Dalhousie Journal of Legal Studies


Human rights commissions were first introduced in this country as an alternative mechanism to address complaints of discrimination. From the outset, human rights proceedings were designed to operate differently than criminal proceedings. While criminal courts assess the guilt or innocence of an accused using the reasonable doubt standard of proof, boards of inquiry assess evidence according to the balance of probabilities. Moreover, the boards of inquiry are mandated to compensate the victims of discrimination, and not necessarily to punish the discriminators. Despite these differences, boards of inquiry and courts alike have started, in recent years, to compare criminal and human rights proceedings and to hold human rights commissions to the same standards of conduct as criminal prosecutors. This has been especially evident with respect to the subject of disclosure. More specifically, the issue of disclosure in the context of human rights proceedings has been dramatically affected by the Supreme Court of Canada's decision in R. v. Stinchcombe. In Stinchcombe, the Supreme Court ruled that the prosecution in criminal trials has a duty to make full disclosure to the defence prior to trial. Despite the fact that this case dealt specifically with the duty of disclosure in criminal cases dealing with indictable offenses, some courts and tribunals have applied the Stinchcombe standard to human rights proceedings. This comment will examine the issue of disclosure in the human rights context by examining the approach to disclosure that existed prior to the Stinchcombe decision and then proceeding to analyze cases that have either applied or rejected the Stinchcombe approach in the context of human rights proceedings.

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Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License
This work is licensed under a Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License.