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

III. Recommendations

7) Early resolution of disclosure disputes

[138] Prosecuting counsel must advise the defence of any decision made not to disclose information in the possession of the Crown that would, but for the decision, be disclosed and the reason for nondisclosure.Footnote 78 Prosecution counsel should also advise the defence of the specific nature of the information, unless disclosure of the nature of the information withheld would reveal the identity of an informer, jeopardize anyone’s safety or security or subject them to harassment, compromise an on-going investigation, or reveal police investigative techniques. Upon request Crown counsel should take any other steps reasonably necessary to facilitate a review by the trial judge of any decision not to disclose.

[139] Recommendation 41(17) of the Martin Report recognizes the principles noted above do not prevent the defence from making further requests for disclosure of information in the possession of the prosecution. The recommendation encourages Crown and defence counsel to narrow and define the issues to assist the prosecution in determining whether the information requested is relevant.

[140] It is not necessary here to reconsider generally the limitations imposed by the caselaw of the Supreme Court of Canada relating to constitutional remedies.Footnote 79 The impediment the jurisprudence creates concerning the ability of the defence to challenge on Charter grounds prosecution decisions to withhold disclosure, is a specific matter that could be addressed by amending the Criminal Code to grant jurisdiction before trial. This could be done in several ways and such an expansion of jurisdiction could significantly expedite effective disclosure.

[141] Despite the indication in StinchcombeFootnote 80 that the right to disclosure under discussion in the case applied in indictable cases and arises at the point of the election of the accused, it has long been accepted that the right applies in all cases and arises at the time of charge. Yet, as the premise for the entitlement is a constitutional right to make full answer and defence, the Supreme Court has held that the right cannot be raised or enforced at a preliminary inquiry or some other phase before trial. This is a systemic impediment or inhibition to prompt and complete disclosure.

[142] There are at least four reasons why it would be undesirable to extend pre-trial jurisdiction over disclosure only to preliminary inquiries. First, it would provide no forum in summary conviction or indictable matters within the absolute jurisdiction of the provincial court. Second, it would force the accused to request a preliminary inquiry just to raise a question of disclosure. Third, it would induce needless elections and re-elections.

[143] The fourth and most compelling reason why it would be undesirable to extend pre-trial jurisdiction over disclosure only to preliminary inquiries is that they take place too late in the process. The accused has an interest in disclosure at the moment he or she is put in jeopardy by a charge. That interest becomes increasingly urgent as the defence is required to make strategic decisions about the orientation of the case. The conduct of a trial is typically not a pressing concern at the early stages, unlike matters of interim release or plea.

[144] If it would be unwise to restrict pre-trial jurisdiction over disclosure to preliminary inquiries, it would be more unwise to provide for it at "any time after charge". This would create another systemic problem, a proliferation of premature or pointless motions. In principle there is no reason why the accused should not be able to seize a court of a motion concerning disclosure at any time after charge but this would be unwieldy in practice. In most instances it would also be unnecessary because the prosecution fulfils its obligation to disclose in an efficient manner. Thus the challenge lies in providing the defence an effective avenue of redress when there is a serious and pressing question concerning timely and complete disclosure before trial.

[145] In every jurisdiction a practice court deals with matters that require pre-trial consideration. There is no obvious reason or principle why disclosure should not be among them. No doubt this extension of jurisdiction would absorb valuable time in court but the net effect would likely be increased efficiency in the preparation and disposition of cases. In this context, increased efficiency means that the parties and the court can ripen a case for trial or disposition earlier in a prosecution than is currently done. This would only occur, however, if a necessary condition of a pre-trial disclosure motion is a reasonable factual ground for belief that disclosure by the prosecution has been tardy or incomplete. Otherwise such a motion would be a waste of time.

[146] In some jurisdictions a judge is designated to manage a case before trial – or even before a preliminary inquiry. This practice takes different forms in different places but, wherever it is used, the practice could be adapted to allow the same judge pre-trial jurisdiction over disclosure matters. This is not inconsistent with extending jurisdiction to a practice court where there is no designated judge for a given case.

[147] There are various issues that should be considered before a decision is taken to extend jurisdiction over disclosure to the pre-trial stages of a case. One imponderable question is whether such an extension in the hope of early efficiency would entail a multiplication of procedures in review and thus result in a net inefficiency. If the defence fails in a pre-trial motion would there be an avenue of review against this decision? If the foundation for seeking disclosure is the right to make full answer and defence, review of a decision against the defence cannot be excluded. It must also follow that the extension of jurisdiction over disclosure to pre-trial phases of a prosecution demands the best possible assessment of whether the risk of review will nevertheless yield a net benefit in the form of increased efficiency in disclosure.

[148] Another question is whether an extension of this jurisdiction should be subject to exceptions. The procedure derived from O’ConnorFootnote 81 and set out in Part VIII of the Code should be debated in this regard and there would be others. Perhaps the most important among these is whether the extension of jurisdiction should allow an application for a stay. It is submitted that this would not be appropriate as a pre-trial remedy for tardy or inadequate disclosure. In BjellandFootnote 82 the Supreme Court made plain that a stay of proceedings for non-disclosure, as for other reasons, will be granted only in the clearest and rarest of cases. The reasons given there have added force before trial. Although the prejudice might be considerable, failures in disclosure before trial are remediable and the ultimate sanction for such failures should be reserved to the trial court as a remedy commensurate with the prejudice. Further, by denying the extension of pre-trial jurisdiction to this remedy there is a diminished risk that pre-trial proceedings will be exploited in an attempt to short-circuit proceedings at trial.

[149] A further question concerns the distinction between ordinary cases and cases of unusual length or complexity. In mega-cases where a direct indictment is preferred, the risk of delay is better managed from the point when the indictment is preferred. When there is no direct indictment, pre-trial jurisdiction over disclosure would necessarily increase the logical possibility of protracted proceedings on this issue.Footnote 83 That is not in itself an argument against the extension of this jurisdiction to the pre-trial stages of a case. The argument for such an extension gains strength if there is a net gain in the promptness and completeness of disclosure. In cases that do not present questions of unusual length or complexity, the extension of jurisdiction would almost certainly yield such efficiencies.

[150] Assuming that the extension of jurisdiction is a good idea, does Parliament have the authority to enact it? The argument against it is that the Supreme Court of Canada has ruled that nobody but a trial judge can grant a constitutional remedy and, accordingly, Parliament cannot contradict that by granting jurisdiction over disclosure at pre-trial phases of a prosecution. At its core, the argument is that the Supreme Court has decided that only a trial court is a court of competent jurisdiction for the purposes of constitutional remediesFootnote 84 and that Parliament has no authority by ordinary legislation to extend that jurisdiction to other courts. It is not clear whether this argument has substance, or how much substance, but it should be noted if only to be dismissed. The thrust of the Supreme Court’s decisions on jurisdiction over constitutional remedies was to assert that the superior court of the province would always have jurisdiction and that for reasons of economy so too would trial courts. Nothing in its cases would preclude the legislature’s extension of jurisdiction to another court, provided that neither of these two principles is breached. Pre-trial jurisdiction over disclosure would not diminish either.

Specific Recommendations

7.1 We endorse the recommendation in the LeSage/Code Report that statutory tools be enacted to obtain early and binding resolution of disclosure disputes and recommend they be extended to all types of interlocutory Charter disputes. The Criminal Code should provide a judge, other than the judge who eventually hears the evidence at trial, with authority to make binding rulings on pre-trial motions, including Charter motions, and to manage the case at the pre-trial stage.

Date modified: