New & Notable: Return of Disclosure

The legal saga of Basi, Virk and Basi continues; in the most recent installment 2011 BCSC 314, 2011 CarswellBC 564[2011] BCJ No 420, the Crown brought an application for the return of all disclosure as well as application materials filed by the accused in relation to a previous Stinchcombe application.  In short, the Crown argued that all disclosure is provided with an implied undertaking that the material will only be used in the context of the charges from which it was provided and once those charges are completed the disclosure should be returned. 
Aneal Basi was opposed to the application arguing that there is no implied undertaking [para 7].  Dave Basi and Virk accept the implied undertaking but resist the return of the materials [para 8].
In a thorough decision, AW MacKenzie ACJSC first tackled the issue of whether there was an implied undertaking [paras 11-46].   With respect to that issue, MacKenzie ACJSC first recognized that "an accused who receives disclosure material pursuant to the Crown's Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding" [para 42].  On the basis of this undertaking MacKenzie ACJSC agreed with the Crown that since the proceedings are over the accused are not permitted to make any further use of the materials [para 45].
Having found that such an undertaking exists, MacKenzie J considered the impact from the use of these materials on the Stinchcombe application [para 47-64].  In doing so, she rejected the accused argument that the use of these materials in court, the access to them by the media and the reference to them in previous rulings somehow removes this implied undertaking:
...it is, in my opinion, immaterial that some of the Application Materials, or information contained in them, is accessible to the public from other sources. Indeed, Griffin J.'s comments apply more forcefully in the criminal context given the restrictions on the public examination of criminal files. The public availability of documents produced pursuant to Stinchcombe obligations does not of itself displace the limited purpose for which the documents were produced to the defendants [para 63].
Finally MacKenzie ACJSC considered the return of the disclosed materials [para 64-77].  In doing so she considered the issues at which the implied undertaking is aimed: minimization of the intrusion on privacy generated by compelled production and to prohibit improperly motivated proceedings to gain access to materials [para 72] .  Citing the large volume of material and number of third party interests implicated in the matter, Her Honour held that it was within the jurisdiction of the court and consistent with the implied undertaking to order the return of the materials.
 
DG Mack

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