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

List of Recommendations

1) Police and crown collaboration

1.1 Prosecution services should consider making prosecutors available to provide pre-charge advice to the police, including advice in relation to specific investigations. This recommendation is of particular importance in the context of major and complex prosecutions but also applies to routine investigations. We recognize the ability of prosecution services to fully implement this recommendation may be affected by resource limitations.

1.2 Every jurisdiction without a standardized agreement setting out the division and nature of the respective disclosure responsibilities of police and prosecution services should consider establishing a collaborative process to develop one. The agreement should contain a mechanism for resolving disagreements between police and prosecution services, including cost allocation. The mechanism should ensure that when disclosure disagreements arise police services are given an opportunity to provide input.

1.3 Where they do not currently exist and after due consultation and consideration, all authorities responsible for policing should issue directives to police services within their jurisdiction, directing them to assist Crown counsel in complying with the applicable Attorney General’s directive on disclosure. These directives should direct police, other investigators and prosecutors that:

  1. investigators and prosecutors are bound in their respective spheres to exercise reasonable skill and diligence in examining or reviewing and disclosing all relevant information, even though such information may be favourable to the accused;
  2. they are under a duty to report to the officer in charge or to Crown counsel all relevant information to which they are aware, including information favourable to the accused; and
  3. the disclosure file should identify the officer who has overseen the disclosure.

1.4 We endorse the work being done across the country to develop improved ways for preparing and delivering disclosure through the use of modern information technology. We encourage the project teams doing this work to share the results of their work and the lessons learned from it with the provincial and territorial disclosure coordinating committees referred to in Recommendation 1.5 below.

1.5 We endorse the recommendation in the Criminal Justice Review Report that each province and territory consider establishing a disclosure coordinating committee. Representation on these committees should include: the police, the defence bar, legal aid, prosecution services, courts administration and the judiciary.Footnote 98 The disclosure coordinating committee should collect, circulate and promote disclosure lessons learned and best practices within their jurisdiction. The disclosure coordinating committees should also report disclosure lessons learned and best practices in their jurisdiction to the national advisory board referred to in Recommendation 1.6 below.

1.6 The Committee of Deputy Ministers Responsible for Justice and the Canadian Association of Chiefs of Police should consider the feasibility and composition of a national disclosure advisory board. Representation on the board should include the police, defence bar, prosecution services, courts administration, corrections and the judiciary. The board should not consider specific cases but review and make recommendations concerning systemic issues of national importance. It is important the establishment of a national advisory board not delay the implementation of disclosure reforms required in specific jurisdictions.

2) Disclosure management

2.1 Police and prosecution services should work collaboratively to standardize and develop quality control for the briefs provided by police to prosecutors.

2.2 Provincial/territorial disclosure coordinating committees should work collaboratively to develop standardized disclosure checklists and templates to establish shared disclosure expectations in the criminal justice system.

2.3 Provincial/territorial disclosure coordinating committees should examine ways to introduce more information management expertise to the disclosure process.

2.4 Provincial/territorial disclosure coordinating committees should examine the feasibility and utility of establishing administrative structures permitting closer co-operation between police, prosecutors and defence counsel during the disclosure process.

2.5 Provincial/territorial disclosure coordinating committees should give consideration to the feasibility and utility of establishing police disclosure officers in court locations where justified by case volumes.

2.6 Police, prosecution services, defence bar organizations, legal aid services, law societies and judicial educational bodies should jointly develop and present educational programmes to educate justice professionals on their respective disclosure roles and responsibilities.Footnote 99

3) The content of disclosure

3.1 Justice Canada, in consultation with other criminal justice stakeholders, should consider examining whether 1) a staged approach to disclosure is feasible in Canada and 2) it would improve the efficiency of Canada’s criminal justice process without adversely affecting its fairness.

3.2 We endorse the recommendations in the LeSage/Code Report concerning the use of the following procedural tools for early and efficient resolution of disclosure disputes regarding materials outside of the investigative file:

  • Defence requests should be particularized and explain how the materials could assist the defence, as required by the onus placed on the defence in Chaplin.
  • There must be a real effort by the prosecution and defence to discuss the request and try to resolve it.
  • If unresolved, the defence must bring a motion in court in a timely way before the judge seized with pre-trial motions.
  • This judge must set strict timelines for either resolving all disclosure disputes or obtaining rulings at an early stage of the case and well in advance of the trial. Setting a date for trial or preliminary inquiry should only be delayed if the unresolved disclosure is significant in its impact on the accused’s election.
  • The judge must rule on whether the defence has met its Chaplin onus in relation to the requested files/materials and must rule on any claims of privilege raised by the prosecution and challenged by the defence.
  • It is generally not necessary or advisable to take up court time with a detailed examination of each requested file or document unless national security or confidentiality concerns preclude inspection of the requested file or document by anyone other than the court.
  • If there are confidentiality concerns that do not preclude inspection by counsel, the court should issue a direction that counsel inspect the document, subject to an undertaking that counsel not disclose the contents of the document. Counsel will only be relieved of the undertaking in relation to any particular document upon obtaining the prosecution’s agreement to provide a copy of the document or upon obtaining a further order of the court.
  • Breach of counsel’s undertaking should be treated as serious professional misconduct.

3.3 Maintaining accurate disclosure tracking records is an important task. It should be assigned to a specific member of the prosecution team or the Crown office. Organizational skills and attention to detail are important job competencies of the person performing this role. Prosecution services should review the use of information technology to make this task less onerous and facilitate archiving.

4) The timing of disclosure

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.

5) The manner of making disclosure

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 100

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.

6) Self-represented accused and disclosure

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.

7) Early judicial resolution of disputes

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.

8) Disclosure misconduct

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.

9) Disclosure codification

9.1 Justice Canada should continue its collaborative initiative to examine codification of the law of disclosure. Consideration should be given to whether there are better ways to address Canada’s disclosure problems. Specific issues the initiative should address include:

  1. providing judges in addition to the trial judge with authority to make early disclosure decisions;
  2. summary conviction proceedings;
  3. disclosure timelines;
  4. electronic disclosure;
  5. disclosure by access and inspection; and
  6. disclosure issues relating to prosecutions involving sensitive information relating to national security, national defence or international affairs.

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