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

III. Recommendations

5) The manner of making disclosure

[107] Stinchcombe makes it clear that the manner (i.e. the means) used by the prosecution to provide disclosure to the defence is a matter of Crown discretion. For example, where safety, privacy, security and related interests are engaged, the prosecution may provide the defence an opportunity to view the material rather than receive a copy of it. Accordingly, there are a number of acceptable ways disclosure can be provided to the defence. These include providing the defence with:

  1. hard copies of the disclosure material in one or more formats;
  2. an opportunity to inspect the disclosure under controlled circumstances (e.g. permitting the defence to review the materials in private, with or without the ability to make copies) at a secure location;
  3. a secure means of accessing a disclosure database on a website; and/or
  4. disclosure material on terms governing how and with whom the defence may use and share the disclosure materials, regardless of the method of disclosure.

A) Disclosure by Access

[108] The common practice in Canada is for the prosecution to provide paper copies of disclosure materials to the defence. In most cases of normal size, this works well. But in unusually large or complex investigations, where the volume of material accumulated during the investigation makes the reproduction of all material normally reproduced impractical. The Martin Report recommends that the prosecution provide the defence with a description or index of the material and a reasonable opportunity to inspect it.Footnote 66 If such procedure is used in a complex investigation, the prosecution must still inform the defence of any exculpatory information of which Crown counsel is aware.

[109] As the Martin Report notes, in a child abduction case there may be tens of thousands of fruitless inquires conducted and noted by investigators before the child is found. It cannot be said these inquires are necessarily irrelevant. They may all be properly subject to disclosure, even though only one, or two, or even none, might ultimately be useful to the defence. In an extremely complex fraud investigation, the relevant documentation may fill many rooms. Although all the documentation is subject to disclosure on the basis that it is not clearly irrelevant, nonetheless there may be very little of it of direct assistance to the defence. In circumstances such as these, it may be sufficient to provide the defence with a description or index of the materials in question and permit such access to the material as is reasonable in all of the circumstances.

[110] A 2004 disclosure discussion paper prepared by Justice Canada noted disclosure by means of access to information in the possession of the prosecution is already possible under current law.Footnote 67 But it does not appear to have become a regular practice.Footnote 68 Legislative amendments providing a firm statutory foundation for the practice, together with parameters for its use, might help encourage its development and use. One option would be for the amendments to specify that the prosecution must provide copies of defined core-disclosure materials, with the remainder of the disclosure to be provided by way of access.

[111] The core-disclosure package suggested under such an approach could include such categories of information as:

  1. the charge or charges;
  2. all statements from persons who have provided relevant information;
  3. all statements of the accused and co-accused;
  4. the criminal record of the accused and any co-accused;
  5. warrants and judicial authorizations; and
  6. police occurrence reports.

[112] The core-disclosure package could also include any exculpatory materials in the possession of the prosecution, including those mitigating or negating the guilt of the accused or reducing his or her punishment.

[113] Another way of structuring such amendments would be to provide the prosecution with a more general authority to provide disclosure through access, subject to the ability of a court to order otherwise. Alternatively or in addition, amendments could define particular categories of material the prosecution could only provide through disclosure by access unless a court ordered otherwise. This could include materials which frequently are of little value, but are not "clearly irrelevant." It could also include materials which are sensitive due to privacy or related concerns (e.g. pornographic materials).

[114] A disclosure by access mechanism would likely be of use mainly in large and complex cases, which frequently generate enormous volumes of material subject to disclosure. In such cases, disclosure through access might be the fastest and most practical and effective means of managing disclosure of extended categories of information. It might also serve to reduce disputes about disclosure, since disputes often arise when it is difficult to determine whether the information in a document meets the standard of relevance. If disclosing such materials would not require copying and furnishing vast quantities of additional documents but would merely be a matter of granting access, the prosecution might be less likely to contest certain disclosure requests.

[115] A number of practical considerations arise. How can the defence meaningfully assess the information to which it is given access? Some level of categorization or other organization – such as a general index of categories of documents – would likely be required for guidance. Granting access to additional disclosure material and providing the means to obtain copies could raise further issues – special file rooms might have to be set aside and special arrangements made to allow physical access. Another area of concern would be providing access to unrepresented accused, especially those who are incarcerated. And issues may arise on the degree to which Crown or police representatives should monitor access, particularly in view of the privacy required by the defence while engaged in a review of the material.

[116] How well would the disclosure by access approach address the major challenges inherent in disclosure? It would not remove the obligation of collecting the wide array of relevant information, assessing it for privilege, and ensuring all the information is, in one way or another, actually made available. Some argue the actual benefits such legislative amendments are likely to realize could be relatively small. In large and complex cases, the challenges of disclosure might best be addressed by effective use of electronic disclosure.

[117] It can also be argued that the disclosure by access approach would only provide a small benefit in a relatively restricted category of cases while at the same time complicating and slowing down the disclosure process. For example, under a core disclosure approach, the practice of separating core and non-core materials could give rise to litigation over what materials must be included as core materials. It is also possible legislative establishment of a procedure to obtain disclosure through access could increase the range of material open to disclosure.

[118] The risk of additional complications under a legislative disclosure by access regime should not be overemphasized. The use of the approach would not be mandatory. The prosecution could evaluate the risks and difficulties of proceeding by disclosure through access on a case-by-case basis and restrict its use to those cases where it is deemed worthwhile. Even if this amounts to a relatively small percentage of cases, these generally will be large and complex cases. It is in these cases that the greatest disclosure difficulties arise and where the benefits may be substantial. Risks or disadvantages may be minimal since the required materials will still be disclosed – whether by providing copies or providing access – and the entire process will remain subject to judicial scrutiny.

B) Pornography

[119] The police community expressed concern about the various ways disclosure is provided in child pornography cases. Of paramount concern is the possibility that the material will fall back into the hands of an offender or other improper party. Concern is intensified where an accused is self-represented. The police are also concerned about whether they may be facilitating the illegal possession of child pornography when they provide illegal images to the defence or create multiple copies (e.g. for counsel and the presiding judge).

[120] It was suggested to us that pornography should not be treated like other forms of information for disclosure purposes. It is not seized information subject to copying, editing and disclosing. It is more akin to seized cocaine. Possession of it is an offence. Disclosure by inspection may be the appropriate way to proceed in all situations, even in the case of defence experts.

C) Electronic Disclosure

[121] Extensive use was made of electronic disclosure in the Air India trial. This included the Crown brief (also disclosed in hard copy) and a second tier of material potentially relevant to the defence but not part of the prosecution case. A third tier of disclosure involved making a large volume of files available to the defence for inspection. To encourage early disclosure and make voluminous disclosure more manageable, the Final Report of the Air India Inquiry recommends the Criminal Code be amended to permit, in complex cases designated as such by the presiding judge, electronic disclosure and the inspection of material by defence counsel.Footnote 69

[122] Technology is playing a rapidly increasing role in circulating criminal justice information. It can achieve new levels of effectiveness and efficiency when wisely deployed. Wise deployment recognizes that the right of the accused to make full answer and defence cannot be adversely affected by technological changes. The 2010 National Criminal Justice Symposium discussed the following examples of how information technology can be better utilized in the criminal justice process without prejudicing the rights of the accused.

  1. Technology can be used to limit unnecessary court appearances and unnecessary costs (e.g. email/telephone appearances and internet scheduling).
  2. The use of web-based disclosure.
  3. The use of electronic knowledge bases.
  4. The potential of voice-activated transcripts.
  5. Inter-sectoral sharing of innovative IT initiatives.

[123] As use of electronic technology becomes more wide-spread and cost-effective, the defence bar will make greater use of it to convey information to the prosecution and the court. Defence counsel currently make extensive use of information technology for legal research purposes and it is only a matter of time until they will make use of the convenience and cost savings that a full range of information technology can provide.

[124] While there is no denying the benefits available through information technology, these benefits usually come with a large initial price tag. Over time the costs associated with enhancing information technology balance out. However, to secure the initial funding required to develop and implement large scale information technology programmes, the justice system has to compete with other government sectors such as health and education. Unfortunately, some early and ambitious provincial efforts to introduce integrated justice systems did not meet with success. As a result, central agencies of government are now reluctant to approve large expenditures for justice information technology.

[125] Some courts were initially resistant to the use of electronic disclosure.Footnote 70 This resistance was largely attributable to flaws in the initial technology and the stubborn refusal of some professional participants in the system to make the transition to an electronic environment. The courts are now generally open to electronic disclosure depending on the following factors:Footnote 71

  1. Circumstances of the user;
  2. Ability to search;
  3. Indexing/organization;
  4. Quality control (accuracy and completeness); and
  5. Equipment/technology requirements.

Defence counsel’s preference for paper over electronic disclosure is no longer considered sufficient to impair the right to make full answer and defence.Footnote 72

[126] A number of studies have validated the benefits of electronic disclosure. The use of electronic disclosure, if the circumstances allow it and if a standardized, high-performance and user-friendly search engine is available, permits evidence to be disclosed in a searchable form. It also allows evidence to be electronically linked to the trial brief.

[127] The LeSage/Code Report advocates the use of electronic disclosure in lengthy, complex prosecutions. It recommends that a directive be issued under the Ontario Police Services Act stating the "Major Case Management" model of electronic disclosure, with Adobe 8 search software, should be utilized as the standard Crown brief in all complex cases.

[128] A team of senior Ontario prosecutors has identified the basic minimum requirements and components of an electronic disclosure package. The team recognized that the package should be organized in a manner familiar and accessible to all users. A straightforward inventory or something akin to the folder organization of paper disclosure should be the minimum threshold. This will ensure accessibility and provide a simple back-up system to protect against the risk of missing something. A basic inventory would list all materials organized by type of evidence or document. Within each folder the materials would be organized by date and witness, etc.

[129] Elsewhere in Canada, electronic standards have been developed for regional memos of understanding, guides, standard crown brief templates and disclosure policies. Based on this material it appears national or provincial standards in the following areas are feasible:

  1. Disclosure inventories & report types to organize material;
  2. Document/evidence types to segregate and categorize material;
  3. Vetting codes to identify sensitive information; and
  4. Disclosure inclusions and exemptions.Footnote 73

[130] Many e-disclosure applications now allow for complex linking of entries in the disclosure package. This means, for instance, that all evidence relating to the search of a particular address (e.g. witness notes, photographs, exhibit lists, warrant, ITO, etc.) or all observations of a particular address or motor vehicle (e.g. witness notes, photographs, surveillance reports, etc.) can be collected and linked together. Linking has undoubted benefits as long as users understand its limitations.Footnote 74

[131] The police in many jurisdictions have taken a leadership role in the development and use of criminal justice information technology. Some of this technology was developed primarily with police needs in mind. But much of it could serve the needs of the broader criminal justice system if there was a commitment to making the necessary changes. Police enthusiasm to modernize and improve the use of information technology makes them strong proponents of mandatory electronic disclosure.

[132] The defence bar and government officials are understandably concerned about the price tag that comes with electronic disclosure. No one disputes the value and convenience of being able to store and search digital information. There is no gainsaying that once the initial investment in information technology is made, cost savings will result. Defence counsel point out, however, it is particularly difficult for them to bear the start up costs associated with a major move to computerization. However, more and more members of the defence bar are accepting that up-to-date information technology is now a necessary cost of doing business.

[133] Remote communities in Canada’s northern jurisdictions do not currently use electronic disclosure. While information technology has the potential to bridge the vast distances between northern communities, it is unlikely to do so in the near future. Cultural differences will also have to be taken into consideration before greater use of electronic disclosure can be implemented in these jurisdictions.

Specific Recommendations

5.1 All national, provincial or regional disclosure standards should recognize the manner (i.e. means) by which the prosecution provides disclosure is appropriately a matter of Crown discretion. The Crown’s exercise of discretion should only be reviewable by the trial judge. In the absence of a trial judge, a judge of the superior court can review the Crown’s exercise of discretion on Charter grounds.

5.2 All national, provincial or regional disclosure standards should recognize in unusually large or complex investigations, where the volume or sensitivity of material accumulated during the investigation makes the normal methods of reproduction impractical, the prosecution’s disclosure responsibility can be discharged by providing the defence with a description or index of the material and a reasonable opportunity to inspect it.Footnote 75

5.3 All national, provincial or regional disclosure standards should 1) recognize that where feasible and subject to judicially approved exceptions on a case by case basis, electronic disclosure is the preferred method of disclosure, and 2) identify electronic disclosure requirements and best practices.

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