J. Q.B. A.D. 1993 No. 3500 J.C. S. IN THE COURT OF QUEEN'S BENCH JUDICIAL CENTRE OF SASKATOON BETWEEN: ROBERT SMITH and HER MAJESTY THE QUEEN B. Morgan for the applicant F.W. Dehm for the respondent FIAT WALKER J. January 17, 1994 THE APPLICATION This is an application by a person charged with two countsof sexual assault involving two complainants 15 and 13 years of agefor a remedy under s. 24(1) of the Canadian Charter of Rights andFreedoms compelling the respondent to provide full disclosure to him. The application is based on ss. 24(1), 7, 11(a) and 11(d) of the Charter and s. 650(3) of the Criminal Code, R.S.C. 1985, c. C-46. The applicant argues that his constitutional rights and his right tomake full answer and defence have been infringed by the refusal ofthe respondent to provide full and complete disclosure without trustconditions and undertakings being imposed thereon. It is importantto note that the applicant contends not for less onerous trustconditions or undertakings, but that disclosure be without trustcondition or undertaking of any sort. The Crown maintains that the trust condition or undertaking required is appropriate in the circumstances of this case. The Crown says the seeking of the trust condition in question is an effort to ensure that sensitive material in the victims' statements and videotapes be not wrongfully used and to ensure the right to privacy of the two complainants. The sole issue for determination by this Court is whetheror not the imposition of trust conditions on the disclosure of thevictims\' statements prevent the accused from exercising his right tomake full answer and defence as guaranteed by ss. 7 and 11 of theCharter. THE MATERIAL The material filed on the application is as follows: (1)The affidavit of the applicant; (2)The affidavit of the Regional Crown Prosecutor of the Saskatoon Prosecution Unit of the Saskatchewan Department of Justice; (3)The affidavit of Crown Prosecutor of the same Unit. The affidavit of the applicant, among other things, states that his counsel is unable to give him copies of certain disclosure material to enable him to review and study it on his own as he wishes and feels it necessary to do. The Prosecutors' affidavits establish that, in the context of sexual assault cases involving children, there is policy reflected in this paragraph of the affidavit of the Regional Crown Prosecutor: That in July of 1993 Murray Brown of the Public Prosecutions Branch in Regina, Saskatchewan indicated that instances had occurred where the videotaped statements of child sexual assault complainants and the written statement of teenage sexual assault victim had come into the possession of persons other than the accused individual or his defence counsel. As result of that situation, the Public Prosecutions Branch adopted policy that disclosure be provided in such way that the material be controlled by the defence lawyer to ensure that copies did not become available for distribution to persons other than those involved in the case. (emphasis added) The affidavits of the prosecutors went on to deal with specific cases in which statements (written and videotaped) had come into possession of persons other than the accused and his counsel. Statements and documents had gotten, for example, into the hands of Member of Parliament, the prosecution office, law firms unconnected with the case, schools and the Saskatoon Police Commission. danger to life had resulted from disclosure material having gotten into the public area. Disclosure material had turned up at schools, arcades and other public places. In short, the prosecutors' affidavits, somewhat and in broad, reflect the situation commented on in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions (The Martin Committee Report), later referred to in this fiat. At p. 180 that Report states: The Committee has heard of appalling instances where disclosure briefs containing highly sensitive material have been made publicly available: for example, the statement of child complainant in an allegation of sexual assault subsequently circulated at the complainant's school. ... Occurrences of this type are, in the Committee's view, flagrant abuses of the right to disclosure. The devastating effect which such conduct can have on the privacy or safety of the victims or witnesses concerned is obvious. The applicant takes no exception to the affidavits filed by the Crown save that they do not establish the degree or extent to which the problem dealt with exists in this jurisdiction. GENERAL R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] S.C.R. 326 (S.C.C.) establishes that the right to disclosure is constitutional right not subject to qualification. Disclosure is right vested in an accused not defence counsel. Disclosure is constitutional right because of its crucial role in making full answer and defence. Aside from the Charter, fair trial requires that accused persons know the case they have to meet. Information regarding the victims' allegations is essential to this and must be disclosed. However, this does not absolve the Crown of responsibility to do all it can properly do to ensure that the privacy interests of complainants are protected. The Crown has an obligation to protect the privacy of alleged victims of sexual assault cases. Victims' statements and videotapes made in the course of criminal investigation often contain sensitive personal information that the alleged victims would not, in normal circumstances, divulge. The making of videotape is an investigative tool to assist in the prosecution and it would not be made but for that prosecution. Inaddition to the privacy interests of the complainant, the publicinterest is also served by providing complainants with assurancesthat the statements and videotapes will not be reproduced anddistributed. This assurance of privacy encourages victims to come forward with their complaints. There can be, in proper circumstances, trust conditions imposed on defence counsel. Defence counsel are officers of the court. Defence counsel have, of course, no obligation to assist the prosecutor. As officers of the court, however, they hold positions of high respect and importance and, correspondingly, high responsibility and duty. These are opposite sides of the same coin. THE NATURE, EXTENT AND EFFECT OF THE CONDITION The nature, extent and effect of the condition sought to be imposed by the Crown in this case is important. The Crown proposed to make disclosure to counsel for the defence subject to the "trust condition" that "victim statements, written, videotaped or included in police report, (would) not be copied nor be allowed to leave (defence counsel's) office in the possession of anyone other than (defence counsel) or member of (his) firm, except with the written permission of the prosecutor." This is not an extensive or comprehensive condition. It concerns only victim statements. It concerns only copying and custody by counsel of them. It does not, of course, restrict communication to the accused applicant. It does not even, in any event in so many words or directly, restrict communication to third parties, although, as will be seen, it probably has that result in indirect fashion. It does not impose restrictions on other than "victim statements". This nature, extent and effect of the condition will be important in deciding this application. It may be asked how effective the condition proposed by the Crown is to deal with the Crown's concern regarding the protection of privacy of the child complainant, given the limited nature, extent and effect set out above. In Thomsen v. R., infra, the order of Sirois, J., provided that "Counsel for the applicant [should] not be allowed to release any videotape to anyone except in accordance with the terms of [the] order." There is no such restriction here. Any consideration of this problem brings to the fore certain duties of defence counsel as an officer of the court, though not formally imposed by the court. One of those duties, in my view, is not to give disclosure materials to the public. To do so would fall short of acting responsibly as an officer of the court. Defence counsel may, "normally, disseminate materials only to those third parties whose examination or possession of the material is in good faith necessary to prepare and conduct the defence." These duties of defence counsel, when considered with the condition here being considered, meet Crown's reasonable and proper objective of the protection of the privacy of child complainants. R. V. STINCHCOMBE The accused contends that his rights pursuant to ss. 7, 11(a) and 11(d) of the Charter are violated. At issue is whether the trust conditions sought to be imposed are inconsistent with the right to disclosure which flows from the constitutional guarantee of fair trial. The Supreme Court of Canada, in R. v. Stinchcombe, held that disclosure in criminal proceedings is now constitutionally required by s. of the Charter, which guarantees that where the life, liberty or security of the person is at stake, he or she will not be deprived thereof except in accordance with "the principles of fundamental justice". Does Stinchcombe go further as contended by the applicant? While disclosure is now constitutional right, it is not disclosure as such that is guaranteed, but disclosure as part of or the means of securing the fairness of the trial and the right of the accused to make full answer and defence. The obligation to disclose is not absolute. My concern in this application is, therefore, whether the trust condition affects the right of the applicant to make full answer and defence. Some means of disclosure may be preferred by the accused over others, but, if there is no adverse effect on the fairness of the trial, the manner of disclosure is not Charter violation. Crown counsel has certain discretion, reviewable at the request of defence counsel. Instances are set out in Stinchcombe. Stinchcombe dealt in general principles and stated that it was not possible or appropriate to lay down precise rules. It is to be noted that there is no refusal by the Crown to disclose in this case. The Crown is willing to disclose the material in the packet. It says it has no other material to disclose than was in the packet forwarded to counsel for the applicant. Counsel for the applicant has refused to accept disclosure on the terms or trust conditions put forward by the Crown. There is no doubt of the paramountcy of the right to fair trial, but there are competing values of stake in disclosure. These values include public safety,the privacy interests of victims or witnesses and the need tomaintain the integrity of the administration of criminal justice. These important values must be accommodated to the greatest extent possible. THE MARTIN COMMITTEE REPORT significant examination of the competing interests at stake in disclosure is contained in the Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions(The Martin Committee Report), which was submitted to the Attorney General of Ontario this year. The Committee was struck in June 1991, to study the early stages of the criminal process, namely, charge screening, disclosure and resolution or plea discussions. chapter of the Report dealt extensively with the subject of disclosure. want to acknowledge full use of that Report and some of its terminology and say that the reasoning in it has aided me and given me comfort in the result at which have arrived. Two of the Committee's recommendations had to do with the improper dissemination of disclosure materials: 34. The Committee is of the opinion that it is inappropriate for any counsel to give disclosure materials to the public. Counsel would not be acting responsibly as an officer of the court if he or she did so. 35. The Committee is of the opinion that defence counsel should maintain custody or control over disclosure materials, so that copies of such materials are not improperly disseminated. Special arrangements may be made between defence and Crown counsel, with respect to maintaining control over disclosure materials where an accused is in custody, and the volume of material disclosed makes it impractical for defence counsel to be present while the material is reviewed. The Committee suggests that the two recommendations "responsibly reconcile the need to provide full disclosure with the need to prevent misuse of disclosure material". It also referred to the obligation on defence counsel recognized by the Supreme Court in Stinchcombe, to act responsibly with respect to disclosure. agree with the two recommendations and that they do effect the important reconciliation. The Committee gives special place to investigators or experts retained by the defence. Again, agree. The Committee specifically contemplated the giving of an undertaking by defence counsel. Again, agree. The trust conditions attached to disclosure by the Crown in this case are reasonable and strike balance between the right to disclosure and the rights of alleged victims, it being recognized that the right to fair trial is paramount. THE NEWFOUNDLAND CASES The applicant refers to several cases from the courts of Newfoundland as follows: R. v. Vokey (1992), 1992 CanLII 7089 (NL CA), 10 C.R.R. (2d) 360 (Nfld. S.C., Appeal Division). R. v. Fleming (1992), 1992 CanLII 7251 (NL SC), C.R.R. (2d) 130 (Nfld. S.C., Trial Division). R. v. Petten (1993), 1993 CanLII 7763 (NL CA), 21 C.R. (4th) 81 (Nfld. S.C., Appeal Division). R. v. Mercer (1992), 1992 CanLII 7230 (NL SC), 105 Nfld. and P.E.I.R. (Nfld. S.C., Trial Division). They, with respect, provide no precise principle that applies in this case. In Vokey, important information was not disclosed in timely fashion, although it was provided prior to trial. The Court of Appeal ordered the trial to go ahead, but emphasized the importance of disclosure. Goodridge C.J.N., at p. 370, made the following obiter comments regarding the manner of disclosure: The Supreme Court in Stinchcombe did not deal with the question of how disclosure is to be made. The manner of disclosure must, for now, be regarded as one of reviewable discretion on the part of Crown counsel. It ought generally to be accomplished by the delivery of photostatic copies of the materials required to be disclosed. There will be circumstances where the provision of photostatic copies is not desirable. In such cases, the material should be displayed to defence counsel in place and under circumstances where meaningful examination of the displayed material may be made. Detailed notes should be permitted. verbatim reproduction by hand of documents would generally not be permitted where Crown counsel, in the exercise of his or her reviewable discretion, considers that photostatic copies of those documents should not be provided. In most cases, no distinction is to be made between photostatic copy and handwritten verbatim reproduction. The Court of Appeal contemplated some flexibility with respect to the manner in which disclosure is provided. In Fleming, the court considered the policy of the Crown that required defence counsel to review all relevant material at police headquarters. Thousands of documents were involved. The Crown permitted the review of the relevant materials but refused to provide copies. On the s. issue, the Court concluded: The material collected by the Crown in this application is massive. There are thousands of documents, reports, statements and other material which must be made available to the accused. The review of the relevant material, in this case, would be impossible because the accused is incarcerated in the special handling unit of Her Majesty's penitentiary. find that the Crown's refusal to provide copies of all relevant information with respect to this application significantly impeded the accused's ability to make "full answer and defence" and thereby violated the accused's rights under s. of the Charter. In Petten, the court considered another policy of the Crown on disclosure. The Crown required, in all cases, an undertaking acknowledging receipt and limiting the distribution of disclosure materials. The accused had been charged with mischief. The court emphasized the importance of disclosure to the fairness of the trial. However, the court specifically held that requiring the undertaking as condition of disclosure was not denial of disclosure. The court, at p. 84, referred to similar case in Newfoundland, R. v. Luff (1992), 1992 CanLII 7113 (NL CA), 11 C.R.R. (2d) 356 (Nfld. C.A.) so: In Luff, the Trial Judge found that the Crown's failure to provide copies of all documents in its file to the defence ran contrary to the principles enunciated by Stinchcombe. This Court found that there had been no failure to disclose because the prosecution's file had been made available for viewing by the defence and, in the circumstances, this was sufficient. Essentially the same thing occurred in the present case. The file was made available for viewing by the defence or, alternatively, copies were offered subject to the undertaking being given by defence counsel. The question of the undertaking will be addressed below, but in any event it is clear that there was no failure to disclose by the Crown. It could not be maintained that the Respondent would not be able to make full answer and defence to the charge, so the stay of proceedings entered by the Trial Judge was not warranted. (Emphasis added). Thus, the Court of Appeal found that placing conditions on disclosure did not constitute failure to disclose and an infringement of s. of the Charter. It is clear, however, that the Court of Appeal disapproved of the Crown's policy of imposing conditions on all disclosure in every case stating at pp. 84-85: Crown counsel has informed the Court that such is no longer required and this is obviously right decision. As already stated, hopefully clearly, the nature and extent of the release of information must be governed by the particular case. This will include any conditions which may be attached to such release. It is obviously as inappropriate for the Crown to impose the same stringent conditions on every release of information in every case as it is for the defence to expect release of all information in every case, without limitation or conditions. Each matter must be dealt with on its own merits. In Petten, the Court of Appeal made specific mention of Mercer. However, the Court of Appeal in Petten did not find Mercer to be inconsistent with their decisions. In considering Mercer, this is significant. Mercer involved charge of possession of weapon dangerous to the public peace. Again, as in Petten, disclosure was provided by the Crown only with the execution by defence counsel of an undertaking and acknowledgement. It was apparently conceded by Crown witness that the undertaking "restricted defence counsel in the preparation of his defence". It is not clear how it did so. The court concluded that the disclosure was improper and contrary to the Charter. Mercer and Petten can be reconciled only if it is assumed that the objection in both cases was to the blanket nature of the policy of requiring an undertaking. For example, Mercer contemplated that there might be cases in which the withholding of photocopies was required at p. so: In my opinion, if the Crown has reason to believe that the provision of photocopies in certain circumstances could unduly affect or impair the administration of justice, then photocopies should be withheld. An accused or his counsel may then apply to Court for review of that decision. Further, there is some indication that the findings in Mercer were limited to the facts of that case at p. 10: On the facts before me am satisfied that photocopies can be safely provided to the defence and to require defence counsel to sign the undertaking requested may impair the ability of the defence to make full answer and defence. On the facts of this application it appears to me that in cases like the one in question the policy of requiring an undertaking and acknowledgement in its present form is unnecessary and should be discontinued. Mercer does not stand for the proposition that disclosure with conditions is per se unconstitutional. The case was concerned, rather, with the fact that the policy of the Crown was applied in every case. The cases together indicate that the Newfoundland courts looked with disfavour upon the blanket policy of the Crown on the providing of undertakings in all cases, regardless of whether there was some sensitive material to be disclosed. If the Mercer and Petten cases are looked upon as not reconcilable Petten, coming from the Court of Appeal, is preferred by me. In any event, now have the guidance and aid of Thomsen v. R., supra, which is, although my information on it is vague, proper to be followed by me. THOMSEN V. R. The applicant contends for disclosure without conditions or undertakings of any sort. Little has been said judicially on this matter in this jurisdiction. However, in Thomsen v. R., on April 12, 1993, Mr. Justice Sirois, on the application of the accused and after hearing the prosecution and the Minister of Social Services for the Province of Saskatchewan, made this order: 1.) With regard to any videotape to be provided by the Respondent through disclosure that: a.) The Applicant shall enter into an undertaking containing the following terms before any videotape is released to him: i.) That he will not make copy of any videotape provided by the Crown of interviews conducted with the complainant in the investigation of the pending charge against him under S. 271 of the Criminal Code; ii.) That he will not watch any videotape provided to him with anyone other than his counsel or any expert witness retained on his behalf with regard to the said charge; iii.) That the videotapes shall be viewed by the applicant at the office of his counsel or at his residence; iv.) That he will return any videotape provided to him after watching it to his counsel. b.) Any videotape provided to counsel for the Applicant shall be returned to the Melfort Detachment of the Royal Canadian Mounted Police at the conclusion of the appeal period after the trial of the said charge or upon decision being given in the Court of Appeal if there is an appeal from the decision at trial on the said charge. c.) The Applicant shall be allowed to release any videotape to expert witnesses retained in the defence of the said charge. d.) Counsel for the Applicant shall not be allowed to release any videotape to anyone except in accordance with the terms of this Order. 2.) The Minister of Social Services for the Province of Saskatchewan is ordered to provide to the Respondent its file or files, including but not limited to the notes of Ms. Linda Bradley, with regard to its investigation of the sexual abuse allegations against the Applicant with regard to his daughters. That order runs counter to the applicant's position that the disclosure in this case ought to be without condition or undertaking of any sort. It is the "applicant" who must enter into the "undertaking", although counsel for the applicant is also restricted by the order. The "undertaking" provides that the applicant will not make copy of any videotape of interviews with the complainant or watch any videotape except with his counsel or an expert witness retained on his behalf. Videotapes are to be viewed at the office of counsel or the accused's residence. Release to expert witnesses is allowed. Finally, counsel is ordered not to release any videotape except in accordance with the order. This order clearly approves of conditions and undertakings in sexual cases. This order is, in nature, extent and effect, not unlike the trust conditions being considered in this application. Jurisprudence in this jurisdiction, limited as it is may be and with little information about that application proper, is clearly against the applicant in his quest for disclosure absolutely without condition or undertaking. This is so whether the problem be looked at matter of law or on the merits of this case on its particular facts or merits. The applicant says that Thompsen was wrongly decided. do not agree. THE APPLICANT'S APPROACH Counsel for the accused referred often to the situation of hypothetical accused not represented by counsel. The case of an unrepresented accused is not before this Court. The Crown is doing what it can to prevent the improper use of sensitive material necessary to the prosecution of serious sexual offence. How the Crown would pursue that purpose in the case of an unrepresented counsel is not relevant here. Each matter must be dealt with on its own merits. The applicant says he needs and has the right to review and study the complainant statements, including written and videotaped statements, on his own and away from the office of counsel. He says he needs and has the right to utilize those statements as such, rather than in substance after having read and seen them as often as might be necessary, in quest for witnesses and ideas for defence, presumably showing them to others, when he, in his own judgment, thinks it useful and proper to do so. He says, as is correct, that there is no evidence indicating that he is the sort of person who might be expected to abuse those rights he says he needs and claims. He, as is correct, says that the Crown has established certain problem with wrongful use of complainant statements generally but not the degree in which it exists in this jurisdiction. In my view, the material filed by the Crown is sufficient to establish considerable problem with wrongful use of disclosed material in this jurisdiction. In any event, the privacy and safety aspects of wrongful use are so important that the degree of abuse shown by the Crown merits great care and preventive measures in this case. Moreover, it is not necessary, as suggested by the applicant, for the Crown to attack the applicant and attempt to mark him as of questionable integrity to allow this care and prevention place in the process of disclosure, if, indeed, such an attack or marking is useful or proper in any event. In result, and in all the circumstance of this application, the claim of the applicant to the right of review and study of the complainant statements, written and videotaped, on his own and away from the office of counsel, and his right to utilize them as claimed, are not essential to provide disclosure and his right to fair trial and to make full answer and defence. The applicant, in all reason, is able to review the statements, written and videotaped, as often as considered necessary by the applicant and his counsel, to know the content, substance and thrust of them. Notes can be taken. Copies can not be made. There is something particularly damaging about having copies of written statements and videotapes somewhat in circulation and out of the control of counsel and available to the reading or view of members of the public, depending on the good judgment of the accused, being one with considerable interest in matters. This decision is part of the "balancing" am required to do between the admittedly paramount right to disclosure and fair trial and right to make full answer and defence, on the one hand, and the right to privacy of the complainants, on the other. have done this balancing solely in the circumstances and on the facts of this application. POLICY The requirement of trust conditions on disclosure by the Crown in this case is not the result of blanket policy applied to all cases. It is the result of policy applied to cases of sexual assault. am not hearing this application to either establish policy or question any policy of the Department of Justice in the area under consideration, whether the area be looked at generally or in the context of sexual cases involving children. am hearing this application, on all its particular facts and circumstances, to decide whether the applicant will have unconditional disclosure or not. Each case is to be decided on its own merits and facts. To the extent that Mercer and other Newfoundland cases dealt with the propriety or continuation of policy, they are, with respect, not useful to me for present purposes. MIDDLE GROUND There was filed by the applicant, at the opening of the hearing of this application, draft order modelled somewhat on the order of Mr. Justice Sirois of this court in Thomsen v. R., supra. It represented the applicant's "fall back" or second position. It was the first intimation had of this new position. The applicant did not abandon his first and basic position that he was entitled to disclosure without trust condition or undertaking of any sort, but realized and accepted that the order of Mr. Justice Sirois in Thomsen v. R., supra, presented considerable problem in arguing and contending for that first and basic position that he was entitled to disclosure without trust condition or undertaking of any sort. Counsel for the applicant went so far as to concede that, in light of Thomsen v. R., supra, his "fall back" or second position was the one he now "liked". Counsel for the applicant did make it clear that the draft order was hastily drafted and was not such as might be utilized as such and without considerable revision and further consideration. Counsel for the Crown, maintained his position that the Crown condition was proper, but conceded that might conceivably consider "middle ground" solution, based somewhat on the draft order, and pointed out, in brief fashion, some of its shortcomings in the Crown's view. He agreed that it could not, in any circumstance, be utilized without considerable revision and further consideration. He wished, in any event and prior to any possible use, in some fashion, amendment to ensure that contempt proceedings might follow in the event of breach. do not wish it thought that have put aside, in offhand fashion, the positions of counsel that it is open to me to reject both of their basic submissions and to go to "middle ground" and make an order of my own for the conditions or undertaking of disclosure. That is not so. note that an adjournment for the purpose of counsel themselves considering the revision of that draft order, so that it might meet the needs of both the Crown and the defence, met with no success. Counsel were not able to make that revision. Nor am able to make that revision, particularly without any real submissions or suggestions from counsel. In any event, the revision of that draft order is neither an aspect of my duty on this application nor useful exercise. had no evidence and no real submission on that matter. had just request to "do something" if rejected the two positions formally put forward. My approach will be to deal with matters as they were formally presented. The applicant said he was entitled to disclosure without trust conditions or undertakings of any sort. The Crown said that application ought to be dismissed. will do one or other of those things, with in consideration along the way of the trust condition sought to be imposed by the Crown. will not embark upon setting up of trust condition or undertaking in court order that counsel were neither able to agree upon nor prepared to address in any detailed way. will, out of respect for able and detailed arguments by counsel, avoid the temptation of saying, in summary fashion and without more, that the applicant is simply not entitled, in the circumstances of this case, to disclosure without trust condition or undertaking as requested. CONCLUSION I find that evidence does not show how disclosure, on thetrust condition in question, would prevent the applicant from makingfull answer and defence to the charges he faces. find that the interest of the public and the complainants in having the statements and videotapes narrowly disseminated is clearly shown. Providing thestatements and videotapes to counsel for the accused on trustcondition that counsel retain them in his possession, serves the dualpurpose of providing detailed disclosure while ensuring that thematerials are not disseminated more widely than is necessary for thefairness of the trial. The right to disclosure and the right to make full answer and defence is not the right to unconditional disclosure. The evidence does not establish that the accused's right to make full answer and defence is impeded by the requirement that his counsel execute an undertaking with respect to the disclosure provided. The conditions apply only to victim's statements, videotapes and references to victim's statements obviously matters of some sensitivity. The Crown is not withholding disclosure. Theinformation contained in those statements and videotapes is availableto the accused and retained experts for use in preparing his defence. The accused will know the substance of the complaints and,therefore, the case he has to meet. In the circumstances of thiscase, there is no danger to the fairness of the trial by virtue ofthe trust condition attached to disclosure. In result, for the foregoing reasons and on the foregoingreasoning, the application is dismissed.
FIAT The accused, who was charged with two counts of sexual assault involving complainants 15 and 13 years of age, applied for a remedy under ss.24(1) of the Charter of Rights compelling the respondent to provide full disclosure to him, without trust conditions or undertakings of any sort. HELD: The imposition of trust conditions on the disclosure of victim's statements and videotaped statements in cases of sexual assault does not prevent the accused from exercising his right to make full answer and defence as guaranteed by ss. 7 and 11 of the Charter. The obligation to disclose is not absolute. The Corwn's obligation to protect the privacy of the complainants is fulfuilled by providing the statements and videotapes to counsel for the accused on trust condition that counsel retain them in his possession. The information contained therein is available to the accused and retained experts for use in preparing his defence. Since the accused knows the sustance of the complaints and, therefore, the case he has to meet, there is no danger to the fairness of the trial by virtue of the trust condition attached to disclosure. The public interest is served and the integrity of the criminal justice system is maintained when complainants are assured that staements and videotapes will not be reproduced. Application dismissed.