MCLNugget: Montesano ONCA

R v Montesano, 2019 ONCA 194 

View fullsize

The Issue

What reference, if any, may be made to a prior discharge of an accused or offender. Put differently, can the Crown rely on a discharge during sentencing submissions and disclose such information to the court.

The Answer

Section 6.1(1)(1)(a) of the Criminal Records Act provides that “no record of a discharge…shall be disclosed to any person, nor shall the existence of the record or the fact of the discharge be disclosed to any person, without the prior approval of the Minister, if (a) more than one year has elapsed since the offender was discharged”: Section 6.1(1)(a) CRA.

This language is plain. This provision prohibits disclosure not only of the record, but also of the existence of fact of a discharge beyond one year [para 9].

The Fine Print

Notwithstanding this absolute prohibition on disclosure, the Crown is “entitled to put before the court the factual reality of the incident – the fact that this was not the first incident – but nothing more” [para 4].