Steering Committee on Justice Efficiencies and Access to the Justice System – Report on Disclosure in Criminal Cases
June 2011

II. Disclosure Challenges

[8] Adjusting to constitutionally mandated disclosure obligations has posed major logistical, interpretive and procedural difficulties for all the professional participants in the criminal justice process. Effectively and efficiently gathering, managing, digesting and disclosing large quantities of information is an onerous task for the police and prosecution. Receiving, managing and digesting large quantities of information is also an onerous task for defence counsel and judges. Resources committed to disclosure activities cannot be deployed elsewhere to address other pressing needs. Disclosure disagreements between the prosecution and defence frequently arise. The absence of statutory procedure to obtain early judicial resolution of disclosure disputes is particularly problematic. Failure to meet the demands of full disclosure leads to delayed and stayed trials. Irrespective of who is to "blame", public confidence in the administration of justice suffers when serious cases, or a spate of less serious ones, are not determined on their merits.

A. Police Challenges

[9] In Stinchcombe and more recently in R. v. McNeil,Footnote 14 the Supreme Court of Canada stressed the critical role played by the police in the disclosure process. Shouldering this role has had immense consequences for the police.Footnote 15 To avoid unacceptable outcomes, the police have been required to commit scarce human resources to disclosure. They have also been required to acquire and develop new and expensive information technology to cope with the sheer size and complexity of the information gathered by modern investigations. The other professional participants in the system have not always kept pace with the police when it comes to information technology. Another problem encountered by the police in some jurisdictions is an inability to obtain consistent advice from prosecutors. As a result, too little gets disclosed or over disclosure takes place. Police disclosure responsibilities are further complicated by the high degree of sensitivity attached to certain relevant information, including privacy concerns and the need to protect victims, witnesses and informants.

[10] The challenges identified by the police community can be divided into three broad categories: the cost of disclosure, the disclosure process, and disclosure misconduct.

i) The Cost of DisclosureFootnote 16

[11] The human resource, material and financial cost to the police of discharging their disclosure obligations are demonstrated by individual cases and by reviewing annual expenditures. The cost of disclosure in so-called "mega cases" can be staggering. We were told of a project where the first wave of disclosure alone amounted to 1.4 terabytes of information (3,172,311 different files in different formats). Making disclosure required the purchase of 200 external hard drives of 2 terabytes capacity and 1500 Blue-ray discs at a cost of more than $197,000.

[12] The R. v. Pickton "mega" case in British Columbia started with a single file coordinator assigned to disclosure. Almost immediately the team commander recognized this would not suffice. Continuous review of the staffing situation became necessary. Within five months, 15 officers were dedicated to disclosure. Approximately 20% of the police budget in the case was allocated to disclosing 1,300,000 pages to the defence on CD/DVD or portable hard drives.

[13] Disclosure requirements associated with less serious cases also drain police resources. A police service we consulted estimated approximately four hours per week of investigator time is spent on disclosure preparation and following-up disclosure requests. Much of this time is spent copying discs, victim impact statements, witness statements, medical reports and other documents. This is necessary work but more efficient ways to do it must be found.

[14] The 2010 Calgary Police Service disclosure budget exceeded $2,000,000. This did not include:

  1. Transcripts for all internal affairs and related criminal investigations;
  2. Producing Crown briefs, photographs, audio and video media, paper and printing, computer hard drives/jump drives etc.;
  3. Producing the second and all subsequent copies of disclosure materials required for the defence/court, including but not limited to photographs, audio and video media, paper and printing, computer hard drives/jump drives, etc.; and;
  4. The CPIC Unit and Criminal History Unit, for the preparation of disclosure copies of criminal history material.

[15] The police spend large amounts of time and money transcribing accused or witness statements. In some cases, a video record may only need to be duplicated and provided in the same form (e.g. a DVD recording). But in other cases, the video record will need to be transcribed. The need for a written transcript is virtually automatic for statements of an accused and transcription is often sought by counsel or the court for other types of records, notably lengthy interviews. A transcript can be reviewed far more quickly than an audio/visual recording. Once a trial date has been set, the prosecution (often in response to judicial requests) frequently asks the police to provide transcripts of 911 tapes and KGB interviews. Most domestic violence cases have a 911 or KGB tape requiring transcription.

[16] Transcripts need to be carefully reviewed for accuracy and completeness. This is a labor-intensive and therefore costly exercise. Effective editing requires knowledge of the context of the recorded event. This means the interviewer or investigator must listen to the audio portion of the record while reading the draft transcript and making the necessary corrections or gap fill-ins.

[17] Despite the burden transcription places on police resources, there is a lack of consistent practice in prosecution offices as to whether support staff, individual "line prosecutors" or supervisors are responsible for reviewing files and deciding what needs to be transcribed. This can result in requests an experienced prosecutor would not make. It can also result in inconsistent levels of service by the police (e.g. quality, timeliness, etc.) if the demands made by prosecutors are unrealistic. A prosecution request for transcription can be very expensive. Some police services and/or their funding bodies question why police should pay for transcribing material to be used during the judicial process. In some jurisdictions the police bill the prosecution for transcription costs and argue it would be more efficient to have the prosecution service directly coordinating transcription. On the other hand, prosecution services argue they cannot be expected to take on open-ended costs generated from police activity.

[18] If private sector transcription services are retained, transcripts generally cost about $5.50 per page and $9.50 per page if ordered on an expedited basis. Where translation is required, costs go up to approximately $10.00 per hour and 15 cents per word. There is also the possibility of significant delay (two to three months) when the private sector is used. In many cases the private sector cannot be used because of the need to preserve confidentiality.

[19] Advances in information technology are constantly increasing police disclosure costs. The evolution of disclosure methods has gone from paper copies to cassette tapes, to VHS tapes, to CD/DVDs, and, recently, to Web disclosure. The current preferred method provides disclosure on a computer hard drive. Electronic disclosure requires large capacity servers; commercial scanning equipment; software with indexation; search engines; reports; data import and export; personnel for scanning; keyboard data and system management. The costs associated with cases involving multiple accused and voluminous disclosure briefs can be enormous. Disclosure briefs of 500 gigabytes to 1 terabyte in size are not unusual.Footnote 17 Photo books contribute to a professional presentation in court but they are costly.

[20] The amount of data gathered during an Internet intercept can be massive and almost unmanageable from a human resources point of view. Millions of data packets must be individually viewed, processed and identified as relevant or non-relevant. Disclosure by Voice over Internet ProtocolFootnote 18 is another process which voraciously consumes human resources. Calls cannot be processed in real time and must be manually merged and processed by monitors.

ii) The Disclosure Process

[21] The challenges confronted by the police during the disclosure process can be categorized as technical, security related and legal. Most large police services have made a commitment to modern information technology. But we were told in some locations that remote server data access lines between detachments need to be improved.

[22] The vetting of large electronic files is extremely time-consuming. The personal information of credit card holders and credit card numbers has to be vetted. The privacy interests of innocent third parties relating to non-relevant material (e.g. intercepted by audio and video recording "bugs" and probes) need to be protected. Sensitive material can be in more than one document and unless careful vetting takes place, it is disclosed. It is not uncommon for sensitive information to be included in a police narrative report. This information will only be detected and held back if the individual reviewing the material prior to disclosure has knowledge of the entire incident.

[23] Protocols and staff available to perform the important task of vetting disclosure are frequently not available. Moreover, there is a shortage of experienced file coordinators. The police community acknowledges the need for more police employees to learn how to organize material gathered during a large investigation in a way that facilitates disclosure.

[24] Of understandable concern to the police is the security of undercover operatives, informants and agents. Undercover operatives often travel to work and the name of the police service employing them should always be edited from disclosure. Police, prosecutors, defence counsel and judges do not always agree over the need to distort facial images or to refrain from disclosing ongoing police projects. In the digital age, disclosure of undercover officers through surveillance video poses a serious safety concern. Police are not always convinced the identity of undercover officers is necessary for the accused to make full answer and defence.

[25] The use of aerial surveillance by police has become common practice and common knowledge in criminal circles. Criminal organizations are interested in the types of equipment used as well as details regarding flights (e.g. elevations and directions of travel). So far, these details have been protected from disclosure as investigative techniques. The police are concerned this may change in the future.

[26] A systemic impediment to disclosure in some police computer branches is a lack of capacity to keep up with the volume of requests for forensic examinations of computer hard drives and cell phones. There are cases that take several years to make it through the court system and backlog is common. Furthermore, the software used for examinations in 2005 has changed over time and the prosecution is now requesting further work to meet today's standards. The volume of requests for further work makes it extremely difficult to complete disclosure in a timely manner. It is not uncommon for some cases to remain in the queue to be examined for over a year.

[27] A number of police services report inadequate infrastructure to process large audio (e.g. all audio intercepts in a wiretap investigation) and video files (e.g. cameras that record "24/7"). Experienced officers indicate there is a significant increase in the number of audio and video files submitted. They sometimes ask: does all this material have to be disclosed? Another source of ongoing frustration for the police is the lack of standards on how and when e-disclosure will be utilized. They also suggest there should be PDF standards implemented for best file size/resolution and viewing.

[28] The changing of technology platforms or formats for large media/data disclosure (e.g. telephone, internet, video) is expensive because electronic disclosure of large files is a greater challenge than a standard file. It is easy to scan a small file into PDF documents, whereas a large one requires an indexation structure, search engines and multimedia integration. The adoption of more sophisticated technology (e.g., Adobe 8) may address some of the problems (e.g. too faint photocopying/scanning or illegible/missing officer’s notes). However, as the migration from Supertext to Adobe demonstrated, technology updates can give rise to additional costs and delay.

[29] The police welcome disclosure advice from prosecutors. But prosecutor availability for advisory purposes varies across the country. In some jurisdictions prosecution advice is difficult to obtain in a consistent or timely fashion, even for large investigations. There can also be a lack of consistency in prosecution advice about disclosure responsibilities and formats. Some prosecutors insist on a disclosure format tailored to meet the historical preferences of their office, or even their individual tastes.

[30] Vetting can be a bone of contention between police and prosecutors. The unavailability or unwillingness of prosecutors to participate in the vetting process can result in cases where the prosecution relies entirely on file vetting performed by the police. This can lead to unintended disclosure of sensitive information, delay and misunderstandings. Sometimes it is necessary for the police to postpone operations in order to allow the prosecution to study the file. Police are then obliged to make supplementary investigations to ensure the grounds to obtain warrants are contemporaneous.

[31] The police note that the use of different prosecutors to vet and review disclosure and to prosecute a case can be problematic. This is often the case if the prosecution’s theory changes between the two steps in the process. Depending on the Crown reviewing the file, requests for additional material can vary. For example, it was indicated that requests for additional material can vary significantly between provincial and federal prosecutors. This creates challenges for police services in developing standard policy and procedure for brief preparation.

[32] Some police services report an inordinate amount of time is spent responding to prosecution requests for police notes where no notes exist. On the other hand, some prosecution services report they spend substantial time following up with the police notes not provided to the prosecution. Even worse, cases have been stopped in their tracks where a police witness refreshed his memory from notes never provided to the prosecution, despite memos asking the lead investigator to ensure all officers involved in the file submitted their notes. It was suggested to us that it would help if Crown briefs explicitly stated a named officer did not take notes where it would ordinarily be expected that some notes would have been taken by the officer.

[33] A common problem identified by the police arises when the prosecution does not know what has been disclosed. A related problem arises when defence counsel changes and difficulties are encountered in keeping track of disclosure. In some court locations there appears to be no standard practice of the old counsel returning the file to the prosecution so it can be passed on to the new counsel. On occasion the police are asked to prepare a whole new disclosure package. Similarly, the police receive last minute requests for disclosure briefs or for disclosure of documents/photos already submitted but somehow lost. The result is wasted cost and manpower. Multiple charges in different files for the same incident and same accused can cause an unnecessary multiplication of disclosure. We are advised by the police that this occurred 400 times in one jurisdiction alone in 2008.

[34] Some police officers are skeptical about the purpose of unfocussed disclosure requests. Demands for: "all information and police records pertaining to…" can place an enormous strain on the police. They are a source of frustration when the reason for the request is not stated, understood or accepted.Footnote 19 This sense of frustration can be compounded when police conclude the prosecutor has forwarded the request for action without evaluating whether or not it has merit.

[35] The police find particularly frustrating the attitude some counsel have towards disclosure. These counsel will not come to the police station or prosecution office to pick it up. The police are required to deliver the disclosure. It is also not uncommon for disclosure receipts to go missing, followed by an assertion that disclosure was not made. On occasion, the police receive disclosure back following a guilty plea and it appears to the police that counsel did not bother to look at the disclosure. Police criticism of counsel carelessness is not directed solely at defence counsel. In 2008 a police service had to rebuild 50 files lost by a single prosecution office.

iii) Misuse of Disclosure

[36] The police community has major concerns about the misuse of disclosure by criminal organizations. Misuse of disclosure includes using it to facilitate criminal activity, such as harassment and intimidation of witnesses. It also includes revealing sensitive private information about individuals, including victims of crime and third parties, to parties not entitled to the information.

B. Prosecution ChallengesFootnote 20

[37] Most Attorneys General across Canada issued disclosure directives to their prosecutorial agents following the release of Stinchcombe and the Martin Report.Footnote 21 Over time these directives have evolved to reflect new developments in the law. They have also given rise to a number of agreements between police and prosecution services concerning the content of the prosecution brief. Despite the commonplace use of prosecution briefs, in many provinces there is not one consistent intra-provincial product.Footnote 22

[38] All professional participants in the criminal justice system recognize the benefit of standardized Crown briefs. They include:

  1. An increase in the quality of the brief through police usage of standardized forms on a case specific basis;
  2. An increase in the speed of delivery to the prosecutor because of ease of creation;
  3. A decrease in the amount of "drip-feed" (i.e. incremental disclosure); and
  4. An increase in efficiency because of standardized procedures in redacting and delivery.

[39] The federal government has reaped these benefits through the creation and implementation of its "Report to Crown Counsel"; a standard brief used in all major R.C.M.P. cases. Common brief deficiencies cited by prosecutors who do not work with a standardized brief include:

  1. Redundant information (e.g. witness statements repeated in the narrative of the brief, which should be a synopsis and not a compendium);Footnote 23
  2. The lack of an index; and
  3. 3. Briefs provided in a variety of media (paper, email and video, including VHS, CD-Rom and DVDs formats).

[40] Prosecutors accept they have the ultimate responsibility over what information is disclosed to the defence. This requires a final "vetting" of disclosure to ensure it does not contain information to which the defence is not entitled (e.g. the identity of confidential informants). Virtually everything gathered, received or created in the course of an investigation might be relevant but much of it is not. This makes it desirable from the perspective of prosecutors to be in a position to provide full disclose without investing an excessive amount of review time in vetting and sorting through every aspect of the police investigation with the same level of scrutiny and attention to detail initially invested by the police. Categorization by the police of all disclosure material as it is collected and entered in the database can serve to achieve more focused and efficient Crown vetting. A prosecution brief that is more "user-friendly" from the perspective of the prosecutor will also assist defence counsel’s file preparation after the brief has been disclosed.

[41] An integrated chronology is the backbone of every investigation. Prosecutors and defence counsel indicate they like to receive a brief containing all necessary evidence, facts, statements establishing the offence(s) and the likelihood of conviction, along with the aggravating and mitigating circumstances for sentencing purposes. A detailed synopsis should be included telling the “story” of the case based on the integrated chronology. It should be presented in a narrative format and provide reference sources for all necessary evidence. This is where linking items within the database can be put to best use. In order to build the integrated chronology, each piece of evidence should be coded with the appropriate date, time and witness or other source. Standard coding fields are another useful feature.

[42] To help ensure counsel get what they require to do their job effectively and efficiently, standards need to be developed to define:

  1. What information is required;
  2. What information is of marginal, conditional or no relevance;
  3. What type of reports and inventories of material should be included;
  4. How these reports and inventories should be organized;
  5. What constitutes sensitive data;
  6. How sensitive data should be protected; and
  7. Who is responsible?

[43] It is apparent some of the information technology used by police services was not designed with prosecutors in mind. For example, The Tasks and Task Actions E&RIII databaseFootnote 24 describes the course of an investigation but not the evidence required for prosecution. Consequently, a task report is generally not a suitable summary or detailed narrative for the prosecutor because it is not organized to provide a clear description or narrative of the case.Footnote 25 In other words, a task report does not have the proper focus for prosecution (or defence) purposes.

[44] In the Pickton case there were approximately 13,000 task reports. Some of them consisted of hundreds of pages. The prosecution decided the safest course was to provide copies of all the task reports to the defence. As a result, they all had to be edited by the police and reviewed by the prosecution before they were disclosed.

[45] Some police services do not provide transcripts as part of disclosure. Consequently, prosecutors are required to rely on annotations, particularly in bail court. Some annotations are thorough and provide sufficient information, but others do not. If the annotation is not adequate, the prosecutor may be required to watch hours of video. Alternatively, the prosecutor may not be in a position to provide the Court with all relevant evidence. This can lead to the accused being released on bail when he or she might not have been released had the prosecution been able to put the full picture before the Court.

[46] Police note-taking practices can add to disclosure problems for the prosecution. Increased reliance on video recording of statements can adversely affect the interviewing skills of investigators. Some experienced prosecutors feel investigators were better at focusing interviews when they personally recorded them. Meandering, unstructured and unnecessarily lengthy interviews are problematic for a number of reasons. They give rise to a need for second and subsequent interviews to clarify the statement. Poor statement-taking can also adversely and unfairly affect the value of the evidence of a witness.

C. Defence Challenges

[47] Defence counsel are situated downstream in the disclosure process. Errors made prior to the defence receiving disclosure can poison the water. If the police have not fully identified the fruits of the investigation, proper disclosure will not be made. Failure on the part of the police to provide the prosecution or the prosecution to disclose to the defence information that ought to be disclosed will also lead to a defective disclosure process.

[48] Disclosure to the defence that has not been organized or arranged (so called "dump truck" disclosure) forces the defence to spend time sorting and sifting through the material before the onerous task of absorbing it can begin. Early, well-organized and focused disclosure facilitates the defence forming an early position on admissions of fact which shorten the trial process and permit the prosecution and defence to more accurately plan their cases.

[49] Some defence counsel feel police and governments do not accord sufficient priority to disclosure. They suggest delays in receiving disclosure are a chronic problem in urban courts. They also point to "inadequate responses" by government to commissions of inquiry and academic literature describing prosecutorial "tunnel vision" and "noble cause corruption". These counsel argue senior police and prosecution officials have to advocate more strenuously for increased disclosure resources. They also feel senior officials should play a stronger leadership role in conveying the importance of disclosure throughout their organizations.

[50] Another concern voiced by defence counsel is the lack of care and file organization they encounter in some prosecution offices. Essential items upon which a case may turn (e.g. a DVD interview) are sometimes produced too slowly. Improper cataloguing and vetting can lead to innocent non-disclosure. Too often the defence receives large electronic databases lacking structured search capability.Footnote 26 The lack of standardized checklists and disclosure briefs in cases of all sizes is inefficient and wastes counsel’s time.

[51] We were told that in some prosecution offices no one is responsible for supervising disclosure and important disclosure functions are left to administrative clerks instead of legally trained staff. Accurate records of what has been disclosed are not always kept. There is also a feeling amongst the defence bar that when police and prosecution budgets are reduced, disclosure capacity suffers.

[52] Defence counsel also expressed frustration with judges who they feel fail to take nondisclosure or slow disclosure seriously. Too frequently, the judicial response to a failure by the prosecution to meet its disclosure obligations is an adjournment. When the prosecution is forced to proceed, some judges shift the onus and require the defence to establish prejudice. There appears to be an overwhelming consensus on the part of the defence bar that judges in addition to the trial judge must be given authority to grant Charter remedies relating to disclosure.

D. Procedural Challenges

[53] The need for increased judicial scrutiny of the prosecution’s performance of its disclosure obligations has become a burden on the courts. This burden is amplified by the absence of a statutory structure in which to adjudicate disclosure issues. Writing in an extra judicial capacity, Justice Michael Moldaver of the Ontario Court of Appeal forcefully expressed the practical problems Canada’s judiciary faces because of Parliament’s failure to provide "a code of procedure designed to deal with such basic issues as how, when, why, by who and to whom Charter applications are to be brought".Footnote 27 This omission means there is no procedural mechanism available for the parties to obtain an early judicial resolution of disclosure disputes. This was identified as a major weakness in the criminal justice system at the January 2010 Second National Criminal Justice Symposium in Montreal.Footnote 28

[54] The principle of fundamental justice underlying the entitlement to disclosure is the constitutional right to make full answer and defence. Only a "court of competent jurisdiction" within the meaning of section 24 of the Charter can decide constitutional issues.Footnote 29 Consequently, a Charter right cannot be enforced at a preliminary inquiry.Footnote 30 And from committal onwards, pre-trial motions seeking a Charter remedy cannot be brought before a judge other than the trial judge or a superior court judge.Footnote 31

[55] Stinchcombe dealt with an indictable offence and specifically noted that different considerations might come into play in the context of summary conviction cases. It also held that the right to disclosure only arises at the time of the election of the accused. Notwithstanding these aspects of the decision, it has long been accepted, with virtually no discussion, that the right to full disclosure applies in all cases.

E. Self-represented Accused

[56] Self-represented accused are increasingly appearing before the courts. This is their right. But facilitating their access to justice poses challenges to all participants in the process.Footnote 32 Self-represented accused have the same right to disclosure as represented accused. But the precise means by which disclosure is provided to a self-represented accused must be left to the discretion of the prosecutor based on the facts of each case.Footnote 33 Instructions to prosecutors in various jurisdictions call for specialized access for self-represented accused. Alberta's Prosecution Guideline on Disclosure refers to "controlled and supervised, yet adequate and private" access to disclosure materials in circumstances where the safety, security or privacy of individuals may be at issue if the self-represented accused has unfettered access to documents and the ability to disseminate them freely. Prosecution guidelines in British Columbia provide that Crown counsel can arrange for disclosure to unrepresented accused to occur in a controlled setting, such as arranging for videotapes or other material to be viewed in the prosecution office or the local RCMP or city police detachment.Footnote 34

[57] Most jurisdictions provide for pre-trial judicial case conferences in criminal proceedings. Common practice when the accused is self-represented is to hold the conference in court and "on the record." At the case conference, issues relating to disclosure, including its content, the means of disclosure, and the schedule and supervision of the access of the accused to the material can be discussed. If the parties do not agree, the judge can rule on the issues.

Date modified: