I have to write a Legal Memo in ILAC form for common-law case named "R v Van Der Preet, 1996". ILAC refers to Law/Principle; Application or Arguments; and. Conclusion. The paper should be of 10 pages

Facts

During a preliminary hearing, a witness provided the Crown with evidence that was favourable to the accused. The Crown elected not to call the witness, and refused to provide the statements obtained at the interview. The judge in that case rejected an application for disclosure, as the Crown was not obligated to do so.

Issues

• Is the Crown obligated to make disclosure to the defence?

Decision

The appeal was allowed, and a new trial was ordered.

Analysis

SOPINKA J. (La Forest, L’Heureux-Dubé, Gonthier, Cory, McLachlin, and Iacobucci JJ. concurring)

The majority claimed that, while there are no compelling arguments to suggest that the Crown does not have a duty to disclose, there are an overwhelming number of arguments to suggest that they do have this duty. The reciprocity of this duty was considered, but a lack of reciprocity was not understood to absolve the Crown from its duty. The definition of the role of the prosecution found in Boucher v. The Queen was cited, wherein the "duty to see that all available legal proof of the facts is presented" [252] was mentioned, to which it was added that the evidence held by the Crown was not the property of the crown, to be used in securing a conviction; rather, this evidence was the property of the public, to be used to ensure that justice is done.

An argument suggesting that a duty to disclose would add an onerous amount of work to the Crown was rejected, citing the time and effort lost on appeals such as this one as a way in which a unified habit of disclosure would save time. The majority held that there was no practical reason to oppose broad disclosure, while several practical reasons existed to uphold it, including the ability of defence to make full answer and defence.

The majority held that the duty to disclose was not absolute, and must remain at the discretion of the Crown to exclude highly sensitive or irrelevant information. With that said, it was still established that the Crown ought to err on the side of inclusion, and that the mere fact that information would not be entered into evidence was not, on its own, sufficient ground to exclude it. The same was said for statements taken from witnesses that the Crown did not intend to examine in court.

Ratio decidendi

• Subject to its discretion, the Crown is duty-bound to disclose relevant information, including information that may be favourable to the defence.

• The Crown ought to err on the side of disclosure in most cases.

Facts

The accused was charged with manslaughter by the unlawful act of assault. He was acquitted based on the fact that the assault had been consented to, and on the fact that the CCC provision (265) only prohibited assaults that were not consented to. The Crown appealed successfully, with the CA holding that public policy reasons precluded this sort of consensual assault. This was further appealed to the SCC.

Issues

• Was the accused guilty of an assault, per s. 265(1)(a)?

Decision

Appeal dismissed

Analysis

Majority

It was found that the trial judge had ruled that, as 265(2) applied to all forms of assault, an absence of consent could serve as a defence to the accused in this case. While it was also found that s. 9 of the CCC had confined the list of offences known to Canadian law to those defined in the CCC, it held that it was within the power of the court to use the interpretive tools afforded to the courts by the common law offences.

In this case, the majority found that s. 265 required the introduction of a principle, found at the common law with respect to offences, that would vitiate consent between adults when applying force that would cause serious or non-trivial bodily harm; in other words, one cannot consent to a serious fist fight, as one's consent to this fist fight would be vitiated by one's involvement. The court made an exception, however, for activities such as boxing, where the application of force was kept within the limits of customary rules and norms.

Ratio decidendi

• Consent is vitiated when adults intentionally apply force to one another causing serious or non-trivial bodily harm.

  • This principle must be used in interpreting s. 265 CCC

  • Consent will not be vitiated in the case of rough sporting games, where customary rules and norms exist and are followed, and where the activity in question has significant societal benefit.