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

III. Recommendations

4) The timing of disclosure

A) In-Custody Accused

[100] Stinchcombe states that the accused is not to be compelled to elect or plead without sufficient disclosure to make an informed decision. But accused in custody require disclosure before they elect mode of trial and enter a plea. They need basic disclosure as soon as possible before their bail hearing to assess the strength of the case against them. This information will assist them in determining whether it is likely they will be released on bail. It will also assist them in deciding whether to enter into plea resolution discussions with the prosecution.

[101] It has been suggested to us that the prosecution should ensure disclosure for in-custody cases is screened within two days of receiving it from the police. The two-day screening deadline is accepted by most prosecutors as a "best practice". But many question whether current resourcing levels permit it in their jurisdictions. Other prosecutors indicate they already provide disclosure as fast as possible and an admonition to "expedite" disclosure is not going to make it any faster. The general view expressed by prosecutors is that only in the least complex of cases can Crown screening take place within two days of receiving the brief from the police.

B) Disclosure Timelines

[102] Effective case flow management systems have meaningful goals from inception of a file to its disposition. Especially important are time standards which shape expectations with respect to the maximum length of time appropriate for particular types of cases. In the absence of clear goals, practitioners have no way of measuring their own (or their organization’s) effectiveness in caseload management.Footnote 65 All major studies of trial delay have noted that establishing time limits for each step in the judicial process is one of the most effective ways of reducing delays and improving efficiency. This approach is reflected in the English, Australian and New Zealand disclosure legislation. The only disclosure deadline existing in Canada is the constitutional requirement that the accused be tried without unreasonable delay.

[103] Judicial pretrial hearings are a regular feature in all levels of court in Canada. But clear authority to issue binding directions is not conferred on the judges presiding over these hearings. They have to rely on persuasion. Some counsel, both Crown and defence, are not easily persuaded. Delay should not be used as a bargaining chip by either party. Where counsel are unreasonable, pretrial judges should have authority to establish binding disclosure deadlines, subject to variation where required in the interests of justice.

[104] A number of Canadian jurisdictions are facing an acute pre-trial custody crisis. In Ontario, for example, more than 65% of inmates in provincial institutions are awaiting trial. Delay in providing accused with disclosure is one of many problems contributing to systemic backlog in the courts.

[105] The LeSage/Code Report recommends setting administrative goals for initial disclosure within time limitations running from the date of the charge and commensurate with the nature and complexity of the trial. The Report also recommends the Ontario Police Services Act and the Crown Policy Manual set out these administrative time lines. It has been suggested to us that administrative timelines should be addressed in the agreements contemplated in Recommendation 1.2 above rather than in legislation or inflexible directives.

[106] A number of reports have endorsed the view that in the absence of exceptional circumstances, primary disclosure should be provided at the first non-bail court appearance of the accused. The Report of the Criminal Justice Review and the Early Case Consideration Report suggest that prior to first appearance, an experienced Crown counsel should screen the charges and confirm the material required to be disclosed.

Specific Recommendations

4.1 We endorse the recommendation in the LeSage/Code and Early Case Consideration reports that administrative goals be set for basic disclosure within time limits running from the date of the charge and commensurate with the nature and complexity of the evidence and the trial. These goals should indicate 1) when the Crown brief is to be finalized to the extent possible by the police and provided to the Crown; and 2) when basic disclosure and the Crown’s position in the event of a guilty plea are to be provided to the accused. These administrative goals should be specified in the agreements referred to in Recommendation 1.2.

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