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

III. Recommendations

8) Misconduct in relation to disclosure

A) Police

[151] Police officers who engage in misconduct in relation to disclosure run the risk of criminal charges (e.g. obstruction of justice). Disciplinary schemes in five provincial jurisdictions also address failure to disclose evidence as a distinct category of misconduct.Footnote 85 A leading authority on the legal aspects of policing suggests in jurisdictions without provisions specifically governing disclosure of evidence, the issue would be captured by ordinary neglect of duty principles.Footnote 86 In one case considered by the Ontario Police Commission, the failure of an officer to include a witness statement in a Crown brief was found not to be deliberate. Consequently, misconduct was not established.Footnote 87 However, in Fortner and Goderich Police,Footnote 88 a constable made false allegations against a second officer resulting in criminal charges. The constable then failed to disclose important evidence. The Commission held this and other misconduct required the constable’s resignation.

B) Prosecutors

[152] Canadian prosecutors run the risk of employment, professional and legal sanctions if they engage in misconduct with respect to their disclosure obligations. In a leading Canadian case on prosecutorial misconductFootnote 89, a prosecutor in a murder case delayed disclosing scientific testing to the defence implicating a person other than the accused. Defence counsel complained to the prosecutor’s Deputy Minister. The prosecutor received a letter of reprimand and was removed from the case.

[153] The Law Society commenced disciplinary proceedings against the prosecutor, citing a rule of the Alberta Code of Professional Conduct (found in most provincial rules of professional conduct), requiring prosecutors to "make timely disclosure to the accused or defence counsel". The issue before the Supreme Court of Canada was the authority of the Law Society to discipline prosecutors for the exercise of their professional duties, including as agents of the Attorney General. The Court held there is a clear distinction between prosecutorial discretion and professional conduct. The latter can be regulated by a law society and the law society has jurisdiction to investigate any alleged breach of its ethical standards, even those committed by Crown prosecutors in connection with their prosecutory discretion.Footnote 90

[154] Quoting from Ethics and Canadian Criminal Law,Footnote 91 Justices Iacobucci and Major noted not every breach of the legal and constitutional duty to disclose will constitute an ethical violation. Non-disclosure can arise from mere inadvertence, a misunderstanding of the evidence, or even a questionable strategy adopted in good faith. A finding of professional misconduct must be based upon an act or omission revealing an intentional departure from the fundamental duty to act in fairness.Footnote 92

[155] Prosecutors who misconduct themselves with respect to disclosure also risk employment discipline consequences. Disciplinary steps taken against government employees are seldom made public. This approach accords with standard human resource practices. As a result, however, interested members of the public usually do not learn what action, if any, has been taken against a prosecutor who has not complied with his employment obligations relating to disclosure. This can lead the public to erroneously believe there have been no employment consequences for the prosecutor.

C) Defence Counsel

[156] Defence misconduct in relation to disclosure was considered in a 2004 Justice Canada consultation paper. It noted disclosure information has been found in the possession of persons unconnected with the proceedings, posted anonymously on penitentiary bulletin boards, in public places or posted on the Internet. Distribution of materials in this manner violates the security and privacy of victims, witnesses, and third parties.

[157] It is inappropriate for any counsel to give disclosure information to the public and counsel would not be acting responsibly as an officer of the court if he or she did so.Footnote 93 Furthermore, while it is the constitutional right of the accused to receive disclosure materials in order to make full answer and defence, this does not mean that these materials may be dealt with in an irresponsible manner as between counsel and the accused. The Martin Report cautions defence counsel to maintain custody or control over disclosure materials, so copies of these materials are not improperly disseminated.

[158] Improper conduct by counsel (e.g. complicity in witness harassment) may amount to a criminal offence such as obstruction of justice. Rules of professional conduct include general statements concerning the responsibilities of counsel as advocate but they do not explicitly address defence misconduct relating to disclosure. Some defence counsel have expressed concern that inconsistent and varied prosecution requests for undertakings relating to disclosure cast aspersions on their ethics and professional reputations. There may be value in the formation of a joint prosecution/defence/police/judicial committee to draft standard disclosure undertakings for sensitive situations.

Specific Recommendations

8.1 Provincial/territorial disclosure coordinating committees should consider the need to develop guidelines relating to the proper and improper use of disclosure and to draft a standard disclosure undertaking.

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