In R v. Stinchombe the Supreme Court of Canada recognized an affirmative duty on the Crown to disclose all relevant evidence in the hands of the Crown to a defendant in advance of the defendant having to make a decision on how he or she elects to proceed or to set a trial date. This duty was expanded in R v. Mcneil to include production of police discipline records. It is also recognized that items such as use of force reports with respect to the case at hand are relevant and ought to be produced to the defence.
All police services in Ontario are mandated by statute to implement policies on how to investigate domestic violence occurrences. Section 29 of Ontario Regulation 3/99 Adequacy and Effectiveness of Police Services requires all police services boards to have a policy on investigations into domestic violence occurrences. In addition, section 12(1)(d) requires the Chief of Police to develop and maintain procedures on and processes for undertaking and managing investigations into domestic violence occurrences.
The overall thrust of these policies clearly acknowledge and promote the need for a thorough investigation which seeks to ascertain who is the dominant aggressor before the laying of charges. Not surprisingly, the one policy that I am familiar with, namely, the Toronto Police Service policy stipulates that all persons who were present and observed the occurrence are to be interviewed - including the suspect. Clearly, that practice makes perfect sense particularly as it relates to third parties who witnessed the occurrence. Such persons could confirm or refute the allegation.
What is defence counsel to do when faced with a situation where the police may have failed to investigate an occurrence in accordance with their police services domestic violence policy ? In such circumstances the first order of business is to seek production of the subject policy under the authority of R v. Stinchcome and R v. Mcneil. The fact that the manner of the police investigation of these types of occurrences is statutorily mandated puts the disclosure of such polices on a similar footing to police misconduct records and use of force reports. The danger of non-compliance by a police officer involved in investigating a domestic violence occurrence is best illustrated by an example.
John and Linda have an incident at their home in which Linda alleges that John assaulted her. Sally their 12 year old daughter was present and witnessed the entire incident. Linda reports to the police two weeks after the incident and asks them not to interview her daughter. The police comply with Linda's request. The police do not interview John regarding the incident. The police then set out and arrest and charge John. As part of John's release conditions he is removed from the family home and has minimal contact with his daughter Sally. Some eight months later John is at trial seeking production of the domestic violence policy of the investigating police service. The Crown has closed its case without calling Sally or the investigating police officers.
It should be readily evident that production of the domestic violence policy is relevant and necessary in the above-noted scenario. The failure of the police to comply with their own policy in the conduct of the investigation has the potential to impair trial fairness for John. Clearly, John ought not to be required to call a witness at trial that he has no knowledge of what she will testify to at trial. John is supposed to have full disclosure of the case he has to meet prior to setting a trial date and is by virtue of the non-compliance with the policy deprived of this fundamental right and in my view a fair trial.
I would be pleased to hear what other lawyers have to say about this issue.
All police services in Ontario are mandated by statute to implement policies on how to investigate domestic violence occurrences. Section 29 of Ontario Regulation 3/99 Adequacy and Effectiveness of Police Services requires all police services boards to have a policy on investigations into domestic violence occurrences. In addition, section 12(1)(d) requires the Chief of Police to develop and maintain procedures on and processes for undertaking and managing investigations into domestic violence occurrences.
The overall thrust of these policies clearly acknowledge and promote the need for a thorough investigation which seeks to ascertain who is the dominant aggressor before the laying of charges. Not surprisingly, the one policy that I am familiar with, namely, the Toronto Police Service policy stipulates that all persons who were present and observed the occurrence are to be interviewed - including the suspect. Clearly, that practice makes perfect sense particularly as it relates to third parties who witnessed the occurrence. Such persons could confirm or refute the allegation.
What is defence counsel to do when faced with a situation where the police may have failed to investigate an occurrence in accordance with their police services domestic violence policy ? In such circumstances the first order of business is to seek production of the subject policy under the authority of R v. Stinchcome and R v. Mcneil. The fact that the manner of the police investigation of these types of occurrences is statutorily mandated puts the disclosure of such polices on a similar footing to police misconduct records and use of force reports. The danger of non-compliance by a police officer involved in investigating a domestic violence occurrence is best illustrated by an example.
John and Linda have an incident at their home in which Linda alleges that John assaulted her. Sally their 12 year old daughter was present and witnessed the entire incident. Linda reports to the police two weeks after the incident and asks them not to interview her daughter. The police comply with Linda's request. The police do not interview John regarding the incident. The police then set out and arrest and charge John. As part of John's release conditions he is removed from the family home and has minimal contact with his daughter Sally. Some eight months later John is at trial seeking production of the domestic violence policy of the investigating police service. The Crown has closed its case without calling Sally or the investigating police officers.
It should be readily evident that production of the domestic violence policy is relevant and necessary in the above-noted scenario. The failure of the police to comply with their own policy in the conduct of the investigation has the potential to impair trial fairness for John. Clearly, John ought not to be required to call a witness at trial that he has no knowledge of what she will testify to at trial. John is supposed to have full disclosure of the case he has to meet prior to setting a trial date and is by virtue of the non-compliance with the policy deprived of this fundamental right and in my view a fair trial.
I would be pleased to hear what other lawyers have to say about this issue.
