R. v. Dixon (S.) (1998), 166 N.S.R.(2d) 241 (SCC);
498 A.P.R. 241
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Temp. Cite: [1998] N.S.R.(2d) TBEd. FE.068
Spencer Dixon (appellant) v. Her Majesty The Queen (respondent)
(25834)
Indexed As: R. v. Dixon (S.)
Supreme Court of Canada
Gonthier, Cory, McLachlin, Iacobucci and Major, JJ.
February 19, 1998.
Summary:
Dixon and five others were charged jointly with aggravated assault following a vicious beating that left the victim brain-damaged.
The Nova Scotia Supreme Court, in a judgment reported 148 N.S.R.(2d) 321; 429 A.P.R. 321, convicted all accused. In a subsequent decision (149 N.S.R.(2d) 104; 432 A.P.R. 104), the court sentenced Dixon to seven years’ imprisonment. Dixon appealed against conviction and sentence. Dixon claimed that the trial judge (1) failed to consider relevant evidence; (2) misapplied the law respecting identification evidence; (3) erred in using out-of-court statements of Dixon’s co-accused; (4) reached an unreasonable verdict; (5) that the Crown failed to make timely disclosure of four witness statements; and (6) the sentence was manifestly excessive.
The Nova Scotia Court of Appeal, Bateman, J.A., dissenting, in a judgment reported 156 N.S.R.(2d) 81; 461 A.P.R. 81, dismissed both the conviction and sentence appeals. The first four grounds of appeal were dismissed without discussion for the reasons stated in the appeal of one of the other accused (see R. v. Cole (D.) (1996), 152 N.S.R.(2d) 321; 442 A.P.R. 321). The court held that the nondisclosed statements were of no weight and there was no reasonable probability that, had this information been available at or before the trial, the trial outcome might have been different. Dixon received a fair trial notwithstanding the nondisclosure. Bateman, J.A., would have ordered a new trial, stating that the majority test requiring an accused to show a “reasonable probability” that the result might be different was setting too high a standard; that the test should be “the accused (appellant) must satisfy the court that, as a result of the nondisclosure, he lost a realistic opportunity to garner evidence or make decisions about the defence, which, in turn, rendered the trial process unfair or might have affected the outcome of the trial”. The accused appealed.
The Supreme Court of Canada dismissed the appeal. The Crown breached its duty to disclose, but that did not mean the accused’s right to make full answer and defence was violated. The nondisclosed information was of limited relevance, defence counsel made a tactical decision not to push for disclosure, there was no reasonable possibility that the trial result would have been affected and there was no trial unfairness. Accordingly, there was no basis to order a new trial under s. 24(1) of the Charter.
Civil Rights – Topic 3133
Trials – Due process, fundamental justice and fair hearings – Criminal and quasi-criminal proceedings – Right of accused to make full answer and defence – The Supreme Court of Canada held that the Crown’s failure to disclose information did not necessarily mean the accused’s right to make full answer and defence was denied – The accused had the additional burden of establishing a reasonable possibility that nondisclosure affected the trial outcome or the overall fairness of the trial process – The court stated that “the reasonable possibility to be shown under this test must not be entirely speculative. It must be based on reasonably possible uses of the nondisclosed evidence or reasonably possible avenues of investigation that were closed to the accused as a result of the nondisclosure. … the reasonable possibility that the undisclosed information impaired the right to make full answer and defence relates not only to the content of the information itself, but to the realistic opportunities to explore possible uses of the undisclosed information for purposes of investigation and gathering evidence.” – See paragraphs 33 to 36.
Civil Rights – Topic 8380.20
Canadian Charter of Rights and Freedoms – Denial of rights – Remedies – New trial – [See first
Criminal Law – Topic 4505
].
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The Supreme Court of Canada restated that the Crown was obliged to disclose all relevant material in its possession, so long as the material was not privileged – Material was relevant if it could reasonably be used by the defence to meet the Crown’s case – The threshold requirement for disclosure was quite low – Where there was a reasonable possibility of the information being useful in making full answer and defence, there was a breach of the accused’s s. 7 Charter right to disclosure – However, if there was a breach of the duty of disclosure which could not possibly affect the reliability of the result reached or the overall fairness of the trial process, there would be no basis to order a new trial under s. 24(1) of the Charter, since no harm would have been suffered by the accused – A breach of the duty to disclose was not synonymous with a violation of the Charter right to make full answer and defence – See paragraphs 20 to 24.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The accused was convicted of aggravated assault – The Crown innocently failed to disclose four witness statements – Knowledge of the existence of the witness statements came to counsel during the trial – Counsel chose not to seek production, raising the issue of due diligence and whether a tactical decision was made not to pursue them – The Nova Scotia Court of Appeal held that counsel appeared to make a tactical decision not to pursue disclosure, which was an important factor in determining whether to order a new trial – The second important factor was the materiality of the nondisclosed statements – The court held that the accused must establish that there was a reasonable probability that had the statements been disclosed, the trial outcome might have been different – The Crown need not prove lack of prejudice to the accused – The court stated that the statements would not have assisted the accused in advancing a defence and did not damage the Crown’s case by diminishing the credibility of its witnesses – The accused received a fair trial – The statements were of no weight and any suggested use of them to the benefit of the accused was highly speculative – The Supreme Court of Canada affirmed the decision – The information did not render the result unreliable and did not affect the fairness of the trial – See paragraphs 25 to 56.
Criminal Law – Topic 4505
Procedure – Trial – Special duties of Crown – Duty to disclose evidence prior to trial – The Supreme Court of Canada discussed defence counsel’s duty respecting Crown disclosure – The court stated that “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 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” – See paragraphs 38.
Cases Noticed:
R. v. Stinchcombe, [1991] 3 S.C.R. 326; 130 N.R. 277; 120 A.R. 161; 8 W.A.C. 161; 68 C.C.C.(3d) 1; 8 C.R.(4th) 277, refd to. [para. 20].
R. v. Egger (J.H.), [1993] 2 S.C.R. 451; 153 N.R. 272; 141 A.R. 81; 46 W.A.C. 81; 82 C.C.C.(3d) 193; 103 D.L.R.(4th) 678; 21 C.R.(4th) 186, refd to. [para. 20].
R. v. Chaplin (D.A.) et al., [1995] 1 S.C.R. 727; 178 N.R. 118; 162 A.R. 272; 83 W.A.C. 272; 96 C.C.C.(3d) 225, refd to. [para. 21].
R. v. Carosella (N.), [1997] 1 S.C.R. 80; 207 N.R. 321; 98 O.A.C. 81; 112 C.C.C.(3d) 289; 142 D.L.R.(4th) 595, refd to. [para. 22].
R. v. Collins (M.E.), [1995] 2 S.C.R. 1104; 183 N.R. 285; 82 O.A.C. 365; 99 C.C.C.(3d) 385, refd to. [para. 32].
R. v. M.H.C., [1991] 1 S.C.R. 763; 123 N.R. 63; 63 C.C.C.(3d) 385; 4 C.R.(4th) 1, refd to. [para. 34].
R. v. Bramwell (H.L.), [1996] 3 S.C.R. 1126; 204 N.R. 373; 83 B.C.A.C. 81; 136 W.A.C. 81, affming. 72 B.C.A.C. 125; 119 W.A.C. 125; 106 C.C.C.(3d) 365 (C.A.), refd to. [para. 37].
R. v. S.E.S. (1992), 100 Sask.R. 110; 18 W.A.C. 110 (C.A.), refd to. [para. 37].
R. v. McAnespie (R.B.), [1993] 4 S.C.R. 501; 162 N.R. 155; 68 O.A.C. 185; 86 C.C.C.(3d) 191, refd to. [para. 38].
Statutes Noticed:
Criminal Code, R.S.C. 1985, c. C-46, sect. 21(1) [para. 40].
Counsel:
Lance Scaravelli, for the appellant;
Kenneth W.F. Fiske, Q.C., and Richard B. Miller, for the respondent.
Solicitors of Record:
Scaravelli & Associates, Halifax, N.S., for the appellant;
The Nova Scotia Public Prosecution Service, Halifax, N.S., for the respondent.
This appeal was heard on December 5, 1998, before Gonthier, Cory, McLachlin, Iacobucci and Major, JJ., of the Supreme Court of Canada.
On February 19, 1998, Cory, J., delivered the following judgment in both official languages for the Supreme Court of Canada.
