The Manitoba inquiry into the conviction of James Driskell for the 1990 murder of Perry Harder has been underway since July 18. Mr. Driskell served 13 years in prison before his conviction was quashed in 2005.

Yesterday, Mr. Driskell's trial lawyer told the inquiry that he did not receive disclosure from the Crown that a key prosecution witness had sought to obtain immunity on an arson charge in exchange for his testimony. Documents filed with the inquiry showed that the lawyer had repeatedly asked prosecutors whether any of the Crown witnesses had ulterior reasons for testifying against his client. In February 1991 prosecutors wrote to counsel indicating that police files disclosed no such motive. Yet two months earlier the witness' lawyer had written to the prosecutions office with a list of demands, including that he not be charged with any crimes. This letter was not disclosed to defence counsel, and it now appears that the witness was indeed provided with the sought-after immunity.

This aspect of the Driskell inquiry underlines the great importance of the Crown disclosing to the defence all relevant information in its possession or control. The leading case that establishes the right of a defendant to receive such disclosure is R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.). It remains to be seen exactly why relevant information concerning a possible motive for the witness to lie was not disclosed to the defence in the Driskell case. What is clear, however, is that the Crown had an obligation to do so.

Unfortunately, failure to disclose is a common contributing factor in miscarriages of justice. Several commissions of inquiry, including those examining the wrongful convictions of Donald Marshall, Guy Morin and Thomas Sophonow, have criticized Crown counsel for failing to make full disclosure.

For a recent media report on the Driskell inquiry click here.

For a detailed review of disclosure from police to Crown in the Driskell case, conducted at the request of the Manitoba Attorney General by John Enns, a retired provincial court judge, click here. For another review by Mr. Enns, this one concerning disclosure from the Crown to the defence, click here. Both reviews identify serious flaws in the disclosure process.