Why didn't the Crown inform the witness about the defense's evidence beforehand?

Question

In 2016 ONCJ 155, the judge says with regards to a witness:

[72] In an effort to explain to the Court her continued socializing with Mr. Ghomeshi following the alleged choking incident and over the rest of the 2003 Canada Day weekend, Ms. DeCoutere testified that she wanted to “normalize” the situation and “flatten the negative”, and to not make him feel like a bad host. So, she stuck with their plans and she continued to see him over the weekend. She testified that she kept her distance and certainly did not do anything intimate with him. Having firmly committed herself to this position, she was then confronted with a photograph of herself cuddling affectionately in the park with Mr. Ghomeshi the very next day.

The judge then uses this, among other arguments, to support the position that the witness is not trustworthy, which ultimately causes the case to fail:

[94] Let me emphasize strongly, it is the suppression of evidence and the deceptions maintained under oath that drive my concerns with the reliability of this witness, not necessarily her undetermined motivations for doing so. It is difficult to have trust in a witness who engages in the selective withholding relevant information.

But I'm thinking: evidence can't be presented mid-trial, the Crown counsel must have already been aware that the defense has this photograph. They could have talked to the witness beforehand and could have told her that this photograph exists and therefore that lying about it would certainly fail. If they did so, then perhaps the witness wouldn't commit herself to the position if she knew defense had evidence against it, and would thus appear more trustworthy.

There are several similar paragraphs in the file for other witnesses: the defense asks the witness, notes the answer, then presents evidence contradicting the answer and concludes that the witness is deceptive.

Why wouldn't the Crown tell the witnesses beforehand that defense has all this evidence so that the witnesses wouldn't fall into this 'trap'?

Answer 1

canada

(Note: I answer based on the law that existed at the time of trial. DPenner1 describes how Parliament added another statutory disclosure requirement in response to the kind of tactic used in this case.)

The disclosure obligations of the defence in Canada have not been wholly codified/formalized. Generally, though, the defence does not have an obligation to disclose its evidence to the Crown prior to its use at trial.

For a review of the law, see Goran Tomljanovic, "Defence Disclosure: Is the Right to 'Full Answer' the Right to Ambush?" and M. Anne Stalker, "Charter Roadblocks to Defence Disclosure".

Outside of specific evidence regimes (e.g. prior sexual conduct evidence, expert evidence), and specific defences (like an alibi defence or affirmative defences where the accused takes on the burden of proof), there are no defence disclosure requirements in Canadian jurisprudence. There is also an exception when defence counsel comes into physical possession of incriminating evidence.

While the Crown has an obligation of disclosure, even for impeachment evidence for use in cross-examination (R v. Romain, 75 C.C.C. (3d) 379, citing R. v. Stinchcombe, [1991] 3 S.C.R. 326) the defence does not have this obligation.

In Stinchcombe, the Supreme Court of Canada said:

I would add that 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. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

Courts have specifically noted the special circumstance of the defence seeking to "impeach a complainant." See R. v. R.S., 2019 ONCJ 645:

an accused’s tactical choice to respond to a prima facie case by calling a defence is distinct from the right to challenge the prosecution case through cross-examination. A statutory provision that compels disclosure of impeachment material in advance of cross-examination offends the principle against self-incrimination.

See also R. v. A.M., 2020 ONSC 4541:

It is the view of this court that requiring pre-trial disclosure of the defence’s cross examination material, versus allowing for mid-trial disclosure of the material, unnecessarily infringes the applicant’s rights set out above because of the danger that it will render the cross-examination ineffective. A witness with full advance notice of impeachment material is in a position to tailor their evidence to fit the disclosure.

Answer 2

The defence sees the prosecution evidence; witnesses don’t

From context, it appears that Ms. DeCoutere was a prosecution witness, not the defendant. As such, she would not be privy to the evidence that either the prosecution or defence had or intended to present. No doubt both the prosecution and the defence would have known about the photograph and, I would imagine, it was introduced by the defence precisely because it contradicted the witness’ testimony.

Further, revealing such evidence to her by either side would be misconduct - witnesses are supposed to recount the facts as they recall them without prompting or aide memoirs (police are an exception - they are allowed to refer to their own notebooks).

Answer 3

england-and-wales

Coaching witnesses is not allowed

Informing a witness of what questions they are likely to be asked, and what evidence there may be to undermine their testimony is "coaching" and not allowed. Seee R v Momodou & Limani [2005] EWCA Crim 177

61. There is a dramatic distinction between witness training or coaching, and witness familiarisation. Training or coaching for witnesses in criminal proceedings...is not permitted. ...The witness should give his or her own evidence, so far as practicable uninfluenced by what anyone else has said, whether in formal discussions or informal conversations. The rule reduces, indeed hopefully avoids any possibility, that one witness may tailor his evidence in the light of what anyone else said, and equally, avoids any unfounded perception that he may have done so... ...The risk that training or coaching may adversely affect the accuracy of the evidence of the individual witness is constant. So we repeat, witness training for criminal trials is prohibited.

62. This principle does not preclude pre-trial arrangements to familiarise witness with the layout of the court, the likely sequence of events when the witness is giving evidence, and a balanced appraisal of the different responsibilities of the various participants...Witnesses should not be disadvantaged by ignorance of the process, nor when they come to give evidence, taken by surprise at the way it works. None of this however involves discussions about proposed or intended evidence. Sensible preparation for the experience of giving evidence, which assists the witness to give of his or her best at the forthcoming trial is permissible... ...Nevertheless the evidence remains the witness's own uncontaminated evidence.

Presumably, although I haven't looked, canada will have a similar provision.

Answer 4

I fully agree with Jen's answer in general circumstances. However, the case you cite is peculiar. It resulted in new legislation which some media outlets labelled the "Ghomeshi amendments" or "Ghomeshi rules." These added new procedures for defence disclosure of private records in sexual offences trials.

Furthermore, the Supreme Court declared earlier this year that the new disclosure procedures were constitutional in their entirety (R. v. J.J., 2022 SCC 28).

I have my doubts that the portion of the trial case you quote (para. 78) amounts to "personal information for which there exists a reasonable expectation of privacy," which the Supreme Court sets out the interpretive standard for in paras. 43-50 of their decision, but I would guess that the "ambush" of the other complainant identified as L.R. would have qualified under these new disclosure rules (Ghomeshi trial decision paras. 38-41).

For further summary, see for example media reports in The Globe and Mail and CBC.