Client charge with aggravated assault of infant daughter. Crown did not disclose evidence from a previous U.S. case where expert testified which cast doubt on the exact nature of her credentials/credibility. Crown took position initially that it was work product and later that it was not “fruits of the investigation” and was accordingly not disclosible to the Defence per Stinchcombe or McNeil. Defence argued any information within the possession of the Crown which can be used to challenge the credibility of an expert must be disclosed, and objected to its use in cross-examination of the expert. Case adjourned for 8 months to deal with Charter challenge.
Held: Court found such information is neither work product nor “fruits of the investigation”, and as such must be disclosed to the Defence in advance of trial or as soon as it is discovered.
Violation of s. 7 of the Charter. Defence application for a stay of proceedings however was too extreme a remedy as no evidence of bad faith by Crown in believing this type of evidence did not have to be disclosed, and give that alternate remedies could alleviate sufficiently the prejudice to the client. Court ordering a variety of orders that permit the Defence to do a “do over” of this witness in order to present the evidence afresh or to focus only on the credential issue. Defence also granted the ability to call an entirely different witness if it so chose. Defence also granted “throw-away” costs to be determined at the close of the case in order to reimburse the client for any legal or expert costs related to the forced adjournment of the trial.