Steering Committee on Justice Efficiencies And Access to the Justice SystemFootnote 2 – Report On Disclosure in Criminal CasesFootnote 3
June 2011

I. Introduction

[1] Information is the lifeblood of the criminal justice process. Without it police cannot investigate, prosecutors cannot resolve or litigate files, and judges and juries cannot fairly determine whether the guilt of the accused has been proven. Defence lawyers also require access to information to effectively discharge their responsibilities. But prior to the decision of the Supreme Court of Canada in R. v. StinchcombeFootnote 4, defence access to information gathered by the police was not guaranteed. While the prosecution bar generally co-operated in making disclosure to the defence on a voluntary basis, the extent of disclosure varied from province to province, from court location to court location and even from prosecutor to prosecutor.

[2] Working papers and reports of the Law Reform Commission of Canada; a commission of inquiry and at least one bar committee recommended in the strongest terms that defence disclosure be placed on a more solid foundationFootnote 5. These studies recognized that disclosure to the defence is an essential component of the right to a fair trial. Without disclosure, the accused cannot make full answer and defence. Disclosure is one of the pillars of criminal justice on which we depend to ensure the innocent are not convicted.Footnote 6

[3] Disclosure also leads to greater efficiency in the court process. It often results in waived and shortened preliminary inquiries and in shorter trials. It can also avoid the unnecessary attendance of witnesses and reduce the expense and inconvenience the system imposes on third parties.Footnote 7 Finally, effective disclosure may facilitate resolution discussions, the withdrawal of charges, and, where appropriate, pleas of guilty.Footnote 8

[4] Parliament could have assumed a leadership role in response to demands for expanded disclosure rights. However, as Justice Sopinka noted in Stinchcombe, Canada’s legislators were content to leave the development of the law of disclosure to the courts.Footnote 9 As a result of purposive judicial interpretations of the fair trial right guaranteed by s. 7 of the Charter of Rights and Freedoms (Charter), Canada now has the most expansive disclosure regime of any common law country.Footnote 10

[5] Following recognition of the constitutional status of disclosure, the Martin Report provided Ontario with detailed recommendations on how best to incorporate disclosure into the criminal justice process. A subsequent Ontario report focused on the ways police and prosecution services could improve their delivery of disclosure.Footnote 11 These reports stressed the importance of improving the fairness and efficiency of defence disclosure in Ontario. They were influential in the formulation of disclosure policies and practices across the country.

[6] As courts began to interpret and apply the principles in Stinchcombe, the resulting improvement in disclosure practices was heralded as an example of the Charter enhancing the fairness of Canadian justice. But as the full implications of constitutionally entrenching disclosure become apparent, some of the bloom started to come off the rose. Recent commentaries have focused on financial and efficiency costs entailed in meeting disclosure obligations. They have also identified excessive disclosure as a primary cause of the troubling increase in trial length experienced throughout Canada, especially in pre-trial litigation.Footnote 12

[7] This report first examines the operational challenges disclosure poses for the police, prosecution, defence and judiciary. Measures to address these challenges are then proposed. A major conclusion of the report is that "disclosure problems" are more properly understood as failures on the part of the criminal justice system to effectively utilize modern information management technology and procedures. They are not problems in the law of disclosure per se, but problems in how the law is being interpreted in some instances and, most significantly, in how it is being implemented. Too many of the professional participants in the justice system have, in one way or another, failed to effectively adapt to the increased challenges of constitutionally mandated disclosure.Footnote 13 Fairness and efficiency are not competing values. If the independent professional participants in the criminal justice system fully recognize that they are interdependent and must work cooperatively in the management and disclosure of information, a cultural change will take place that cannot help but enhance the quality of Canadian justice.

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