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

III. Recommendations

2) Disclosure management and responsibility

[74] Police must pursue all relevant avenues of investigation behind an allegation of criminal conduct. This can lead to the gathering of immense amounts of information. The information must be effectively catalogued, organized and fully disclosed in order for the disclosure obligations of the Crown to be discharged. As noted in the LeSage/Code Report: "when disclosure is disorganized and incomplete it leads to constant follow-up requests from the defence and this leads to delays".Footnote 47 The 2009 British Columbia Disclosure Management Working Group concluded the failure of police, prosecutors, defence counsel and judges to effectively and efficiently manage the huge amount of information now entering the criminal justice system is a major reason for the disclosure crisis facing the court process.

A) Disclosure Officers and Centres

[75] The notion that police and prosecutors should work together and bring their respective skills to bear in developing investigative projects, deciding charging and prosecution strategy, and preparing prosecution briefs and disclosure is generally accepted. But administrative structures to facilitate this cooperation are missing. An example of how one Canadian jurisdiction has facilitated the co-operative and timely preparation of disclosure materials is Alberta’s experiment with disclosure centres in Edmonton and Calgary. Police and prosecutors work together to assemble prosecution briefs, disclosure packages and efficient responses to requests from defence for additional disclosure materials. Some of the disclosure materials, such as 911 calls or crime scene photographs, are routinely prepared in electronic format.Footnote 48

[76] Alberta began a review of disclosure practices in 2004 with an examination of the integrated disclosure models then in use in London, Ontario; Halifax, Nova Scotia; and Prince Albert, Saskatchewan. This integrated model was adopted in Edmonton and Calgary. Police and prosecutors work together in "disclosure centres" to ensure initial disclosure packages are assembled quickly and responses to requests for additional information are processed efficiently.Footnote 49 A great deal of the disclosure provided by the police in Edmonton and Calgary is now in electronic format. This has resulted in a significantly improved process, particularly with respect to digital forms of evidence such as 911 calls and crime scene photographs. Law enforcement agencies have also indicated the process results in significant savings. Other areas in the province are taking steps to implement integrated electronic disclosure systems.

[77] The cost of the Alberta initiatives is shared between law enforcement and the prosecution service. Operational details and responsibilities are formalized through MOUs between individual police agencies and Crown offices. These efforts are coordinated on a broader basis and best practices are circulated through a provincial disclosure committee with representation from police agencies and the prosecution service.

[78] Although there has been no broad empirical analysis of the impact of these initiatives, anecdotal evidence suggests significant gains in the speed with which disclosure is provided. The integrated approach also reflects the fact that disclosure is a shared responsibility between police and the prosecution. Implementing collaborative operational structures and processes serves to reinforce the shared nature of the disclosure obligation.

[79] In England and Wales a police "disclosure officer" is responsible for examining material gathered by the police during an investigation, providing material to the prosecution and disclosing material to the accused at the request of the prosecutor. Assigning this responsibility to a designated specialist increases the likelihood disclosure will meet quality control standards. Only briefs approved by the disclosure officer are forwarded to the Crown. All other briefs are remitted back to the investigating officer with an indication of what improvements/additional materials are required.Footnote 50

[80] Members of the police community we consulted suggested the introduction of the position of disclosure officer should be studied for possible adoption in Canada. They stressed that to be effective the officer must be of senior rank and have extensive investigative experience. Disclosure officers could be empowered to take appropriate action when officers fail to make full and timely disclosure to the prosecution or to respond to prosecution requests for additional materials or investigative work.

B) The Defence

[81] Defence counsel also face significant information management challenges. In many ways, their information management problems are not dissimilar to those of the police and prosecution (e.g. cataloguing, organizing, recording, and storing information). But they also have unique problems (e.g. financial constraints, legally aided clients, etc.) Once again, information technology may provide some answers. In a recent Quebec prosecution, the defence was provided with online access to disclosure. This appears to be an effective means of providing disclosure if the parties are satisfied on line access is secure.

[82] An innovative suggestion made to us is that disclosure centres like those described above also provide service to defence counsel. After the information gathered by the investigation has been vetted and screened by the police and prosecution at the disclosure centre, it would be reviewed by an on-site defence representative. The defence disclosure package as well as the Crown brief would then be prepared at the disclosure centre. Both the prosecution and defence would receive their disclosure from the disclosure centre.

C) Police Investigative Files

[83] The bulk of the information flowing into and through the criminal justice process originates in police investigative files. Police files should be organized from the outset with disclosure in mind. It is crucial when investigators gather information that they collect and note all relevant material, itemize all potentially relevant or marginal material and categorize what they take into custody to protect as sensitive material. This segregation of central, marginal and sensitive material allows for more efficient and effective file review by the prosecution and subsequent disclosure to the defence.

D) The Crown Brief

[84] The Crown brief is the foundation document for disclosure. We were told that the quality of Crown briefs vary widely across the country, across provinces, and even within police services. The Criminal Justice Review Report recommended the implementation of uniform quality control standards.Footnote 51 At a minimum, the standards should stipulate all police briefs must:

  1. be paginated;
  2. include an index; and
  3. contain a meaningful synopsis of the case, including a list of police and civilian witnesses and a summary of each witness’s anticipated evidence which clearly articulates the significance of that evidence.

[85] The Early Case Consideration Report of this Steering CommitteeFootnote 52 suggests more detailed content. It recommends police and prosecution services in every jurisdiction jointly develop and implement a standard checklist for Crown brief and disclosure packages. The Report stresses the importance of police services developing training programmes to ensure officers are fully aware of and comply with requirements to ensure the preparation of high quality Crown briefs and disclosure packages.

[86] A committee of senior Ontario prosecutors has developed standardized and comprehensive Crown brief formats for all common Criminal Code charges. If approved, the work of the committee will be implemented in cooperation with the Ministry of Community Safety and Correctional Services (MCSCS) and with the Ontario Association of Chiefs of Police (OACP). This work will facilitate the adoption of standard Crown brief and disclosure practices for ordinary cases and logically follows from Ontario’s adoption of the Major Case Management brief in large complex cases.

[87] Brief standardization and quality control methods will only improve operations if front-line officers are aware of and follow them. Management commitment to the process is essential. We believe training of new recruits and continuing education of experienced officers on the importance of effective brief preparation should be considered a priority and Crown brief preparation skills recognized as a performance measure and core competency for promotion to an investigative position.

Specific Recommendations

2.1 Police and prosecution services should work collaboratively to standardize and develop quality control for the briefs provided by police to prosecutors.

2.2 Provincial/territorial disclosure coordinating committees should work collaboratively to develop standardized disclosure checklists and templates to establish shared disclosure expectations in the criminal justice system.

2.3 Provincial/territorial disclosure coordinating committees should examine ways to introduce more information management expertise to the disclosure process.

2.4 Provincial/territorial disclosure coordinating committees should examine the feasibility and utility of establishing administrative structures permitting closer cooperation between police, prosecutors and defence counsel during the disclosure process.

2.5 Provincial/territorial disclosure coordinating committees should give consideration to the feasibility and utility of establishing police disclosure officers in court locations where justified by case volumes.

2.6 Police, prosecution services, defence bar organizations, legal aid services, law societies and judicial educational bodies should jointly develop and present educational programmes to educate justice professionals on their respective disclosure roles and responsibilities.Footnote 53

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