Kingston, Ont.In an Ontario courthouse earlier this year, on the record, in open court, a Crown counsel stated that the accused before the bench was already in possession of the body-worn camera footage that the defence had been demanding for over fifty days. The statement was clear. It was uttered into the courtroom's microphone, with the court reporter present, with the matter being adjourned on the basis of the statement, with the bench accepting the statement as truth. The statement was untrue. The Axon system log, since obtained on the file, shows the footage was, at the moment the Crown spoke, still in the Crown's possession and had not been transmitted to the accused.

The footage was, however, transmitted to the accused, by email, from the Crown's office, seventy-seven minutes after the courtroom statement was made. The accused, who is self-represented, did not need a lawyer to understand the implication. The lawyer the accused does not have would, however, have known the procedural mechanism by which what had just occurred is named, addressed, and disciplined. The mechanism exists. The mechanism is rarely used. This magazine would like to walk through it slowly, because the mechanism is what separates a country with a working Crown's office from a country that merely has one on payroll.

What the statement was

The exact phrase, copied from the in-court audio recording, was that the accused "is in possession of" the footage. The phrase was unqualified. It was not "should have", was not "will be", was not "we believe is now". It was a statement of present fact. The statement, on the documentary record this magazine has been allowed to read, was wrong. The Axon system records the digital chain of custody of body-worn camera footage to the second. The Crown's office had downloaded the footage; the Crown's office had not yet sent it; the Crown's office's representative said, on the record, that the accused had it.

This is the kind of moment that, in better-functioning legal systems, the bench would, on its own motion, halt the proceeding and put on the record. The bench did not do that in this instance, because the bench had no reason at the moment to disbelieve the Crown. That is the modal expectation of a courtroom. The Crown is, by structural design, the actor whose word a bench takes at face value. The reason that arrangement works, when it works, is that the Crown is the actor whose word is most carefully chosen.

What followed

The defence, on receipt of the footage, wrote to the Crown to ask, in straightforward terms, how the Crown's earlier statement could be reconciled with the seventy-seven-minute gap. The Crown's reply, on letterhead, was a denial. The Crown maintained that the statement, in its full context, had not meant what the recording demonstrated it meant. The Crown then proposed, in the same letter, that the matter could be "addressed efficiently" if the self-represented accused would attend a brief case-management appearance at which the Crown could put a clarifying remark on the record.

What the Crown proposed, in plain English, was that the accused travel back to the courthouse, on the accused's own time, on the accused's own dime, without counsel, so that the Crown could put a correction onto the public file. The correction would, by the Crown's framing, be a clarification. The accused, by accepting the framing, would be a party to characterising as a clarification what was, by the documentary record, a misstatement. The accused, who is self-represented, said no.

The Crown asked the citizen to return, on the citizen's own time, to characterise as a clarification what the record shows was a misstatement.

What this is, named

There is a vocabulary for what occurred. The vocabulary is in the case law. The Supreme Court, in R. v. Cawthorne, has been explicit that the Crown's duty of candour to the court is, in the country's adversarial system, a structural condition for the system's legitimacy. The British Columbia Court of Appeal, in a more recent decision the citizen's defence file now relies on, has reiterated that an inaccurate statement of fact by the Crown, particularly one on which the bench relies, is not a private courtesy issue between counsel. It is a matter that engages the Law Society of Ontario's rules of professional conduct, the Crown Attorney's Office's own internal review process, and, in extreme cases, the bench's inherent jurisdiction over its own proceedings.

None of these mechanisms is automatic. All of them require the wronged party, here, a self-represented citizen who has had to learn the procedure from a printed binder borrowed from a friend who borrowed it from a paralegal, to file the appropriate complaint or motion, in the appropriate form, within the appropriate window, with the appropriate exhibits. The barrier to invoking the mechanism is, in any honest reading of the country's professional regulatory landscape, the central reason the mechanism is rarely invoked. The Crown's office, on the documentary record this file has produced, is aware of the barrier. The Crown's office is, on the same record, comfortable behind it.

The request to come back

The request that the accused return to the courthouse is, this magazine has come to believe, the small detail in this story that does the most to reveal what is actually happening. The misstatement was inadvertent or it was deliberate; the file cannot, at this moment, prove which. What the file can prove is that the Crown, on becoming aware that the misstatement had been documented externally, sought a procedural pathway to dilute the record before any motion could be brought. The procedural pathway required the accused's participation. The accused declined to participate. The file, as a result, will be made in open court, on a motion the accused will file in writing, with exhibits, on a date the accused is currently preparing for.

What a country owes itself

A country whose Crown counsel can make a false statement on the record and, when challenged, request that the misstatement be quietly corrected in a way that disadvantages no part of the prosecution's case, is a country whose Crown's office has, at some point in the years before the file in question was opened, stopped policing its own. The policing is the office's responsibility. The country has, in the absence of the policing, the secondary recourse of the Law Society. The Law Society has, in this magazine's collected reading of recent decisions, been increasingly receptive to complaints of this kind. A complaint will, in due course, be filed. The Law Society will, in due course, respond. The accused, in the meantime, will continue to prepare a motion that is, on every document in the binder, well founded.

The Crown will, eventually, be asked, under oath, what was meant by the phrase "is in possession of." The country will, eventually, be told the answer. The country has not, in this magazine's view, been told yet.