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

III. Recommendations

1) Police and crown collaboration

[59] The Supreme Court of Canada noted in McNeil that the duty on police to provide full disclosure to Crown counsel "is as important as it is uncontroversial". The obligation on investigative agencies to provide the prosecution with all material relating to the investigation of the accused is a necessary corollary to the prosecution’s duty under Stinchcombe. Failure to comply with this obligation is a police disciplinary offence in most Canadian jurisdictions.Footnote 35 Consequently, directions issued to prosecutors and police and other investigators by competent authorities should state:

  1. Investigators and prosecutors are bound to exercise reasonable skill and diligence in their areas of responsibility to disclose all relevant information, even though such information may be favourable to the accused; and
  2. Investigators are under a duty to report to the officer in charge or to Crown counsel all relevant information of which they are aware, including information favourable to an accused, in order that Crown counsel can discharge the duty to make full disclosure.

A) Working Together Effectively

[60] Disclosure obligations in a particular case are determined by the scope of the police investigation and the charges prosecuted. Traditionally, the police alone determined the size of the case they would bring into the court system. The number of accused and charges alleged rested solely on what the police considered appropriate. As a result, the capacity of the court system to handle the prosecution was not always taken into consideration. Close consultation and a jointly developed strategic approach involving police and prosecutors can play an important role in ensuring that the case presented for prosecution can be digested by the court system.

[61] The Martin Report recognized the value of early police and prosecution collaboration.Footnote 36 This collaboration can take place without the prosecution assuming responsibility for charge approval or taking over investigative functions from the police. Prosecutors can provide pre-charge legal advice and logistical and strategic advice on the manageable size and focus for a successful prosecution. The prosecution service can also provide helpful advice on the preparation and distribution of disclosure.

B) Division of Responsibility and Costs

[62] Providing disclosure can be a time-consuming process, especially in large and complex criminal matters. At present there is no Canada-wide model or agreement providing guidance on Crown disclosure management. Consequently, there is no national consensus on important issues including: the respective roles and responsibilities of police and prosecutors; detailed format requirements; timelines; cost allocation and other procedural matters. Questions still arise between police services and prosecution services over "who does what"? For example, "vetting" disclosure to ensure only information subject to the prosecution’s disclosure obligation is disclosed is time-consuming and detailed work. The police tell us prosecutors occasionally rely exclusively on the vetting done by the police and over-inclusive disclosure can be the result. Most police and prosecutors agree vetting disclosure should be a shared responsibility. It must be worked out to suit the circumstances of the particular investigation and prosecution.

[63] Generally speaking, investigators are best placed to identify sensitive information (e.g., informant information, investigative techniques, witness safety, etc.) and must take a primary role in identifying information they believe to be sensitive for prosecutorial review. Prosecutors may agree or disagree with the investigators’ assessment and will need to know the reasons why information has been identified as sensitive.

[64] The LeSage/Code Report contains specific recommendations concerning the respective responsibilities of the police and the prosecution in generating disclosure briefs.Footnote 37

  1. The police should do an initial edit of the brief, electronically highlighting or shading the proposed edits.
  2. The prosecution should then review the brief and make final decisions about the edits.
  3. The police should then provide a master brief to the prosecution, without edits, and a disclosure brief with edits. Each edit should be coded in the margins to explain the basis for the edit to the defence.
  4. As much as possible, all of the above should take place pre-charge.

[65] With respect to specific types of information, the LeSage/Code Report recommends the following;Footnote 38

  1. Transcribing important intercepted private communications and recorded witness interviews, likely to be used at trial, is a joint responsibility of the police and the Crown.
  2. The Crown should advise the police which intercepts and which recorded witness interviews should be transcribed and the police should use civilian employees to do the transcribing.
  3. The police should then include the transcripts in the disclosure brief.
  4. As much as possible, all of the above should take place pre-charge.

[66] The LeSage/Code Report notes disagreements in Ontario around "who pays?" are now being resolved in the context of most large complex cases. The police pay for initial external hard drives, both edited and unedited. The Crown then pays for copies of the hard drive made for disclosure to all accused. There is now universal acceptance of the principle that an accused should not have to pay for basic disclosure.

[67] A cross-sector project in Ontario called "Justice on Target" is working on an electronic solution to disclosure in routine cases. Improved dialogue between police and prosecution officials is helping transcend an unproductive focus on fiscal positions. Shared interests can be achieved through collaborative use of modern information technology. We believe a jointly developed written agreement between police and prosecutors providing a mechanism for resolving disputes, including cost allocation, can assist when contentious issues arise.

C) Assigning Prosecutors to Police Stations

[68] Assigning prosecutors to provide pre-charge advice to large, complex investigations is an accepted practice in most jurisdictions. A more recent development in British Columbia and Ontario is co-locating prosecutors at police divisions or with specific police units. These prosecutors are able to provide timely advice in a wide variety of cases. The police are enthusiastic about having greater access to prosecutorial advice.Footnote 39 Quebec prosecutors provide a "24/7" consultation service to all police services. We are advised this service has been effective from both police and prosecution perspectives and has reduced the laying of unnecessary and weak informations.

D) The Objective Prosecutor

[69] To enhance prosecutorial objectivity, the LeSage/Code Report recommends that prosecutors who have worked closely with police at the investigative stage should not make the decision whether to prosecute or retain carriage of the prosecution if it goes forward to trial. The Report suggests fresh, independent Crown counsel become involved when an investigation is complete. This does not prevent the pre-charge advice Crown from taking on some post-charge roles such as conducting the bail hearing, completing disclosure or providing ongoing advice and assistance to any prosecution.Footnote 40 The response to this recommendation appears largely to be dependant on the role of the respondent. Crown participants at the 2010 National Criminal Justice Symposium did not feel their objectivity was affected by working with investigators to develop a case, but most defence counsel supported the LeSage/Code recommendation.

[70] Charge assessment is an ongoing public and ethical responsibility at all stages of a prosecution. Some prosecution managers have expressed concern about the inefficiency of having different prosecution teams learn a case twice. Other, less drastic ways, to maintain prosecutorial objectivity are available (e.g. supervisory oversight). There is also concern about the consequences of pre-charge advice to the police based on a prosecution theory subsequently rejected or substantially modified by trial prosecutors.

E) Increased Inter-Agency Communication

[71] The Criminal Justice Review ReportFootnote 41 recommends the establishment of a provincial coordinating committee to develop a directive comprehensively setting out the disclosure responsibilities of police and prosecutors and to address disclosure issues on an on-going basis.Footnote 42 Such a directive would increase the likelihood that disclosure responsibilities are understood and carried out. The participation of defence counsel and representatives of the judiciary on the committees would enhance the committee’s effectiveness. In appropriate circumstances, it may be useful to have broader representation (e.g. intelligence services with respect to terrorism prosecutions).

[72] As the Criminal Justice Review Report recognizes, new disclosure issues arise regularly. A good example is the decision of the Supreme Court of Canada in McNeil.Footnote 43 Police services across the country had to immediately respond to the decision. In some cases they sought advice from prosecution services. In other cases, they sought advice from in-house or government legal advisors or retained lawyers. We understand some efforts were made to standardize the advice provided but the lack of a generally recognized advisory body resulted in a significant amount of duplication of effort. A national disclosure advisory body of experienced police, prosecutors, defence counsel and judges (where appropriate)Footnote 44 would be a useful addition to the present arrangements for disseminating and responding to judicial decisions. Such a body could operate as an umbrella organization for provincial coordinating committees. It could also serve as a clearing house for disclosure decisions and provide operational and policy advice to police and prosecution services.

[73] The proliferation of information technology has opened up new possibilities for communication and co-operation between police and prosecution services. There appears to be a large appetite for the sharing of information, policies, and "best practices." Learning from each other and sharing expertise can play an important role in "leveraging" technology advances. A recent memorandum for U.S. Department of Justice prosecutors suggests some of the uses to which information technology can be put:

  • To create an online directory of resources pertaining to discovery issues that will be available to all prosecutors on their desktop;
  • To produce an electronic handbook on discovery and case management so prosecutors have a one-stop resource addressing various topics relating to discovery obligations;
  • To implement a "distance learning" training curriculum and a mandatory training program for prosecutors, paralegals and law enforcement agents;
  • To catalogue electronically stored information recovered as part of investigations; and
  • To create a pilot case management project to fully explore the available case management software and possible new practices to better catalogue law enforcement investigative files and to ensure all information is transmitted in the most useful way to prosecutors.Footnote 45

Specific Recommendations

1.1 Prosecution services should consider making prosecutors available to provide pre-charge advice to the police, including advice in relation to specific investigations. This recommendation is of particular importance in the context of major and complex prosecutions but also applies to routine investigations. We recognize the ability of prosecution services to fully implement this recommendation may be affected by resource limitations.

1.2 Every jurisdiction without a standardized agreement setting out the division and nature of the respective disclosure responsibilities of police and prosecution services should consider establishing a collaborative process to develop one. The agreement should contain a mechanism for resolving disagreements between police and prosecution services, including cost allocation. The mechanism should ensure that when disclosure disagreements arise, police services are given an opportunity to provide input.

1.3 Where they do not currently exist and after due consultation and consideration, all authorities responsible for policing should issue directives to police services within their jurisdiction, directing them to assist Crown counsel in complying with the applicable Attorney General’s directive on disclosure. These directives should direct police, other investigators and prosecutors that:

  1. investigators and prosecutors are bound in their respective spheres to exercise reasonable skill and diligence in examining or reviewing and disclosing all relevant information, even though such information may be favourable to the accused;
  2. they are under a duty to report to the officer in charge or to Crown counsel all relevant information to which they are aware, including information favourable to the accused; and
  3. the disclosure file should identify the officer who has overseen the disclosure.

1.4 We endorse the work being done across the country to develop improved ways for preparing and delivering disclosure through the use of modern information technology. We encourage the project teams doing this work to share the results of their work and the lessons learned from it with the provincial and territorial disclosure coordinating committees referred to in Recommendation 1.5 below.

1.5 We endorse the recommendation in the Criminal Justice Review Report that each province and territory consider establishing a disclosure coordinating committee. Representation on these committees should include: the police, the defence bar, legal aid, prosecution services, courts administration and the judiciary.Footnote 46 The disclosure coordinating committee should collect, circulate and promote disclosure lessons learned and best practices within their jurisdiction. The disclosure coordinating committees should also report disclosure lessons learned and best practices in their jurisdiction to the national advisory board referred to in Recommendation 1.6 below.

1.6 The Committee of Deputy Ministers Responsible for Justice and the Canadian Association of Chiefs of Police should consider the feasibility and composition of a national disclosure advisory board. Representation on the board should include: the police, defence bar, prosecution services, courts administration, corrections and the judiciary. The board should not consider specific cases but review and make recommendations concerning systemic issues of national importance. It is important the establishment of a national advisory board not delay the implementation of disclosure reforms required in specific jurisdictions.

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