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R. v. Basi, Virk and Basi, 2007 BCSC 788 - Justice Bennett

Cases of Note / 01.06.2007

[21]  It is also important not to forget that many of the cases of wrongful conviction point to non-disclosure as the first step down the path to grave injustice.  See, for example, the Royal Commission on the Donald Marshall Jr. Prosecution, the Commission on Proceedings Involving Guy Paul Morin and most recently, the Report of the Commission of Inquiry Into Certain Aspects of the Trial and Conviction of James Driskell at pp. 98-110.

[22]  The police and the Crown can never lose sight of what Sopinka J. said in Stinchcombe, at para. 12:

…the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.

[58]  While it is commendable that the Crown is doing a final check for notes, it is too little and too late.   Police notes are usually the second thing provided to defence counsel, after the Report to Crown Counsel.  Disclosure is a constitutional right.  As I stated earlier, this right has not been sufficiently respected so far in this process. I say that knowing that massive disclosure has occurred already.  At this juncture, the only remedy sought is a disclosure order which clearly has been justified on the unusual facts in this case.

[59] The defence is entitled to disclosure in a timely fashion.