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

III. Recommendations

6) Self-represented accused and disclosure

[134] Self-represented accused are entitled to the same disclosure as represented accused, although not necessarily in the same form. Consequently, as soon as the accused indicates an intention to proceed unrepresented, the court should inform him or her of the right to disclosure and how to obtain it. The prosecution should inform all self-represented accused in writing of the appropriate and impermissible uses of disclosure materials.Footnote 76 Unless the self-represented accused clearly indicates he or she does not wish disclosure, it must be provided before plea or election to enable the accused sufficient time to consider the information when deciding how to proceed. Disclosure must be provided or waived prior to any resolution discussions.Footnote 77

[135] If there are reasonable grounds for concern that leaving disclosure material with a self-represented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, the prosecution may provide disclosure by means of controlled and supervised, yet adequate and private, access to the material.

[136] The prosecution has to consider the ability of the self-represented accused to access the disclosure information when determining whether to provide disclosure to a self-represented accused through electronic means.

A) The Self-Represented Accused in Custody

[137] Providing disclosure to the self-represented accused in custody can pose special challenges. The Martin Report recommends procedures and facilities be set up in custodial institutions for controlling disclosure materials for accused who are in custody while, at the same time, providing the accused supervised, yet full and private, access to these materials. Delivering voluminous disclosure directly to an accused in a remand centre may be a necessary evil. Some of the questions that have to be addressed include the following:

  1. Where do custodial officials store disclosure?
  2. When the disclosure is provided in electronic format, when and where does the accused access and review the material?
  3. Who pays for the computer, software, and word processing lessons?
  4. What obligations do the custodial authorities have with respect to the integrity and privacy of the disclosed material?
  5. Are there Crown witnesses in the same facility as the accused?

Specific Recommendations

6.1 A self-represented accused is entitled to the same disclosure as a represented accused, although not necessarily in the same form. Consequently, a self-represented accused should be told as soon as possible by a judicial officer of the right to disclosure and how to obtain it. The self-represented accused should also receive from the court a standard form letter explaining the right to disclosure and how it is obtained.

6.2 The prosecution should inform the self-represented accused in writing of the appropriate uses of and limits upon the use of the disclosure materials and the consequences of abusing disclosure material.

6.3 Unless the self-represented accused expressly waives disclosure, fully informed of the consequences of the waiver, disclosure must be provided before plea or election and any resolution discussions.

6.4 If there are reasonable grounds for concern that leaving disclosure material with a self-represented accused will jeopardize the safety, security, privacy interests, or result in the harassment of any person, the prosecution may take reasonable preventative steps which do not deny the accused adequate and private access to the disclosure materials.

6.5 In determining whether a copy of all or part of the disclosure materials should be given to a self-represented accused and/or whether terms and conditions should accompany the self-represented accused’s possession of, or access to, the disclosure information, consideration should be given to whether such measures are necessary in the circumstances, including consideration of the need to protect the security and right to privacy of the witnesses and victims or the integrity of the evidence.

6.6 Incarcerated accused, whether or not they are self-represented, are entitled to adequate and private access to disclosure materials under the control and supervision of custodial authorities.

6.7 In determining whether disclosure information should be provided through electronic means, the prosecutor should give consideration to the ability of the self-represented accused to access the disclosure information.

6.8 If a protocol does not exist concerning self-represented accused in custody and disclosure, the national Committee of Deputy Ministers responsible for justice, in consultation with the Canadian Association of Chiefs of Police and the national Heads of Corrections Committee, should develop one.

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