonably be used by the defence in meeting the case for the Crown. Relevance was described in R. v. Egger, [1993] 2 S.C.R. 451, at p. 467, in this way:
One measure of the relevance of information in the Crown’s hands it its usefulness to the defence: if it is of some use, it is relevant and should be disclosed ‑‑ Stinchcombe, supra, at p. 345. This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.
21 Clearly the threshold requirement for disclosure is set quite low. As a result, a broad range of material, whether exculpatory or inculpatory, is subject to disclosure. See Stinchcombe, supra, at p. 343. In particular, “all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses” (p. 345). The Crown’s duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence. See R. v. Chaplin, [1995] 1 S.C.R. 727, at p. 742.
22 The obligation resting upon the Crown to disclose material gives rise to a corresponding constitutional right of the accused to the disclosure of all material which meets the Stinchcombe threshold. As Sopinka J. recently wrote for the majority of this Court in R. v. Carosella, [1997] 1 S.C.R. 80, at p. 106:
The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter . Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice.
Thus, where an accused demonstrates a reasonable possibility that the undisclosed information could have been used in meeting the case for the Crown, advancing a defence or otherwise making a decision which could have affected the conduct of the defence, he has also established the impairment of his Charter right to disclosure.
23 However, a finding that an accused’s right to disclosure has been violated does not end the analysis. As Sopinka J. wisely observed in Carosella, supra, at p. 100, an appellate court must be careful not to “confus[e] the obligation to establish a breach of the right [to full answer and defence] with the burden resting on the appellant in seeking a stay”. Similarly, the initial test which must be met in order to establish a breach of the right to disclosure is analytically distinct from the burden to be discharged to merit the remedy of a new trial. The right to disclosure of all relevant material has a broad scope and includes material which may have only marginal value to the ultimate issues at trial. It follows that the Crown may fail to disclose information which meets the Stinchcombe threshold, but which could not possibly affect the reliability of the result reached or the overall fairness of the trial process. In those circumstances there would be no basis for granting the remedy of a new trial under s. 24(1) of the Charter , since no harm has been suffered by the accused.
24 It will be necessary later to explore in greater depth the nature of the burden to be discharged to merit a new trial. Now it will suffice to observe that for the purposes of this first stage of the analysis, an appellate court may well find that an accused’s Charter right to disclosure has been breached, and yet deny the remedy of a new trial if it is found that the trial process was fundamentally fair and that there was no reasonable possibility the result at trial might have been different had the undisclosed material been produced. The right to full disclosure is just one component of the right to make full answer and defence. It does not automatically follow that solely because the right to disclosure was violated, the Charter right to make full answer and defence was impaired.
Was the Appellant’s Right to Disclosure Breached at Trial?
25 The appellant has based his appeal on the failure to disclose all four witness statements, despite the finding of the Nova Scotia Court of Appeal that “[i]t was apparent from the argument that Daye’s statement is the only one of the four non‑disclosed statements relied on as material to the issue of full answer and defence” (p. 88). Both the majority and dissenting reasons were restricted to a consideration of Daye’s statement. However, the majority evaluated the undisclosed statements solely in relation to their impact on the result reached at trial, and did not consider each statement in relation to the threshold issue as to whether there had been a breach of the appellant’s Charter right to disclosure, although both issues may well have been collapsed into one. As a result, it will be appropriate to consider whether the failure to disclose each of the four statements violated the appellant’s right to disclosure of relevant material.
26 The four statements may be briefly summarized as follows:
(1) The statement of Travia Carvery dated September 16, 1994, indicates that he was inside the fraternity house when the assaults took place and that he did not witness any of the beatings;
(2) The statement of Edmond (“T.J.”) Levia dated September 22, 1994, indicates that he was inside the fraternity house when the assaults took place and that he did not witness any of the beatings;
(3) The statement of Terrance Tynes dated September 21, 1994, reveals that he was in the vicinity of the assaults. He also states that he was with Danny Clayton, the Crown’s main identification witness, while Shannon Burke and Terrence Dixon were arguing, and that he left the scene with Clayton. Tynes also describes the clothing he was wearing that night;
(4) The statement of Terris Daye dated September 19, 1994, indicates that he witnessed two of the assaults. Daye identifies the location of some of the accused during these assaults, and identifies some of the assailants. Daye specifically implicates the appellant in the assault of John Charman, though it is possible that Daye was referring to the assault of Rob Gillis. The appellant was convicted of the assault on Darren Watts only.
27 The Crown has an obligation to disclose all information, whether inculpatory or exculpatory, that could “reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence” (Egger, supra, at p. 467). Even so, “[w]hile the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant” (Stinchcombe, supra, at p. 339). The statements of Carvery and Levia contain no relevant information at all, and there is no reasonable possibility that their statements could have been of any use to the appellant at trial.
28 To minimize the risk of inadvertent non‑disclosure, the Crown might well choose to disclose even those witness statements that do not initially appear to be relevant. The defence obviously knows its case better than the Crown, and something which seems irrelevant could have significance to the defence. However it is clear that neither Carvery nor Levia had any further participation in the incident or in the investigation or prosecution of the appellant. Their statements were irrelevant and the Crown did not breach its obligation to disclose relevant material by failing to produce them.
29 However, the same thing cannot be said of the statement of Terrance Tynes, even though it seems to contain very little relevant information. It is significant that Tynes places himself in the vicinity of the assaults, though he does not identify any of the assailants. He also states he was with Danny Clayton for some part of the evening. Though Tynes does not contradict or add anything to Clayton’s evidence, the fact that Tynes was with Clayton at some point during the assaults may have been of some use to the defence. Tynes’s description of his clothing on the night in question may also have been of some use to the defence in cross‑examining those Crown witnesses who could not identify Watts’s assailants by name and who had to describe the appearance of the men they saw. Although the statement is of marginal value, it does meet the threshold articulated in Stinchcombe and should have been disclosed.
30 The statement of Terris Daye should also have been disclosed. Daye implicates the appellant in the assault of Rob Gillis, for which he was neither indicted nor convicted. Daye also makes certain incriminating remarks about the appellant in the course of his statement, such as “Spencer punched and kicked this guy. He likes to kick.” Daye’s statement also contradicts the evidence given by Clayton in certain respects, and as a result it could possibly have been of some use in challenging Clayton’s credibility. These aspects of Daye’s statement will have to be considered in greater detail in considering whether the appellant’s Charter right to make full answer and defence was impaired by the Crown’s non‑disclosure of this statement. Once again, this statement meets the threshold set out in Stinchcombe and should have been disclosed. It follows that the appellant’s right to disclosure was infringed by the Crown’s inadvertent failure to produce these two statements.
B. Impairment of the Right to Make Full Answer and Defence and the Remedy to Be Granted under Section 24(1)
31 The right to disclosure is but one component of the right to make full answer and defence. Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a result of that violation. Indeed, different principles and standards apply in determining whether disclosure should be made before conviction and in determining the effect of a failure to disclose after conviction. For instance, where the undisclosed material is available for review at trial, the presiding judge will evaluate it in relation to the Stinchcombe threshold to determine whether the Crown breached its obligation to disclose by withholding the material. If it has, an order for production or perhaps an adjournment will be the appropriate remedy. Obviously, these remedies are no longer available after conviction. At this stage, an appellate court must determine not only whether the undisclosed information meets the Stinchcombe threshold, but also whether the Crown’s failure to disclose impaired the accused’s right to make full answer and defence. Where an appellate court finds that the right to make full answer and defence was breached by the Crown’s failure to disclose, the appropriate remedy will depend on the extent to which the right was impaired. Where, as here, the accused was tried before a judge alone, the judge has provided thorough reasons for the decision, and the undisclosed evidenced is available for review, an appellate court is particularly well placed to assess the impact of the failure to disclose on the accused’s ability to make full answer and defence at trial.
32 At this point, something should also be said about the standard to be met by an accused who asserts that the right to make full answer and defence was impaired. It is trite but worth repeating that in all cases where a person claims that a Charter right has been violated, he or she must prove on a balance of probabilities that the violation occurred. Thus, before granting any sort of remedy under s. 24(1) , it must be found that it was more likely than not that the Charter right in question was infringed or denied. See R. v. Collins, [1987] 1 S.C.R. 265, at p. 277.
33 The evidence required to meet this burden and the factors to be considered will differ according to the particular right at issue and the particular remedy sought. For example, where a court is persuaded that undisclosed information meets the Stinchcombe threshold, an accused has met his burden to establish a violation of his Charter right to disclosure. As noted above, the appropriate remedy for such a violation is, at trial, an order for production or an adjournment. Where non‑disclosure is raised on an appeal from a conviction, an accused must, as a threshold matter, establish a violation of the right to disclosure. Further, the accused bears the additional burden of demonstrating on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose.
34 This burden is discharged where an accused demonstrates that there is a reasonable possibility the non‑disclosure affected the outcome at trial or the overall fairness of the trial process. See R. v. C. (M.H.), [1991] 1 S.C.R. 763, at p. 776; Stinchcombe, supra, at p. 348. Imposing a test based on a reasonable possibility strikes a fair balance between an accused’s interest in a fair trial and the public’s interest in the efficient administration of justice. It recognizes the difficulty of reconstructing accurately the trial process, and avoids the undesirable effect of undermining the Crown’s disclosure obligations. This would be the result if the Crown were placed in a better position by withholding rather than disclosing information of relatively low probative value. However, the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of the non‑disclosed evidence or reasonably