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

III. Recommendations

3) The content of disclosure

A) Current Content

[88] In Stinchcombe the Supreme Court of Canada endorsed the following disclosure content recommended in the Marshall Commission Report.Footnote 54

… the accused is entitled, before being called upon to elect the mode of trial or to plead to the charge of an indictable offence, whichever comes first, and thereafter:

  1. a copy of his criminal record;
  2. a copy of any statement made by him to a person in authority and recorded in writing or to inspect such a statement if it has not been recorded by electronic means; and to be informed of the nature and content of any verbal statement alleged to have been made by the accused to a person in authority and to be supplied with any memorandum in existence pertaining thereto;
  3. to inspect anything that the prosecutor proposes to introduce as an exhibit and, where practicable, to receive copies thereof;
  4. to receive a copy of any statement made by a person whom the prosecutor proposes to call as a witness or anyone who may be called as a witness, and recorded in writing, or in the absence of a statement, a written summary of the anticipated testimony of the proposed witness, or anyone who may be called as a witness;
  5. to receive any other material or information known to the Crown and which tends to mitigate or negate the defendant’s guilt as to the offence charged, or which would tend to reduce his punishment therefore, notwithstanding that the Crown does not intend to introduce such material or information as evidence;
  6. to inspect the electronic recording of any statement made by a person whom the prosecutor proposes to call as a witness;
  7. a copy of the criminal record of any proposed witness; and
  8. the name and address, where not protected from disclosure by law, of any other person who may have information useful to the accused, or other details enabling that person to be identified.

[89] The Martin Report subsequently recommended a model disclosure directive significantly expanding on this list. It was adopted by Ontario and is used as a template by most other Canadian jurisdictions. The items of primary disclosure identified in the directive can be summarized as follows.Footnote 55

The prosecution is required to provide to the defence the following information in its possession unless clearly irrelevant:

  1. A copy of the charge or charges;
  2. An accurate synopsis of the circumstances of the offence;
  3. All statements obtained from persons who have provided relevant information to the authorities, even though Crown counsel does not propose to call them as witnesses;Footnote 56
  4. Statements of any co-accused (whether made to a person in authority or not);
  5. Copies of any written statements;
  6. Copies of any will-say summaries of anticipated evidence, and copies of the investigator’s notes or reports from which they are prepared, if such notes or reports exist;
  7. A reasonable opportunity, in private, to view and listen to the original or a copy of any audio or video recordings of any statements made by a potential witness other than the accused;
  8. Where statements or recordings do not exist, copies of the investigator’s notes, in relation to the persons who have provided relevant information to the authorities;
  9. If there are no notes, then all relevant information in the possession of the Crown counsel that the person could give should be supplied, subject to Crown counsel’s discretion to delay disclosure;
  10. Upon request by the defence, the name, address, and occupation of any person who has relevant information to give;
  11. The criminal record of the accused and any co-accused;
  12. A copy of any written statement made by the accused to a person in authority, and, in the case of verbal statements, an accurate account of the statement attributed to the accused and copies of any investigator’s notes in relation thereto, and a copy of, and a reasonable opportunity to view and listen to, any original video or audio recorded statement of the accused to a person in authority. All such statements or access thereto must be provided whether or not they are intended to be introduced in evidence;
  13. A copy of any police occurrence reports and any supplementary reports;
  14. As soon as possible, copies of any forensic, medical and laboratory reports which relate to the offence, including all adverse reports;
  15. Where reasonably capable of reproduction, and where Crown counsel intends to introduce them into evidence, copies of documents, photographs, audio or video recordings of anything other than a statement by a person, and other materials should normally be supplied to the defence;Footnote 57
  16. A copy of any search warrant relied upon by the Crown, the information in support, and a list of items seized pursuant to the warrant, if any;
  17. If intercepted private communications will be tendered, a copy of the judicial authorization under which the private communications were intercepted;
  18. An appropriate opportunity to inspect any relevant items seized or acquired during the investigation of the offence which remain in the possession of the investigators, whether or not Crown counsel intends to introduce them as exhibits in court;
  19. Upon request, information regarding criminal records of material Crown or defence witnesses that is relevant to credibility;
  20. Upon request, any information in the possession of Crown counsel, for example, information regarding outstanding criminal charges or criminal convictions demonstrated to be relevant to the defence;
  21. Where identity is in issue, and the Crown relies in whole or in part on the visual identification of the accused as the person seen in the circumstances of the crime, all information in the possession of Crown counsel that has a bearing on the reliability of the identification must be disclosed to the accused; and
  22. Any information in the possession of the Crown relevant to the credibility of any proposed Crown witness, including:

    • a) any prior inconsistent statement or subsequent recantations of that person;
    • b) particulars of any promise of immunity or assistance given to that person with respect to a pending charge, bail or sentence, or any other benefit or advantage given; and
    • c) any mental disorder from which that person is suffering that may be relevant to the reliability of his or her evidence.

[90] The administration of justice has benefited from prosecution services adopting comprehensive disclosure regimes. But it can be argued with the benefit of hindsight that the disclosure directives adopted in response to the Martin Report were the beginning of "disclosure creep." The great majority of cases in Canada are resolved by a guilty plea. When the accused is going to plead guilty, does the defence require all the disclosure provided for above?

B) Staged Disclosure

[91] Stinchcombe provides that the accused shall not be compelled to elect or plead without "sufficient" disclosure to make an informed decision. "Sufficient" disclosure does not equate with "full disclosure". There are hints in Stinchombe that the possibility of providing disclosure in stages (Justice Sopinka refers to the "information package" then provided in England under the Criminal Justice Act 1987) is acceptable. However, the current practice in Canada in all but the most routine case is to provide full disclosure at the "front end" of the process.

[92] The Martin Report refers to "primary disclosure", but aspects of the disclosure identified by the report are not necessary if the accused is going to enter a plea of guilty. A significant number of the items enumerated in the Martin Report would not be the subject of prosecutorial disclosure in the United States. An accused in the U.K, Australia and New Zealand does not receive disclosure of many of the items listed in the Martin Report until after entering a not guilty plea. There are no cogent reasons why an accused should automatically receive the following items currently part of "primary disclosure."

  1. All statements obtained from persons who have provided relevant information to the authorities, even though Crown counsel does not propose to call them as witnesses;
  2. Copies of any will-say summaries of anticipated evidence, and copies of the investigator’s notes or reports from which they are prepared, if such notes or reports exist;
  3. A reasonable opportunity, in private, to view and listen to the original or a copy of any audio or video recordings of any statements made by a potential witness other than the accused;
  4. Where statements or recordings do not exist, copies of the investigator’s notes, in relation to the persons who have provided relevant information to the authorities;
  5. If there are no notes, then all relevant information in the possession of the Crown counsel that the person could give should be supplied, subject to Crown counsel’s discretion to delay disclosure;
  6. A copy of any police occurrence reports and any supplementary reports;
  7. A copy of any search warrant relied upon by the Crown, the information in support, and a list of items seized pursuant to the warrant, if any;
  8. If intercepted private communications will be tendered, a copy of the judicial authorization under which the private communications were intercepted;
  9. An appropriate opportunity to inspect any relevant items seized or acquired during the investigation of the offence which remain in the possession of the investigators, whether or not Crown counsel intends to introduce them as exhibits in court; and
  10. Any information in the possession of the Crown relevant to the credibility of any proposed Crown witness, including:Footnote 58

    • any prior inconsistent statement or subsequent recantations of that person;
    • particulars of any promise of immunity or assistance given to that person with respect to a pending charge, bail or sentence;
    • any other benefit or advantage given; and
    • any mental disorder from which that person is suffering that may be relevant to the reliability of his or her evidence.

[93] Defence counsel is in the best position to determine in any particular case what he or she requires. There may be reasons why the defence will want to obtain access to some or all of these items to ensure the client makes an informed plea decision. It does not follow, however, that in every case all of these items will be required by the defence before deciding how to proceed. Current disclosure practices can result in the defence receiving more information than is required to advise the accused on:

  • whether the prosecution has a case;
  • the strength of the prosecution’s case; and,
  • the best position available to the accused in the event of an early resolution.

[94] Time and effort expended by police and prosecutors in preparing and disclosing information of no interest to the defence is a waste of valuable resources. Similarly, effort spent by defence counsel reviewing legally relevant but practically unimportant information is also a waste of time and money.

[95] England, Australia and New Zealand use a "staged" approach to disclosure. This approach provides the defence with the disclosure it needs when it needs it. Initially, defence counsel requires sufficient information to provide comprehensive advice to the accused on the ability of the prosecution to prove its case and the consequences of entering a guilty plea. If the accused decides to proceed to trial, additional disclosure can then be provided.Footnote 59

C) Material outside the Investigative File

[96] The LeSage/Code Report recommends use of the following "practical procedural tools" for early and efficient resolution of disclosure disputes regarding materials outside the investigative file:

Defence requests for disclosure of materials outside the investigative file should be subject to the following requirements:

  1. They must be particularized in order to properly identify the files/materials in question and to explain how the files/materials could assist the defence, as required by the onus placed on the defence in Chaplin;Footnote 60
  2. There must be a real effort by the Crown and defence to discuss the request and try to resolve it pursuant to their duties as "officers of the court" and "ministers of justice";
  3. If unresolved, the defence must bring on a motion in court in a timely way before the judge seized with pre-trial motions;
  4. This judge must set strict timelines for either resolving all disclosure disputes or obtaining rulings at an early stage of the case and well in advance of the trial. Setting a date for trial or preliminary inquiry should only be delayed if the unresolved disclosure is significant in its impact on the accused’s election;
  5. The judge must rule on whether the defence has met its Chaplin onus in relation to the requested files/materials and must rule on any claims of privilege raised by the Crown and challenged by the defence;
  6. It is generally not necessary or advisable to take up court time with a detailed examination of each requested file or document;
  7. It is generally more appropriate, after identifying the potentially relevant and non-privileged files, for the court to order that counsel obtain disclosure by an opportunity to inspect and by requesting copies of only those documents that are determined, upon inspection, to be useful to the defence;
  8. If there are confidentiality concerns about any of the documents to be inspected, the court should order counsel to conduct the inspection on an undertaking that counsel not disclose the contents of any documentFootnote 61 Counsel will only be relieved of the undertaking in relation to any particular document upon obtaining the Crown’s agreement to provide a copy of the document or upon obtaining a further order of the court. Breach of counsel’s undertaking should be treated as very serious professional misconduct; and
  9. Any residual disputes about release of particular documents or parts of documents, after conducting the inspection, can be brought back to the court for a ruling.Footnote 62

D) Consolidated list of disclosure exemptions & inclusions

[97] The police indicate it would assist them to have a comprehensive list of disclosure exemptions and inclusions so they can organize their files based on what should and should not be included in disclosure packages. Such a list also ensures prosecutors get what they require by identifying necessary information and information of marginal, conditional or no relevance. The precise details of exemptions and inclusions vary from jurisdiction to jurisdiction.Footnote 63

E) Tracking Disclosure

[98] Recommendation 41(9) of the Martin Report suggests the prosecution office require a written acknowledgment from the defence when disclosure is provided to the defence. Obtaining acknowledgment of receipt of disclosure is an important task and must be taken seriously. Checklists can be used to monitor the timing and content of disclosure. All disclosure should be dated and the brief flagged so the Crown is aware when additional disclosure has been added to the brief after the first court appearance of the accused. A number of police representatives expressed concern because some prosecution offices do not attach sufficient priority to disclosure tracking.

[99] The "discovery" (i.e. disclosure) memorandum for United States federal prosecutors states: "one of the most important steps in the discovery process is keeping good records regarding disclosure".Footnote 64 Disclosure matters are often the subject of court applications and keeping a record of the disclosures confines the application to substantive issues. Good records avoid time-consuming disputes about what was disclosed and when. And these records can be critical in post-conviction disputes, which are often filed long after the trial of the case. Keeping poor records can negate all the hard work put into a case. Fortunately, technology is rendering record-keeping less onerous and Web-based disclosure may provide a complete solution to disclosure tracking and archiving issues in the future.

Specific Recommendations

3.1 Justice Canada, in consultation with other criminal justice stakeholders, should consider examining whether 1) a staged approach to disclosure is feasible in Canada and 2) it would improve the efficiency of Canada’s criminal justice process without adversely affecting its fairness.

3.2 We endorse the recommendations in the LeSage/Code Report concerning the use of the following procedural tools for early and efficient resolution of disclosure disputes regarding materials outside of the investigative file.

  • Defence requests should be particularized and explain how the materials could assist the defence, as required by the onus placed on the defence in Chaplin.
  • There must be a real effort by the prosecution and defence to discuss the request and try to resolve it.
  • If unresolved, the defence must bring a motion in court in a timely way before the judge seized with pre-trial motions.
  • This judge must set strict timelines for either resolving all disclosure disputes or obtaining rulings at an early stage of the case and well in advance of the trial. Setting a date for trial or preliminary inquiry should only be delayed if the unresolved disclosure is significant in its impact on the accused’s election.
  • The judge must rule on whether the defence has met its Chaplin onus in relation to the requested files/materials and must rule on any claims of privilege raised by the prosecution and challenged by the defence.
  • It is generally not necessary or advisable to take up court time with a detailed examination of each requested file or document unless national security or confidentiality concerns preclude inspection of the requested file or document by anyone other than the court.
  • If there are confidentiality concerns that do not preclude inspection by counsel, the court should issue a direction that counsel inspect the document, subject to an undertaking that counsel not disclose the contents of the document. Counsel will only be relieved of the undertaking in relation to any particular document upon obtaining the prosecution’s agreement to provide a copy of the document or upon obtaining a further order of the court.
  • Breach of counsel’s undertaking should be treated as serious professional misconduct.

3.3 Maintaining accurate disclosure tracking records is an important task. It should be assigned to a specific member of the prosecution team or the Crown office. Organizational skills and attention to detail are important job competencies of the person performing this role. Prosecution services should review the use of information technology to make this task less onerous and facilitate archiving.

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