Insufficent Disclosure
I hit the car from behind in May 2008 and even though the accident was very small and no one was injured, I was charged for careless driving. There are two crown witnesses for the incident - one was other car's driver and the other claims that he was sitting on his home's front steps. I've one witness who was sitting besides me. My court date was in June 2009 has been adjourned to August 2009 because of insufficient disclosure.
From my full disclosure request, the judge ordered at that time the crown must provide a copy of officer's ticket and notes. The judge didn't say anything whether the crown must provide address and criminal record of witnesses even though they were requested in a disclosure. The judge didnt ask to see any evidence of request at that time. I've sent 2 more requests in last 2 months (so that would make total three requests) asking for these information but I haven't received any response from the crown.
1 - Last time in court in June, the Crown read loudly what was requested in the disclosure and argued that criminal check and address information is irrelevant and the judge didnt object it so I assume he seemed to agree with it. Next time in August when I'm going to court Im planning to make an argument to the judge that the criminal check information is relevant or not that can be determined only upon discovery. My argument is the crowns argument that it is irrelevant is only based on presumption. Im going to argue that the witness had left scene and his behaviour was doubtful. He was not present when the police officer had arrived on scene and showed up later again and became a crown witness. I need to know what he did when he flew the scene. Im also served a legal notice from other witness (who was driving the car that I hit from behind) lawyer for personal injury claims.
In R. v. McNeil, 2009 SCC 3 (CanLII) section 5.1.2, it is stated "Burden on applicant is significant but not onerous." I think Ive raised sufficient doubt to discover criminal check. Therefore, the crown must discover the information before disclosing it as it has a reasonable possibility to affect the outcome of the trial.
2 - I also intend to take some photographs from where the witness saw the incident. This information is very helpful to my defence. As there are some trees around the scene, I'm very sure that the witnesses view was obstructed and whatever he mentioned to the officer can have reasonable doubts. I can do that only if the crown provides me address of the witness as the witness saw the incident from the front steps of his home. My understanding is I need his permission to go to his home otherwise Im trespassing his property. So, the crown is controlling this information which is preventing me make a full answer to my defence.
In R. v. McNeil, 2009 SCC 3 (CanLII) para 20,
"Implicit in the Crowns broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accuseds case. Otherwise, the Crown would not have obtained possession of it (OConnor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accuseds interest in obtaining disclosure of all relevant material in the Crowns possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession."
My question is can I make the above arguments and stay the proceeding on the ground of non disclosure? What chances I have in successfully staying the proceeding with above arguments?
Thank you for responding.