Updated: Dec 20, 2020
Pascal, the Appellant, was charged and convicted of sexual assault causing bodily harm. The Appellant coerced S.S. to join him outside on a picnic table at the dock following an alleged attempt from the Appellant to assault the victim S.S. in her motel room. S.S. alleges that the Appellant threw her down on the dock, removed her clothing and attempted to penetrate her while ignoring her pleas to leave her alone. A motel resident, who acted as an eyewitness at the Appellant’s trial, was awakened by the event and provided conflicting testimonies of what she saw. Initially the eyewitness testified to hearing the Appellant and S.S. being loud, but that S.S. didn’t seem like she was under distress. Over a year later, the eyewitness contradicted her initially testimony by adding that S.S. was distressed due to facing the Appellant’s violence and that she saw the Appellant was pulling up his pants. The eyewitness admitted at trial that her initial testimony was not truthful. Despite these discrepancies, the trial judge accepted and relied on the eyewitness’ second testimony in their decision to convict the Appellant of sexual assault causing bodily harm.
The eyewitness’ extensive criminal record and outstanding criminal charges were not disclosed to the defense prior to the trial. The Appellant argues that the Crown’s failure to disclose the eyewitness’ criminal history and outstanding criminal charges did not allow the trial judge to appropriately consider the reliability of the witness, which was crucial given the discrepancies between the witness’ testimonies.
1) Did the Crown breach their duty to disclose when they failed to disclose the criminal history and outstanding charges of this witness to the Defense?
2) If so, should a new trial be ordered?
The Crown breached their duty to disclose when they failed to disclose the criminal history and outstanding charges of their key eyewitness. A new trial is ordered because the undisclosed information may have led to a different result and it affected the overall fairness of the trial.
The Crown must disclose the “fruits of the investigation” and any “obviously relevant” information. “Obviously relevant” information includes information that is necessary in raising a defence. In this case, the eyewitness’ criminal record and outstanding charges were obviously relevant since it contributes to the reliability of the Crown witness.The eyewitness could have been cross-examined on her criminal history, known misconduct and outstanding charges. Her reliability could have led to the eyewitness’ impeachment. The eyewitness’ criminal history and outstanding charges at the time of the trial were known to the police. Therefore, the Appellant’s right to disclosure was breached.
To order a new trial the Court must also consider whether, on a balance of probabilities, the Appellant’s right provide a full answer and defence was impaired by the failure to disclose the information. This right is protected by a Defendant’s right to a fair trial under s.11(d) of the Charter.
Their right to provide a full answer was impaired by this failure since the trial judge might have had a reasonable doubt about the Appellant’s guilt which would have led the trial judge to come to a different conclusion. The eyewitness’ testimony was the main evidence used by Crown to confirm the victim’s complaint. The inconsistencies between the eyewitness’ testimony raises a reasonable doubt as to whether the sexual assault occurred.
The trial judge ultimately relied on the version of the eyewitness’ account that confirmed the victim’s complaint. However, this Court concluded that the outstanding charges that the eyewitness is facing by the same police service dealing with this matter could have motivated the witness to give an account of the events that would best align with the Crown.
Their right to provide a full answer was impaired by the failure to disclose the outstanding criminal charges and criminal history of the Crown’s key eyewitness because failing to do so affected the overall fairness of the trial process. The Appellant could have explored the motivations of the eyewitness to provide a second testimony that further aligned with the Crown’s case in light of the witness’ outstanding charges. This disclosure was necessary in order to fully examine the reliability of this eyewitness. Also, the defense counsel reasonable expected that a witness’ outstanding charges would be automatically disclosed by the Crown.
 R v Pascal, 2020 ONCA 287 at para 5 [Pascal].  Ibid at paras 22, 23  Ibid at paras 25- 28.  Ibid.  Ibid at para 46.  Ibid at para 49.  Ibid at para 51.  Ibid at para 53.  Ibid at para 58.  Ibid at 89, 90.  Ibid at 40.  Ibid at para 41.  Ibid at para 136.  Ibid at para 136, 137.  Ibid at paras 104, 106.  Ibid at para 106.  Ibid at para 128.  Ibid at para 121.  Ibid at para 122.  Ibid at para 125.  Ibid at para 136.  Ibid at para 113.  Canadian Charter of Rights and Freedoms, s 11, Part 1 of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (UK), 1982, c 11.  Pascal, supra note 1 at paras 154, 155.  Ibid at para 142.  Ibid at para 144.  Ibid at para 148.  Ibid at para 152.  Ibid at para 160.  Ibid at para 157.  Ibid at para 158.  Ibid at para 159.
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