Chapter 3 - Disclosure and the Pre-Charge Relationship between the Police and the Crown

A. Introduction

The accused's right to disclosure of all relevant and non-privileged information in the possession of the Crown is guaranteed by s. 7 of the Charter. 1 Furthermore, failure to comply with this right is closely related to the risk of miscarriages of justice. 2 For these reasons, the duty to make full disclosure is one of the most important obligations in the criminal justice system.

We do not intend to embark upon a lengthy discussion of the law of disclosure as the jurisprudence is well known. Our focus is on whether efficient and effective practices and procedures for providing disclosure presently exist in large complex cases and whether reforms are needed.

Virtually every party who made submissions to the Review agreed that disclosure is a constant source of dispute and difficulty in long complex cases in Ontario. Our analysis of the leading authorities in this area, as well as our four case studies, confirm that disclosure disputes have plagued these cases and are a serious cause of delay and inefficiency.

The problems associated with disclosure practices and procedures, on the Crown/Police side, all tend to revolve around the absence of a standard "best practice" as to the form, content and timeliness of disclosure. Some cases and some jurisdictions exhibit sound practices whereas others exhibit very poor practices. The "best practice" is obviously a well-organized, comprehensive Crown brief provided to the defence shortly after charges are laid. When disclosure is disorganized and incomplete it leads to constant follow-up requests from the defence and this leads to delays. Related issues are who pays for disclosure, who is responsible for transcribing relevant taped interviews and intercepts and who is responsible for vetting or editing privileged and irrelevant material from the disclosure package. Again, there is no uniform protocol or practice governing these points.

On the defence side, the most common problems with disclosure practices and procedures all tend to revolve around requests for materials that are not part of the investigation and that are at the outer edges of relevance. The Stinchcombe test - "not…clearly irrelevant" - has been "set quite low" and, therefore, "includes material which may have only marginal value to the ultimate issues at trial." 3 Defence requests for "marginal" materials are very difficult for the Crown to evaluate, especially if the defence fails to particularize and explain the request. These requests may also raise third party privacy interests when they seek files outside of the particular investigation. For all these reasons, lengthy litigation in court tends to ensue where the judge is required to examine large numbers of documents. Once again, no standard "best practice" has emerged to prevent these delays.

B. The Solutions to the Issues on the Crown/Police Side

The absence of any consistent standard as to the form, content and timeliness of disclosure is hard to understand, given that it is now almost 17 years since Stinchcombe was decided. Over 15 years ago, a broad-based committee chaired by the Honourable G. Arthur Martin, Q.C. (the Martin Committee) spent more than a year studying disclosure and other issues related to the early stages of the criminal process. The Committee's report recommended, inter alia, that the Solicitor General utilize the powers in s. 3(2)j of the Ontario Police Services Act to "issue directives and guidelines" requiring all police forces in Ontario to comply with the Attorney General's new and detailed Directive on Disclosure. This Crown Directive had been recommended earlier in the report. 4 We are not aware of any such "directives and guidelines" having been issued to police forces in Ontario although the new Directive to Crown counsel was issued, as recommended.

Six years later, another broad-based committee made similar recommendations. The Report of the Criminal Justice Review Committee, chaired by Justice Hugh Locke, Senior Judge John Evans and the present Deputy Attorney General, Murray Segal, stated the following about disclosure (in its Executive Summary): 5

Crown disclosure is not only a crucial component of an accused's right to make full answer and defence, it is also vital to the efficient functioning of the criminal justice system. To ensure that efficient disclosure practices are instituted and maintained across the province, police and prosecution co-operation and co-ordination must improve. A provincial co-ordinating committee should be established to develop a directive that comprehensively sets out the disclosure responsibilities of the police and prosecutors, and to address disclosure issues on an on-going basis. It is also urgent that a new and effective Memorandum of Understanding (MOU) be negotiated between police representatives and the Ministry of the Attorney General to govern the production, quality and format of police and disclosure briefs. Comprehensive policies must also be developed concerning the disclosure of audio and video taped evidence and the transcription of witness statements.

The Committee's report expressly recommended that "uniform quality control standards be implemented across the province" applicable to "all police briefs," and that "a joint directive or standing order comprehensively setting out the disclosure responsibilities of the police and prosecutors…be issued by the Solicitor General and the Attorney General." 6 Once again, we are not aware of this recommendation ever being implemented.

Although the above history may appear to be non-responsive, we are pleased to report that this is an area where substantial progress has been made in recent years. All major police forces working on large complex cases in Ontario, together with both federal and provincial prosecutors, appear to have reached a consensus on a uniform standard for disclosure in these cases. This new standard disclosure brief is welcomed by the defence bar because it is well-organized, comprehensive and timely. Accordingly, our recommendations in this area reflect a "best practice" which can easily be implemented as we are following a model that is already in existence in many cases and it is a model that is supported by all parties. It simply needs to be made the subject of a directive under the Police Services Act, as recommended over 15 years ago by the Martin Committee, to ensure that it is implemented consistently across the province in all major cases.

The model that has emerged, and that we support, has four important features:

  • First, it involves much closer collaboration between the police and the Crown at the pre-charge stage than has historically existed in our justice system. This allows the Crown and the police to consult as to the size and focus of the case, before any charges are laid, such that a manageable prosecution is more likely to emerge. It also allows the police and the Crown to begin building the disclosure brief at the pre-charge stage so that it is substantially ready once charges are laid.
  • Second, it involves the use of electronic disclosure in a standard format, known as the "Major Case Management Brief". It has 52 comprehensive file folders and the same standard Adobe 8 search software for use by all parties, whether police, Crown or defence. The development of a standard disclosure brief should put an end to the uneven practices, between different jurisdictions and different cases, that presently exist. For example, police occurrence reports, witnesses' criminal records, photographs, 911 calls, radio transmissions, wiretaps and tape-recorded interviews would all be included in the initial disclosure brief instead of losing time with defence follow-up requests for these kinds of materials, as presently happens when standard comprehensive disclosure practices are not followed. The standard "Major Case Management Brief", as we understand it, contains all materials relevant to the investigation, including those mentioned above, and it therefore complies with the "quite low" Stinchcombe standard of relevance.
  • Third, pre-charge involvement of the Crown allows for much easier and speedier resolution of some of the areas of past disagreement between the Crown and the police, such as who is responsible for vetting the brief and who determines what interviews and intercepts are relevant and should be transcribed. Using electronic disclosure also resolves many of the difficulties surrounding costs and who should pay for disclosure.
  • Fourth, and last, pre-charge involvement of the Crown speeds up the preparation of the brief and allows for timely disclosure to the defence, soon after charges are laid. In this way, realistic and prompt administrative timelines can be established for initial disclosure.

Each of these four points raises its own issues, including some important legal issues, which are discussed below together with our recommendations.

C. Closer Police and Crown Collaboration at the Pre-Charge Stage

There has been a natural evolution towards much closer police and Crown pre-charge collaboration over the past 20 to 30 years. As noted above, criminal procedure has become much more complex than it was in an earlier era. Police investigative procedures are now the subject of pre-trial motions to determine whether there has been a Charter violation, whether evidence will be admitted under the new "principled approach" and whether a statutory process, such as a wiretap authorization or search warrant, has been properly followed. The police have increasingly turned to Crown counsel for pre-charge legal advice in order to navigate these difficult waters. The importance and confidentiality of this advice-giving relationship has been recognized as part of solicitor and client privilege. 7 It is simply not feasible in the modern era to expect the police and Crown to work in entirely separate silos, as they once did.

At the same time, the police and the Crown remain constitutionally independent from one another. The police cannot be directed by any governmental official in their operational duties, in order to protect criminal investigations from political interference. In Shirose, the Court was unanimous in holding that "the Commissioner [of the RCMP] is not to be considered a servant or agent of the government while engaged in a criminal investigation. The Commissioner is not subject to political direction." The Court adopted Lord Denning's famous pronouncement, in this regard, to the effect that police officers are "independent of the executive" and, when carrying out criminal investigative duties, police officers are "not the servant of anyone, save of the law itself." 8

Although we recommend close police and Crown collaboration at the pre-charge stage, for the obvious legal and practical reasons set out above, we do not wish to be taken as advocating a form of pre-charge screening or charge approval as practised in some other provinces. None of the participants vigorously recommended this practice and we have not studied it closely. 9 Nor should the Crown take over investigative duties which are, by constitutional convention, the responsibility of the police. The close collaboration that we recommend means advice-giving by the Crown and cooperation by the police in various areas detailed below. However, the police remain independent and it is the police who must determine, at the end of the investigation, whether to swear an Information under s. 504 of the Criminal Code. 10

In the context of the large complex case, the justification for close police and Crown collaboration at the pre-charge stage goes well beyond merely providing legal advice on investigative techniques such as search warrants, wiretaps, undercover agents and tape recorded "KGB statements". Rather, the Crown needs to engage with the police early on as to the scope of the investigation, the targets of the investigation and the theory of the case. In other words, the police need pre-charge advice in these very large cases as to what a manageable or feasible prosecution would look like, if it is to emerge at the end of the investigation. There is no point in the police pursuing a sprawling unfocused investigation, with hundreds of targets, if it will lead to a case that cannot be prosecuted because there are too many accused and overwhelming disclosure problems. 11

Indeed, it is our understanding that the current practice that is emerging, where the police and Crown are already collaborating much more closely at the pre-charge stage in many large cases, came about after bad experiences with some early "mega-trials" that had not been carefully planned in advance and that never reached trial after charges were laid. As a result, modern police investigations in large complex cases, such as those carried out by Ontario's new "Guns and Gangs Unit" and the "Combined Forces Special Enforcement Unit", may now include pre-charge Crown consultations and advice as to the theory, focus and size of the case, all with a view to creating a manageable case that can be effectively prosecuted.

In addition, there are great benefits to the post-charge disclosure process if the police and Crown collaborate closely at the pre-charge stage. In this way, the disclosure brief will be built each day, as the investigation proceeds, and will be substantially ready when charges are laid.

We note that the police/Crown relationship has evolved in a similar way in the United Kingdom. There is now much closer collaboration at the pre-charge stage in that country, while still maintaining the historic independence and separation of roles as between the police and the Crown. 12

In conclusion on this point, we believe that early Crown involvement in the case, at the investigative stages, should help to ensure that when charges are laid the prosecution is focused and viable, many of the legal problems will have been foreseen and dealt with, and the disclosure materials will already be well-organized and close to a state where they can be provided to the defence.

Recommendation 1:

The police and Crown should collaborate much more closely in large and complex cases, at the pre-charge stage, than they have done historically in Ontario. Collaboration does not mean charge approval nor does it mean that the Crown takes over police investigative functions. Rather, it means legal advice on investigative procedures and any substantive issues, assistance with the preparation of disclosure and, finally, advice as to what would be a manageable size and focus for a successful prosecution.

D. Can the Crown Giving Pre-Charge Advice Play a Role in the Prosecution Once Charges are Laid?

If the police and the Crown adopt the above recommendation, and in some large complex cases it represents the current practice, then important questions arise concerning who should conduct any subsequent prosecution. In particular, should Crown counsel who has been heavily involved in the case at the investigative stages be allowed to make the post-charge determination as to whether a prosecution should proceed?

As with the police, the role of the Crown in deciding whether to prosecute is steeped in longstanding constitutional precepts. The Supreme Court of Canada, in its recent unanimous judgment in Krieger, held that "the ultimate decisions as to whether a prosecution should be brought, continued or ceased and what the prosecution ought to be for" are amongst "the core elements of prosecutorial discretion" and that these independent Crown powers are protected from outside interference by "the fundamental principle of the rule of law under our Constitution." 13 In this regard, the Court referred with approval to the earlier decision of Binnie J. in Regan where he described the independent role of the Crown in these terms: 14

The duty of a Crown Attorney to respect his or her 'Minister of Justice' obligations of objectivity and independence is no less fundamental. It is an essential protection of the citizen against the sometime overzealous or misdirected exercise of state power. It is one of the more important checks and balances of our criminal justice system and easily satisfies the criteria [for a s. 7 principle of fundamental justice].

The Martin Report explains why the Crown's exercise of discretion, in deciding whether to prosecute, must be independent of the police investigation: 15

The mutual independence of Crown counsel and the police has many advantages. As will be discussed in greater detail below, separating the investigative and prosecutorial powers of the state is an important safeguard against the misuse of both. Such separation of power, by inserting a level of independent review between the investigation and any prosecution that may ensue, also helps to ensure that both investigations and prosecutions are conducted more thoroughly and thus more fairly.

... the independence of the Attorney General, and thus his or her agents, in deciding whether a prosecution is in the public interest and, therefore, should proceed, must be accorded due recognition, because of its important role in preventing misuse of government power, and because of the importance in ensuring that fatally flawed prosecutions do not proceed.

How are these important principles to be applied in the modern world of much closer police and Crown collaboration at the investigative stages of a case? We do not think that any bright line rule can be stated as to exactly how much Crown involvement, at the investigative stage, would fatally compromise the important constitutional duty of deciding objectively whether to proceed with a prosecution. It will always be a question of degree. For example, Crown counsel in a smaller jurisdiction, who merely gives legal advice on a search warrant or wiretap or some other investigative technique, would still remain sufficiently independent to screen the charges at the end of the police investigation. 16 On the other hand, Crown counsel in a large complex case, working out of a major urban office like the "Guns and Gangs Unit" where the police and Crown meet regularly and agree on the size, focus and theory of the case and collaborate closely on the preparation of the disclosure brief, all with a view to producing a viable prosecution, would likely not satisfy the Regan requirement of "Crown objectivity and the separation of the Crown from police functions." 17

All of the parties with whom we consulted agreed, at a minimum, that it is a "best practice" in a case such as the latter example above, to assign a fresh Crown to lead any prosecution and determine independently whether to prosecute and who to prosecute. Well-resourced offices like the "Guns and Gangs Unit" in Toronto follow this "best practice" at the present time and have found that it works well. We believe that this is the correct approach in a major case where Crown counsel has been significantly involved in the investigative stages, as described above.

However, this does not mean that the pre-charge advice Crown can have no involvement at the post-charge stages. This would cause delays and would be both unwise and impractical. The pre-charge advice Crown will already know the case well and, therefore, conducting the bail hearing, ensuring that the disclosure brief is completed in a timely way, providing continuity of advice to the prosecution team and supporting the lead prosecutor in other ways are all functions that can properly and effectively be taken on at the post-charge stage. What matters is that core prosecutorial discretions, like those enumerated in Krieger, be exercised by fresh and independent Crown counsel. In this way, the Crown will fulfill its constitutional duties and will be protected against any appearance of blind allegiance to the police investigation.

We acknowledge that our recommendation on this point may have resource implications for smaller offices where only one or two Crown counsel with sufficient skill and experience may be available to both advise the police at the investigative stage of a long complex case and conduct any subsequent prosecution. In this regard, we note the views expressed in the Federal Provincial Territorial Heads of Prosecution Committee's Report of the Working Group on the Prevention of Miscarriages of Justice: 18

With the possible exception of mega-cases, it is recommended that all jurisdictions consider adopting a "best practice" of having a different Crown Attorney prosecute the case than the Crown Attorney who provided the charging advice. This recommendation, however, must take into account the realities of some prosecution services, where there may be a single prosecutor for a large geographic area. In some communities there may be only one Crown Attorney who handles many "routine" matters and is the sole contact with the local police. This can lead to close identification between the Crown and police, and hence a reluctance to disagree. In such situations, second opinions and supervision by senior/regional Crown counsel should always be available.

Recommendation 2:

Crown counsel who have collaborated closely and significantly with the police at the investigative stages ought not to make the decision whether to prosecute. Fresh and independent counsel ought to make this important determination. This does not prevent the pre-charge advice Crown from taking on other post-charge roles such as conducting the bail hearing, completing disclosure or providing ongoing advice and assistance to any prosecution.

E. Electronic Disclosure in a Comprehensive Standard Format

The problem of inconsistent disclosure practices, as between different police forces, different Crown offices and different cases, has already been described above. The solution to this problem does not necessarily require electronic disclosure. It simply requires a directive under s. 3(2)j of the Police Services Act setting out an organized and comprehensive format for the Crown brief. That brief could be either a paper brief or an electronic brief. What is important is that it be consistent and comprehensive, across all cases and all jurisdictions in the province. To be comprehensive it must reflect the "quite low" Stinchcombe standard of relevance by including all of the materials relating to the investigation. These materials have already been summarized above in Section B of this chapter. This would put an end to the time that is presently lost due to defence follow-up requests for the investigative materials that are routinely left out of initial disclosure by some police forces or Crown offices or that are left out in some individual cases.

Although electronic disclosure is not a necessary solution to the problem of inconsistent disclosure practices, it is a very practical tool that assists in solving the problem. The "quite low" Stinchcombe standard covers a broad array of investigative materials, much of which will end up being completely insignificant or of "marginal value to the ultimate issues at trial," as Cory J. put it in Dixon. 19 As a result, the sheer size or quantum of materials to be disclosed can be daunting in a "mega-trial". To have police officers photocopying all of this material is wasteful of their time and it is slow and expensive. Electronic disclosure is a much faster, simpler and less expensive means of ensuring that initial disclosure is comprehensive in these large complex cases.

There were early difficulties with the introduction of electronic disclosure. Many lawyers lacked the necessary skills to access electronic disclosure and, more importantly, there were problems with the technology. 20 In spite of these technical difficulties that arose in some of the early cases, the principle that disclosure obligations could be satisfied in an electronic format appears to have been accepted by the courts with little difficulty. The challenge was simply to find a comprehensive and readily searchable format that made the information "reasonably accessible." 21 As a matter of principle, it makes sense that disclosure can be made in an electronic format. In Blencowe, Watt J., as he then was, made the point succinctly by stating, "what the constitution requires is prosecutorial disclosure. It does not insist upon a particular form of disclosure as a constitutional principle" [emphasis in the original]. 22 Many law reform proposals have embraced electronic disclosure, for the practical reasons discussed above, but have insisted that it must include a "user friendly search engine." 23 Recent decisions appear to increasingly accept electronic disclosure and defence motions seeking hard copy disclosure have been dismissed, provided the electronic files are well-organized, comprehensive and searchable. 24

The submissions we received from senior federal, provincial and municipal police officers, from federal and provincial Crown prosecutors and from defence counsel were uniform in advising us that the technical problems of the past have now been overcome. The "Major Case Management" electronic format, with its comprehensive 52 file folders and Adobe 8 search software was uniformly praised by the participants in our Review as the solution to past difficulties with electronic disclosure. We observed a demonstration of its operation and concur in the submissions that we received. This format includes an index, a synopsis of the Crown's case, transcripts of relevant taped interviews and of relevant intercepts as well as "wave files" of all recorded interviews and intercepts. The notes and documents generated by the police investigation are all scanned into the appropriate file folders and this comprehensive investigative/disclosure brief is built as the investigation proceeds. To the extent that police services are able to adopt electronic notebooks there will be no need for scanning and no further concerns about legibility of notes.

The electronic investigative file is stored on an external hard drive and, after appropriate editing, a copy of the external hard drive is made for disclosure to the defence. As the investigation continues, at the post-charge stage, new investigative material can be added to the appropriate file folders and new hard drives can then be produced and disclosed to the defence. Alternatively, if the additional material is brief, such as post-mortem reports or Centre of Forensic Science reports, paper disclosure can be made as these reports are received by the Crown.

The development of this form of electronic disclosure has been a quiet success story, in an area that has not generally been the subject of a lot of good news. The police and prosecutors who developed the "Major Case Management" model deserve a great deal of credit and we commend them. 25

Of course, as with all technological developments, we are quite sure that the Adobe 8 search software will eventually be overtaken by something newer and better. For now, we have a sound working model and it should be mandated and implemented across the province in all major cases. When a better model emerges a new directive can be issued replacing the old one.

If our recommendation is accepted, and standardized electronic disclosure based on the "Major Case Management" format becomes the norm in large cases, this will have implications for the bar. We do not believe that any responsible counsel today would insist that he/she is unwilling to accept disclosure in this form. In any event, we concur with the views of Sinclair J. in Piaskowski, as follows: 26

It seems to me that the use of a computer today in a law practice is as much an expectation as a telephone or a photocopy machine. Surely it is today a tool of the trade one reasonably expects a lawyer to possess and employ. It could, I suppose, be argued that a computer is today a necessity to the proper and efficient practice of law. It is however my view that if it is not a necessity, its absence is unnecessarily limiting and restricting to that proper and efficient practice. If a lawyer so wishes to restrict himself or herself that is his or her choice; but that choice ought not to restrict opposing counsel, even if it is counsel for the Crown, particularly in the circumstances of a complex, voluminous piece of litigation, whether criminal or civil.

We anticipate, based on our consultations, that the judiciary in Ontario will share these views. If the police and Crown invest in accessible and comprehensive electronic disclosure, they must not be put to the additional expense and delays involved in photocopying paper briefs for the defence.

Counsel may still wish to work from hard copies, especially when preparing for trial and when examining and cross-examining witnesses in court. Electronic disclosure allows counsel to select and print those particular documents that counsel needs for the trial brief and to bring that more selective set of documents to court. It must be remembered that the disclosure brief encompasses a broad array of materials, much of which counsel will never use at trial. The trial brief is completely separate and only emerges as a result of counsel's "work product". In this regard, we agree with Powers J. in Greer: 27

In Therrien, the court recognized that counsel often, if not invariably, print copies of some of the electronic disclosure. The court recognized that this is often necessary to suit counsel's particular needs and preferences. However, the court said that it does not follow from the fact that it may be necessary to create hard copies for some, but frequently not all of the materials in electronic format, that disclosure in that format is insufficient to satisfy the constitutional common law obligations of the Crown to provide disclosure.

If the accused or counsel requires a hard copy of any of the material on the hard drive other than the video or audio portions it is a simple matter of printing it from the hard drive. This makes a great deal more sense than having volumes of paper that they may never need. This may be the answer for the defence counsel who is unable to learn to type and requires a paper copy to note up.

Our mandate was focused only on the long complex case and not on all the normal cases that make up the great majority of criminal prosecutions. However, we cannot leave the present topic without noting that we received an excellent briefing from the Ministry of the Attorney General's "Upfront Justice Project". One of the important initiatives of this Project is the development of standardized and comprehensive Crown briefs for all of the different kinds of prosecutions under the Criminal Code. A committee of senior prosecutors from across the province has worked extensively on this initiative for a number of years and has now completed its work. Assuming the Ministry approves of their work, it can only be implemented through cooperative efforts with the Ministry of Community Safety and Correctional Services (MCSCS) and with the Ontario Association of Chiefs of Police. We urge the adoption of standard Crown brief disclosure practices, in ordinary cases, as the natural counterpart to the adoption of the Major Case Management brief in large complex cases.

Finally, we note that the adoption of electronic disclosure in long complex cases will have significant implications for correctional authorities. Time, space and equipment will have to be made available in order to allow those accused in custody the opportunity to review disclosure, with and without counsel. Disclosure by way of external hard drive, however, does mean that correctional authorities will only need to provide a computer. The external hard drive would be provided by the Crown to the defence, who would then provide it to the jail. It could be taken away by the defence if bail is granted at any point. We have been advised by MCSCS that they recognize the importance of disclosure and will work to accommodate access to electronic disclosure. To date, they advise, they have accommodated any request regarding electronic disclosure.

Electronic disclosure may also have implications for the courts. To the extent that counsel are comfortable working with electronic exhibits, and to the extent that the courts are equipped to receive and project electronic exhibits, this would greatly expedite the process of entering exhibits at trial, especially in jury trials. The judge, of course, would need to be provided with software allowing him/her to search for and retrieve electronic exhibits. This would be particularly useful in complex commercial crime cases with large numbers of documentary exhibits. There are currently very few court rooms in Ontario that are capable of dealing with an electronically-managed and presented trial.

Recommendation 3:

A directive should be issued under the Police Services Act to the effect that the "Major Case Management" model of electronic disclosure, with Adobe 8 search software, should be utilized as the standard Crown brief in all long complex cases.

F. Vetting, Transcribing and Paying for Disclosure

1. Introduction

There are a number of practical problems relating to disclosure that have remained somewhat unresolved in the 15 years since the Martin Report was issued. We wish to briefly address three of these issues: first, who is responsible for vetting or editing the disclosure brief; second, who is responsible for transcribing the relevant taped interviews and intercepts; and third, who should pay for disclosure.

We can be brief in our discussion of these three issues because we believe they have been and will be largely resolved, in the context of the long complex case, by the adoption of our proposals set out above in Recommendations 1 and 3. We do not wish to diminish their importance, by this brief discussion, since resolving these three issues is important to speeding up the disclosure process. Nevertheless, it appears to us that the participants in our Review all agree with the resolution that we propose. Our recommendations on these points flow naturally from a system of close police and Crown collaboration at the pre-charge stage and from electronic disclosure on the "Major Case Management" model.

2. Who is Responsible for Vetting or Editing the Disclosure Brief?

The problem of vetting or editing the disclosure brief emerges from Stinchcombe. 28 In that case, the Court held that disclosure can be completely withheld for two reasons - relevance and privilege - and can be delayed for two further reasons - witness safety and ongoing investigation. Accordingly, there are four potential areas of editing or vetting that need to be considered before the initial disclosure brief is provided to the defence.

As a matter of practical common sense, we believe that the four areas of editing are the joint responsibility of both the police and the Crown. It is the police who will know best what information could identify a confidential informant, what information would compromise an ongoing investigation, what information might reveal a secret police investigative technique, which witnesses have legitimate safety concerns and what personal identifiers would disclose a witness' whereabouts. It is essential that the police engage on these subjects and advise the Crown as to what should be edited. As a result, we recommend that the police do an initial review of the disclosure brief and electronically shade or highlight the parts of the brief that the police believe should be withheld or delayed, before providing disclosure. Indeed, this task can be completed on an ongoing basis, as the electronic brief is being built. It should not involve any significant additional work. However, the ultimate decisions as to editing of disclosure are legal decisions and they must be made by the Crown in accordance with the law. Stinchcombe is clear in this regard and so the Crown must review the police proposals for vetting and then make final decisions. In particular, the Crown will know best how to apply the relevance, privilege and witness safety criteria after receiving factual advice from the police.

When we suggested this practical joint approach to vetting the disclosure brief, all participants agreed and it was not the subject of any controversy. When the police and Crown work together in a cooperative manner, as is now the case in many large complex cases, this kind of team approach to editing is accepted and it works well. Furthermore, when electronic tools for editing are available, the time and costs incurred by blacking out and photocopying the edited brief do not become an issue. 29

Once the vetting has been agreed upon, the police should provide two hard drives to the Crown, one that is complete and unredacted which will be kept by the Crown as a master brief, and one that is redacted for disclosure to the defence. Much of this editing can be done at the pre-charge stage, if the police and Crown are collaborating as we recommend, so that post-charge delays are avoided. All editing of the disclosure brief should be coded in the margin, so that the defence knows the basis for each edit as soon as it receives initial disclosure. In this way there will be no delays caused by defence follow-up requests asking the Crown to explain the basis for the editing.

Recommendation 4:

Vetting or editing the disclosure brief is a joint responsibility of the police and the Crown. The police should do an initial edit of the brief, electronically highlighting or shading the proposed edits, and the Crown must then review the brief and make final decisions. The police will then provide a master brief to the Crown, without edits, and a disclosure brief with edits. Each edit should be coded in the margins to explain its basis to the defence. As much as possible, this cooperative approach to editing should take place at the pre-charge stage of the case.

3. Who Should Transcribe Relevant Taped Interviews and Intercepts?

Video-taping and audio-taping of witness interviews has now become widespread, especially in large cases. This is a beneficial development as it preserves an accurate record of the witness' statement and it enhances the likelihood of hearsay uses of the statement at trial. 30 However, it is difficult for the Crown and defence counsel to quickly review a tape-recorded statement and it is even more difficult to use it in court to examine or cross-examine a witness or to refresh memory. The complex procedures in ss. 9, 10 and 11 of the Evidence Act are particularly difficult to apply without a transcript and a great deal of court time is wasted when cross-examination is attempted with an audio or video tape. In addition, it creates a very poor record for appellate review. Accordingly, the necessity of transcribing the relevant witness interviews has become a significant new cost and source of delay. Whether this transcribing is strictly part of "disclosure", when a tape recording of the interview has already been disclosed, is a technical legal issue that we need not debate. Transcribing the important witness interviews clearly facilitates preparation of the case and any possible resolution of the case. It is beneficial to the administration of justice, regardless of whether it is required by law.

Furthermore, many large complex cases involve wiretaps. Section 189 of the Criminal Code does require that "a transcript of the private communication, where it will be adduced in the form of a recording" must be served on the accused, together with notice and a schedule identifying the intercepts, prior to trial. This is not just a disclosure requirement; it is also an extremely valuable forensic tool at trial as the transcripts can be made exhibits and can be provided to the trier of the fact, both to follow along while the tapes of the intercepts are being played, and to review during deliberations. 31 It is therefore essential that the relevant intercepts be transcribed.

Once again, we are pleased to report that the difficult issue of who should be responsible for the task of transcribing the relevant intercepts and recorded interviews in these long complex cases seems to have been resolved. Where the police and Crown collaborate at the pre-charge stage, as we recommend, the Crown can and should advise the police as to which intercepts and which interviews are sufficiently important to the case that they justify the time and expense of transcription. The police should then utilize civilian employees to transcribe these particular tape recordings so that the transcripts are included in the disclosure brief. It would obviously be wasteful to transcribe all tape-recorded interviews and intercepts.

This sensible collaborative approach is presently being used effectively in many large complex cases and we recommend its uniform adoption. As with the vetting process described above, this transcribing of the relevant intercepts and interviews should take place to the greatest extent possible at the pre-charge stage in order to avoid post-charge delays. It must be recognized that this recommendation has cost implications for police services and there must be sufficient budgetary allocations made to permit the hiring of civilian employees to do the transcribing.

Recommendation 5:

Transcribing important intercepted private communications and recorded witness interviews, likely to be utilized at trial, is a joint responsibility of the police and the Crown. The Crown should advise the police as to which intercepts and which recorded witness interviews should be transcribed and the police should use civilian employees to do the transcribing. The police will then include the transcripts in the disclosure brief. As much as possible, this cooperative approach to transcribing should take place at the pre-charge stage of the case.

4. Who Should Pay for Disclosure?

There is little that we can usefully add on this subject to what was said 15 years ago in the Martin Report. The Martin Committee was made up of 14 senior representatives of the police, Crown and defence, chaired by the Honourable G. Arthur Martin Q.C., and they all signed the final Report. The Report extensively analysed the issue of who should pay for disclosure and concluded, sensibly, that it was a shared responsibility between the police and the Crown. The police were responsible for producing a comprehensive brief to the Crown for prosecution, and should pay for it, and the Crown was responsible for producing a comprehensive disclosure brief to the defence, and should pay for it.

A patchwork of inconsistent arrangements exists across the province, although it appears that the scheme of the Martin Report is generally followed. Once again, these recommendations need to be entrenched in a Police Services Act directive so that there is no uncertainty as to the budgetary requirements of the police and Crown and so that consistent arrangements exist for all police services and all Crown offices.

The core of the Martin Report reasoning on this issue is as follows, and we simply adopt it: 32

As discussed above, in the introduction to this chapter, the duty of the police to disclose to the Crown is undoubted. This duty includes, in the Committee's view, providing to the Crown, at the expense of the police, one copy of the materials to be disclosed. Providing one copy of the material relevant to the case, perhaps in the format of a Crown Brief, is simply one aspect of the police officer's responsibilities in marshalling a case for presentation in court by Crown counsel. Crown counsel are, as discussed above, independent of the police in the conduct of prosecutions. Therefore, Crown counsel must be provided with a package of material that is sufficiently comprehensive to permit the prosecutorial functions of charge screening, providing disclosure, preparing the case, and presenting it in court to be discharged independently of the police.

...

In the Committee's view, however, a different situation prevails with respect to subsequent copies of material needed for disclosure purposes. Fundamentally, disclosure to an accused person is the duty of the Crown. It is not the duty of the police, although, of course, disclosure cannot be accomplished by the Crown without the co-operation of the police. Therefore, the Committee thinks it right for the Ministry of the Attorney General to bear the actual costs of the materials needed to produce the disclosure necessary to discharge Crown counsel's obligations to an accused person.

In simple terms, then, the Committee's recommendation pertaining to the sharing of costs of disclosure between the Crown and the police parallels directly the essential duties of each, with each bearing the costs of their own respective duties.

Once again, we are pleased to report that the historic difficulties in this area appear to have been resolved in the context of large complex cases. The police pay for the cost of the initial external hard drives, both edited and unedited, that are provided to the Crown at the end of the investigation. The Crown then pays for copies of the hard drives that are made for disclosure to all of the co-accused.

This resolution of the issue accords with the Martin Report and has undoubtedly been facilitated by the advent of modern electronic disclosure practices. If the police are continuously building the brief in electronic form as the investigation proceeds, there is only minimal additional cost involved in downloading that brief onto an external hard drive and then providing it to the Crown. The great expenditures of time and money that used to be devoted to photocopying are now a thing of the past in these large complex cases.

It can be seen how Recommendation 3 above has important spin-off benefits, especially in relation to this issue of costs.

Recommendation 6:

The police should pay for copies of the brief, both edited and unedited, to be provided to the Crown for the purpose of prosecution. The Crown should pay for copies of the brief to be provided to all co-accused for the purpose of disclosure.

G. The Timeliness of Disclosure

If the above six recommendations are adopted and implemented, we believe that they will substantially speed up delivery of the initial disclosure brief to the defence, shortly after charges are laid. As Stinchcombe makes clear, providing early disclosure in this manner does not preclude ongoing disclosure as the investigation proceeds and as further relevant information is received by the Crown during the post-charge period. Indeed, Stinchcombe uses the term "initial disclosure" to describe what must be provided prior to election and notes that the obligation "is a continuing one and disclosure must be completed when additional information is received." 33

Although we are confident that the above six recommendations will greatly reduce delays caused by slow and inefficient disclosure practices on the police/Crown side, we wish to conclude this part of the Chapter by recommending the adoption of administrative targets for timely disclosure. All of the leading studies of trial delay have noted that establishing time limits for each step in the judicial process is one of the most effective ways of reducing delays and improving efficiency. 34 We all know from personal experience that we generally work diligently and efficiently when we are facing deadlines. If no deadlines are imposed, we put things off or give other things priority. Not surprisingly, the studies have found that the same common sense proposition applies to the underlying causes of trial delay.

Accordingly, administrative goals should be set for timely initial disclosure, whether 35 days or eight weeks for long complex cases or some other number, but it is important to set goals that run from the date of the charge. These goals can be adjusted for particularly complex cases and, of course, they do not preclude ongoing disclosure of materials that emerge later. We recommend that police services and Crown offices set standard coordinated administrative goals for delivery of the brief to the Crown and then to the defence, and issue directives to this effect. We understand that many police services have already done this and the directives state that timely initial disclosure by the target date is an important police duty. Of course, if these administrative goals for initial disclosure in large complex cases are to be consistent across the province, as we believe they should be, the standards need to be fixed by directive under both the Police Services Act and the Crown Policy Manual so that police and Crown disclosure timelines are coordinated.

In this regard, we note that the 1999 Report of the Criminal Justice Review Committee recommended that "In the absence of exceptional circumstances, disclosure should be provided to the accused at his or her first court appearance." 35 The Ministry of the Attorney General's "Up Front Justice Project" has worked hard to implement this recommendation and we commend their efforts. Similarly, the Steering Committee on Justice Efficiencies, a broadly-based committee of senior judges, justice officials and defence counsel that was established by Justice Ministers, issued its Final Report on Early Case Consideration in February, 2006. Amongst its recommendations were the following: the first post-bail appearance should be "no later than four weeks from the date of arrest;" the police should finalize the Crown brief "no later than three weeks from the date of arrest" and provide it to the Crown "one week prior to the first appearance"; and "in the absence of exceptional circumstances full disclosure should be provided routinely to the accused…on the first appearance [where the accused is out of custody]" and "within seven to 14 days of arrest, for those accused persons in custody." 36

It can be seen that there is broad support for the principle that disclosure should be provided on the first appearance after bail has been determined. The directives that we recommend should simply establish a standard date for the first appearance, both in ordinary cases and in complex cases, and the administrative goal should be to have "initial disclosure" available on that date. The judiciary should be consulted on this point as the date for a first post-bail appearance is sometimes set by the judiciary and sometimes by the police, depending on who releases the accused from custody.

Recommendation 7:

Standard administrative goals for timely initial disclosure should be set by directive under the Police Services Act and in the Crown Policy Manual.

H. The Solutions to the Issues on the Defence Side: Requests for Materials Outside the Investigative File

One of the most difficult issues we encountered in our Review is the problem of how best to manage defence requests for materials that fall outside the investigative file. We outlined this problem above, in the introduction to this chapter. As noted, these requests test the outer limits of Stinchcombe "relevance", they may also raise third party confidentiality issues and they can cause lengthy delays and complex motions before the trial court.

Typical examples of these kinds of requests include the following: past criminal investigative files relating to a Crown witness, in order to establish past disreputable conduct relevant to credibility; past work performed by a Crown expert in other cases, in order to test the expert's competence; discipline and personnel files relating to police officers, in order to discover possible misconduct relevant to credibility; and other criminal investigative files relating to miscellaneous issues such as alternative suspects, the grounds for a wiretap or an allegation of racial profiling.

We note that these kinds of materials will generally be inadmissible in evidence, as they often run afoul of the collateral facts rule. 37 Stinchcombe relevance for disclosure purposes does not depend on the admissibility of evidence, if the materials could be used as the basis for further investigations or could be helpful in formulating questions at trial. 38 Nevertheless, it must be recognized that these kinds of materials generally have limited uses and they challenge the outer edges of Stinchcombe relevance. They can be referred to as "marginal" in many cases, to adopt the terminology of Dixon.

Because these requests for materials outside the investigative file are at the outer margins of even the "low" Stinchcombe relevance standard, we believe that there is an onus on the defence to particularize and explain the relevance of such requests. The Crown must provide comprehensive disclosure of the investigative file, as Recommendation 3 above provides, because the investigative file is presumptively relevant. The materials beyond that file are not presumptively relevant unless the defence establishes a link.

The distinction between our approach to disclosure of the investigative file, where the onus is on the Crown to justify non-disclosure, and materials requested from sources outside the investigative file, where the onus is on the defence, is rooted in the Supreme Court of Canada's jurisprudence. In Stinchcombe the material being sought was witness statements that were clearly part of the investigative file. Sopinka J. famously stated that "the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to insure that justice is done." Accordingly, he placed the onus on the Crown to establish lack of relevance. 39 Just over three years later, in Chaplin, the Court decided the first case that attempted to apply these same principles to materials sought from outside the investigative file. Sopinka J. again gave the unanimous judgment of the Court and stressed this particular distinction between the two cases on three separate occasions: 40

This appeal concerns the limits of Crown disclosure obligations in criminal prosecutions, flowing from this court's decision in R. v. Stinchcombe, and amplifies the procedural structure of disclosure obligations as articulated in Stinchcombe, and subsequent case law. Specifically, the issue is whether an accused facing trial on a criminal charge is entitled to know if he or she has been named as a primary or secondary target in any wire-tap authorizations unrelated to the investigation of the current criminal charge, obtained in the period from the charge up to the time of trial.

...Counsel representing the provincial and federal governments notified the appellants that:

(a) there were no provincial wiretap authorizations in effect pertaining to this particular investigation during the time period in question...

It is very significant that the Crown disclosed that there were no wiretap authorizations pertaining to the investigation of the charges being tried in the time-period in question.

...Applying the foregoing to this appeal, I am of the opinion that the accused failed at trial to establish a basis for the existence of wiretap authorizations or evidence derived therefrom which is potentially relevant to making full answer and defence.

The critical fact here is that the Crown stated that no wiretaps had been authorized as part of the investigation leading to the charges, making this appeal fundamentally different than the situation in Dersch, where wiretaps in relation to the charges being tried were known to have existed. [emphasis added]

Unlike Stinchcombe, the Court in Chaplin clearly placed a burden on the defence when what was being sought was not "part of the investigation".

Some counsel do not appear to appreciate that the burden is different in relation to these "marginal" requests. We have seen a number of instances where the request is expressed in broad unqualified terms seeking whole categories of documents. They tend to resemble a shopping list rather than a considered request for relevant information made in circumstances where the burden is on the defence. In R. v. Girimonte, the Court of Appeal dealt with this kind of request. The defence sought "all disciplinary records, internal discipline records, documentation from personnel files, including all information pertaining to misconduct activities of each police officer and government agent including all U.S.A.T.F. police." Doherty J.A., speaking for the Court, described the request as abusive: 41

Disclosure demands which are no more than "fishing expeditions", seeking everything short of the proverbial kitchen sink undermine the good faith and candour which should govern the conduct of counsel. For example, counsel's demand for "documentation from personnel files" of all Canadian and American police officers involved in the investigation can only be described as frivolous and abusive. No reasonable person would suggest that personnel records of all police officers involved in a criminal investigation must be turned over to the defence at the outset of a prosecution. It would be obvious to anyone that the prosecution would resist compliance with such a far-fetched demand. Disclosure demands like some of those made in this case seem calculated to create needless controversy and waste valuable resources rather than to assist the accused in making full answer and defence.

Subsequent case law has been similarly dismissive of broad unqualified requests for materials outside the investigative file, referring to them as "fishing expeditions". This line of authority puts an onus on the defence, based on Chaplin, to show that materials outside the investigative file exist and that they could help the defence. As Sopinka J. put it in Chaplin, the policy purpose for placing this onus on the defence is "to preclude speculative, fanciful, disruptive, unmeritorious, obstructive and time consuming disclosure requests...Fishing expeditions and conjecture must be separated from legitimate requests for disclosure." 42

In summary then, we believe the proper approach is to place a strong onus on the Crown to comprehensively disclose the investigative file (in Recommendation 3) but to place the onus on the defence to meet its Chaplin burden in relation to materials outside the investigative file. This means, at a minimum, a particularized request explaining the basis for believing that the extraneous materials exist and how they could assist the defence.

The Crown must then make a good faith effort to discuss the request with defence counsel and both sides must attempt to resolve the matter. Sopinka J.'s admonition in Stinchcombe should be foremost in the minds of both counsel, whenever disclosure is being discussed: 43

I am confident that disputes over disclosure will arise infrequently when it is made clear that counsel for the Crown is under a general duty to disclose all relevant information. The tradition of Crown counsel in this country in carrying out their role as "ministers of justice" and not as adversaries has generally been very high. Given this fact and the obligation on defence counsel as officers of the court to act responsibly, these matters will usually be resolved without the intervention of the trial judge.

If both counsel remember their duties as "officers of the court" and as "ministers of justice", then it should only be in an exceptional case that disclosure requests need to be the subject of a motion in court. Most disclosure disputes are amenable to reasonable compromise and counsel on both sides have a duty to seek such compromises.

Assuming the matter cannot be resolved, defence counsel must bring a formal written motion in court seeking the requested disclosure. The judge seized with pre-trial motions (discussed below in Chapter 4) should order that all disclosure disputes must either be resolved by cooperative consultation between the parties or must be brought on for a ruling in court in a timely way. This should take place long before the trial. We agree with the practice in the United Kingdom, as set out in the Lord Chief Justice's Protocol on the Control and Management of Heavy Fraud and Other Complex Criminal Cases: 44

At the onset the judge should set a timetable for dealing with disclosure issues. In particular, the judge should fix a date by which all defence applications for specific disclosure must be made.

If there is an onus on the Crown to make timely disclosure, then there must be an onus on the defence to advise the Crown of any further disclosure requests in a timely way. Stinchcombe speaks of a duty on the defence to raise the matter "at the earliest opportunity." 45 If our recommendations below in Chapter 4 are accepted, concerning giving pre-trial judges the power to rule on disclosure motions, then "the earliest opportunity" will be as soon as that pre-trial judge is assigned to the case. The Court of Appeal's recent decision in Toms implicitly takes the same view as the Court spoke disparagingly of a "last minute motion", brought on "the eve of the first trial date", which sought "to send the Crown in pursuit of files spread across Canada over a 21 year period." Not surprisingly, the Court upheld the trial judge's ruling dismissing the motion on the basis that "it was a fishing expedition." 46

The above approach, requiring the judge assigned to the pre-trial phase of the case to set a timetable and rule on all defence disclosure requests at an early stage, should put an end to the phenomenon of disclosure requests that drag on for years. Allowing disclosure disputes to remain outstanding for long periods of time, right up to the trial, is a recipe for adjournments and delay. Again, experience in the United Kingdom is instructive on this point as the Court of Appeal recently issued a Disclosure Protocol which states: 47

There is very clear evidence that, without active judicial oversight and management, the handling of disclosure issues ... can cause delays and adjournments. The failure to comply fully with disclosure obligations, whether by the prosecution or the defence, may disrupt and in some cases even frustrate the course of justice ... undermining the overall performance and efficiency of the criminal justice system ... As part of the time tabling exercise, the judge should set a date by which any applications are to be made and should require the defence to indicate in advance of the cut-off date for specific disclosure applications what documents they are interested in and from what source.

It should be noted that defence disclosure requests can cause delay not only when they are made at the last minute, shortly before trial. They also become a source of delay if the court refuses to set a date, either for preliminary inquiry or trial, as long as some disclosure request remains unresolved. Section G of this Chapter has already dealt with the timeliness of Crown disclosure. It notes that Stinchcombe requires "initial disclosure" to be made prior to the accused's election. It has never been the law that full and complete disclosure must be in counsel's hands before there can be an election and a date set for preliminary inquiry or trial. It is only where some core aspect of the Crown's case has not been disclosed, and it is of such significance that it could legitimately influence the accused's election, that it is reasonable to delay setting a date for the preliminary inquiry or trial. The reality of long complex cases is that disclosure will be ongoing throughout the process. Good counsel can still prepare and make decisions, without needing adjournments, provided they have all truly significant disclosure. The courts must accept that it is unreasonable to delay setting dates because some disclosure remains outstanding. The status of outstanding disclosure should be monitored by the pre-trial judge, and motions should be ruled on where necessary, but this should not delay setting a date.

Assuming that a defence motion seeking further disclosure is brought on in a timely way and is supported by a particularized notice with supporting materials, difficult questions still remain as to the extent of the court hearing. At a minimum, the Court must rule on whether the defence has met its Chaplin burden and must rule on any claims of privilege raised by the Crown. But once the Court has determined that the files sought by the defence exist and that they could assist the defence in the Chaplin sense, and the Court has further ruled that the files are not subject to any claim of privilege raised by the Crown, we do not recommend that the Court become involved in a time-consuming document by document examination of the files. This is a poor use of judicial resources not only because it is cumbersome and time-consuming, involving argument and adjudication over each document, but because more efficient alternatives exist.

In R. v. O'Connor, the Supreme Court of Canada held that once the judge has made a preliminary ruling of "likely relevance," in relation to documents that are subject to third party privacy interests, the next step is that "the judge should examine the records." 48 However, in the subsequent case of M. (A) v. Ryan, involving a sensitive claim of privilege over a sexual assault complainant's psychiatric records, the Court seemed to resile from its earlier position and held that it was not necessary to laboriously examine each document in court. McLachlin J., as she then was, stated: 49

The requirement that the Court minutely examine numerous or lengthy documents may prove time-consuming, expensive and delay the resolution of the litigation. Where necessary to the proper determination of the claim for privilege, it must be undertaken. But I would not lay down an absolute rule that as a matter of law, the judge must personally inspect every document at issue in every case. Where the judge is satisfied on reasonable grounds that the interests at stake can properly be balanced without individual examination of each document, failure to do so does not constitute error of law.

If sensitive rulings on privilege claims can be made without examining each document, as Ryan holds, then surely disclosure motions should not engage the judge in a "time-consuming, expensive" examination of large numbers of documents.

Once the judge has made broad rulings on relevance and privilege, then the privileged or irrelevant documents should obviously not be produced. But the remaining class of non-privileged and potentially useful documents should be inspected by the parties out of court. It is clear that disclosure obligations can be satisfied by an opportunity to inspect. In Stinchcombe (No.2), the Court stated the following: 50

If the Crown has originals of documents which ought to be produced, it should either produce them or allow them to be inspected.

The Martin Report is to the same effect, recommending that core disclosure materials should be produced but that in relation to more marginal materials the defence should "inspect the investigative agency's file in relation to the offence" and request copies of anything useful that emerges from the inspection. 51 We were advised that this form of disclosure, by way of inspection of the requested file or files, has often been used successfully in Ontario and elsewhere.

Instructing counsel to obtain disclosure by an opportunity to inspect is a particularly useful and appropriate tool when dealing with materials on the outer edges of Stinchcombe relevance. Even if a group of files "could" be helpful to the defence, in the Chaplin sense, the reality is that the vast majority of individual documents will not be of interest to counsel, once they have been inspected. It is counsel who can best make this determination, quickly and efficiently, and so the onus should be on counsel to inspect the potentially relevant files and request copies of only those documents that actually are helpful, rather than ordering the Crown to photocopy thousands of documents, most of which will not be helpful.

An excellent example of this procedure is R. v. Guess where disclosure of "voluminous" wiretaps was sought by the defence. The trial judge made an order granting "access" to the wiretap logs "for so long as is reasonably necessary...to review the files...Upon review, any documents or information which Defence Counsel believe might reasonably assist the Accused in making full answer and defence to the Charge...may be identified to Crown Counsel by Defence Counsel." The order then required both counsel to attempt to reach agreement on disclosure of the selected items, failing which they could return to the Court to resolve any remaining disputes over individual documents. As Esson J.A. noted on the appeal: 52

The trial judge considered it impractical for him to follow the course of reviewing the material privately in order to identify any of it which should be disclosed as being possibly relevant. So he made an order allowing defence counsel, but not the accused, to have access to the material. That procedure was obviously more favourable to the defence than if he [the trial judge] had examined the documents privately.

The same procedure was adopted, with similar success, during the "Air India" trial and was subsequently referred to with apparent approval by the Supreme Court of Canada in Charkaoui. 53 We recommend this approach in long complex cases where there will generally be large quantities of "marginal" materials that could possibly be relevant. It is not reasonable to expect a judge to examine these materials, document by document in court while hearing submissions from counsel. A more efficient out of court procedure is available and it should be utilized. We caution that the court must make an initial ruling as to whether the broad class of documents meets the Stinchcombe or Chaplin tests for disclosure. The court must also rule as to whether any privilege exists. Disclosure by way of an opportunity to inspect should not extend to privileged documents unless, of course, the Crown consents.

If the class of potentially relevant documents raises any confidentiality issues, then the court may order that the inspection be conducted by counsel but only on an undertaking that counsel not disclose the contents of any document. Counsel would be relieved of the undertaking once the Crown agrees to provide a photocopy of any requested document or once the Court has ruled on any disputed document. Breach of such an undertaking ordered by the Court should, of course, be regarded as very serious professional misconduct. This is the procedure that was used successfully in Guess and in the "Air India" trial and that was referred to in Charkaoui. The use of undertakings when disclosing sensitive documents was first recommended by the Supreme Court of Canada in the Ryan case. In short, there is now abundant authority supporting the practice of limited or conditional disclosure by way of a right to inspect and/or by way of undertakings of confidentiality. 54

It can be seen that there are a number of tools available to judges to shorten these long cumbersome disclosure motions and to insist that disclosure disputes be resolved early on and in an efficient manner. We have attempted to summarize all of these practical procedural tools in the following recommendation.

Recommendation 8:

Defence requests for disclosure of materials outside the investigative file should be subject to the following requirements:

  • They must be particularized in order to properly identify the files/materials in question and to explain how the files/materials could assist the defence, as required by the onus placed on the defence in Chaplin;
  • There must be a real effort by the Crown and defence to discuss the request and try to resolve it pursuant to their duties as "officers of the court" and "ministers of justice";
  • If unresolved, the defence must bring on 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 Crown 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;
  • It is generally more appropriate, after identifying the potentially relevant and non-privileged files, for the court to order that counsel obtain disclosure by an opportunity to inspect and by requesting copies of only those documents that are determined, upon inspection, to be useful to the defence;
  • If there are confidentiality concerns about any of the documents to be inspected, the court should order counsel to conduct the inspection on an undertaking that counsel not disclose the contents of any document. Counsel will only be relieved of the undertaking in relation to any particular document upon obtaining the Crown'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 very serious professional misconduct;
  • Any residual disputes about release of particular documents or parts of documents, after conducting the inspection, can be brought back to the court for a ruling.

  1. R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1 (S.C.C.); R. v. Carosella (1997), 112 C.C.C. (3d) 289 (S.C.C.).
  2. Royal Commission on the Donald Marshall Jr. Prosecution [the Marshall Report], Vol. 1, 1989 Province of Nova Scotia, at pp. 68-79 and 238-244.
  3. R. v. Dixon (1998), 122 C.C.C. (3d) 1 at 11-12 (S.C.C.).
  4. Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions [the Martin Report], Queen's Printer for Ontario, 1993 at pp. 193-195 and 264-266. The Police Services Act, RSO 1990, c. P. 15.
  5. Report of the Criminal Justice Review Committee, Queen's Printer for Ontario, 1999 at pp. 3 and 37-48.
  6. Ibid, recommendations 5.1 and 5.9. The Report notes that the relevant duties of the Solicitor General are found in s. 3(2)(b), (d) and (j), requiring that he/she develop, promote and enhance "professional police practices, standards and training" as well as issue "directives and guidelines respecting policy matters" and monitor for compliance "with prescribed standards of service." For an excellent discussion of the inherent tension between police operational independence and the Solicitor General's statutory responsibility to issue policy directives see Report of the Ipperwash Inquiry: Policy Analysis, Vol. 2 (Toronto: Ministry of the Attorney General, Queen's Printer for Ontario, 2007), at pp. 310-348.
  7. R. v. Shirose and Campbell (1999), 133 C.C.C. (3d) 257 (S.C.C.).
  8. Ibid at p. 280, quoting Lord Denning in R. v. Metropolitan Police Commissioner, Ex Parte Blackburn, [1968] 1 All E.R. 763 at 769 (C.A.). The Court did not expressly state in Shirose that these principles are "constitutional" but they certainly appear to be longstanding "constitutional conventions", if not s. 7 "principles of fundamental justice." For an excellent discussion of police independence see Report of the Ipperwash Inquiry, supra note 26.
  9. See the Martin Report, supra note 24 at pp. 120-127 for a good discussion of whether Crown screening of the file should be pre-charge or post-charge.
  10. R. v. Regan (2002), 161 C.C.C. (3d) 97 (S.C.C.). The majority in Regan, per. LeBel J. at paras. 66-68, noted the "need for a separation between police and Crown functions," based on lessons learned from "reports [such as the Marshall Report] inquiring into miscarriages of justice which have sent innocent men to jail in Canada." LeBel J. held that the "distinct line appears to be that the police, not the Crown, have the ultimate responsibility for deciding which charges should be laid." Most importantly, for our purposes, LeBel J. held that the precept of keeping police and Crown functions separate could still be followed, even though the Crown and police work much more closely and collaboratively at the pre-charge stage under modern prosecutorial protocols:
    "The protocol [utilized in Nova Scotia after the Marshall Report] encourages a police and Crown joint assessment pre-charge: there is nothing in these recommendations that indicates that the separation between police and Crown functions must be implemented by preventing Crown contact with potential witnesses pre-charge. Therefore, while the Marshall Report speaks of a distinct line between police and Crown functions, it is one that may be drawn conceptually and figuratively, through conscious practice, rather than literally by the act of laying charges."
    The Court reiterated this point in a subsequent case, Re. Application under s. 83.28 of the Criminal Code, sub. nom. R. v. Bagri (2004), 184 C.C.C. (3d) 449 at 485 (S.C.C.), where the majority referred to Regan and held that "the mere fact of their [Crown counsel's] involvement in the investigation need not compromise Crown counsel's objectivity."
  11. The best illustration of this modern evolution of pre-charge advice from the Crown in very large investigations is found in the Federal Prosecution Service Deskbook. Its policy on Mega Case Management, in Chapter 54 of the Deskbook, calls for close police/Crown collaboration in these cases in the following terms:
    "It should be emphasized that Crown counsel's role is to provide legal advice when advice is sought. This will involve advising investigative agencies as to how investigative choices will impact on any future prosecution, and may also involve asking hard questions designed to ensure the investigation remains focused. It does not, however, require Crown counsel to do the investigative agency's work … Crown counsel can offer insight as to how the choice of particular instruments (e.g. the number of accused, the type of charges, measures other than prosecution) may affect fulfillment of the plan. Where prosecutions are to proceed they must be financially and legally manageable."
    Online: http://canada.justice.gc.ca/eng/dept-min/pub/fps-sfp/fpd/ch54.html.
  12. The Royal Commission on Criminal Justice Report, 1993 Cm 2263 (HMSO 1993) at p. 72 [the Runciman Report] concluded that the Crown Prosecution Service [CPS] should not "be put in charge of police investigations" but that the police should "seek the advice of the CPS" and "this should happen more frequently than at present." Most importantly for our purposes, the Report recommended that "the cases in which it is appropriate to seek advice should include those which are serious, complex or sensitive." The CPS has implemented this recommendation as The Code for Crown Prosecutors provides that "Crown Prosecutors should provide guidance and advice to investigators throughout the investigative and prosecuting process" while noting that "the functions of the CPS and the police are different and distinct. In giving advice to the police, you must not assume the role of investigator or direct police operational procedures." The Code for Crown Prosecutors (2004). Online: http://www.cps.gov.uk/publications/docs/code2004english.pdf "CPS Relations with the Police". Online: http://www.cps.gov.uk/news/nationalnews/archive/25feb2004.html Similar developments can be seen in Australia. See Standing Committee of Attorneys-General, Report of the Working Group on Criminal Trial Procedure (Canberra: A.C.T., 1999) (Chair: Hon. Justice Brian Martin), at pp. 30-31.
  13. Krieger et al v. Law Society of Alberta (2002), 168 C.C.C. (3d) 97 at 110-111 and 114-115 (S.C.C.).
  14. Ibid at p. 110, referring with approval to R. v. Regan, supra note 30 at pp. 157-158. The majority judgment of LeBel J. in Regan did not disagree with Binnie J.'s point of law about the importance of "objectivity and independence." Indeed, LeBel J. stated, at p. 128 that both "parties agree in this case that Crown objectivity and the separation of the Crown from police functions are elements of the judicial process that must be safeguarded." LeBel J. concluded at p. 149 that "the principles of fairness and fundamental justice entitle an accused to a duty of objectivity exercised by the Crown in deciding to prosecute." Accordingly, the Court was unanimous on the constitutional requirement of Crown objectivity and independence which necessitates some degree of separation between Crown and police functions.
  15. Supra note 24 at pp. 37-39 and 113-120.
  16. The authorities cited at supra note 30 would seem to be dispositive of this point.
  17. Supra note 34. In this regard, see R. v. Trang, [2002] 7 W.W.R. 157 (Alta. Q.B.) where the Court dismissed a pre-trial motion seeking to remove Crown counsel from a prosecution where she had worked closely with the investigative team at the pre-charge stages. The Court noted (at para. 72) that during the investigation Crown counsel "provided legal advice, obtained judicial orders, and worked with the police in organizing disclosure," while working on a daily basis in the same police premises as the investigators. All of these functions relate to areas of traditional Crown advice. The Court also noted (at para. 71) that Crown counsel did not become involved in police investigative functions and did not "have any input as to which way the investigation would go or who should be targeted." In some major cases in Ontario, unlike in Trang, it is our understanding that Crown counsel do advise the police as to "which way" an investigation should go and "who should be targeted," all with a view to producing a manageable and successful prosecution. We agree that this advice is useful, and we encourage it, but it would arguably compromise the objectivity of Crown counsel in deciding, ultimately, whether a prosecution should proceed.
  18. Available Online: http://www.justice.gc.ca/eng/dept-min/pub/pmj-pej/p4.html
  19. Supra note 23.
  20. R. v. Jarvie, [2003] O.J. No. 5570 (Ont. S.C.J.) and R. v. Hallstone Products Ltd. et al (1999), 140 C.C.C. (3d) 145 (Ont. S.C.J.) are good examples of these early difficulties with electronic disclosure that was both incomplete and ineffective.
  21. R. v. Blencowe (1997), 118 C.C.C. (3d) 529 at 534-535 (O.C.-G.D.); R. v. Therrien, [2005] B.C.S.C. 592; R. v. Borges, [2005] O.J. No. 4137 (Ont. S.C.J.).
  22. Ibid at p. 539. The Martin Report made the same point (supra note 24 at pp. 191-2):
    "While the Committee recognizes that, as a practical matter, disclosure will, in most cases, be accomplished in writing, there is, in the Committee's view, no inflexible constitutional obligation to provide disclosure in this manner. As a constitutional requirement, "disclosure" retains its plain and ordinary meaning: it is not necessarily synonymous with providing copies."
  23. Supra note 6. In addition to these public reports, the Department of Justice issued a Consultation Paper titled "Disclosure Reform" in November 2004, seeking comments on a proposal to create a statutory presumption in favour of electronic disclosure. Online: http://canada.justice.gc.ca/eng/ cons/ref/ index.html.
  24. R. v. Greer et al., [2006] B.C.S.C. 1894; R. v. Piaskowski et al., [2007] 5 W.W.R. 323 (Man. Q.B.).
  25. The impetus to develop a standard "Major Case Management" investigative brief was, in part, due to the Bernardo Investigative Review conducted by Mr. Justice Archie Campbell of the Ontario Superior Court. His Report, issued in June, 1996, recommended "a standard computerized case management system" in all major cases "that have the potential to involve inter-jurisdictional investigation." He also recommended "Standard case management procedures … of the kind described in the Major Case Management Manual developed by the Canadian Police College" and "Early approval of one single uniform computerized case management system for mandatory use in all serial predator investigations." The objective of Justice Campbell's recommendations for standardized practices was to facilitate police collaboration in multi-jurisdictional investigations. However, it has also furthered the development of a comprehensive standard disclosure brief: Ontario, Bernardo Investigation Review: Report of Mr. Justice Archie Campbell, (Toronto: Ministry of the Solicitor General and Correctional Services, 1996) at pp. 338-347.
  26. Op. Cit. at para. 57.
  27. Supra note 44 at paras. 31-32.
  28. Supra note 21.
  29. The Federal Prosecution Service Deskbook policy on Mega-Case Management, supra note 31, provides a good illustration of this modern cooperative approach to disclosure:
    "The most effective way of satisfying Crown counsel's ethical obligation to make full disclosure of the Crown's case is to be involved at an early stage and continue to be involved throughout the investigation. More than any other issue, the preparation of disclosure materials requires intensive cooperation between Crown counsel and the investigative agency, such that the responsibility should be viewed as a joint one."
  30. Supra note 11
  31. R. v. Rowbotham (1988), 41 C.C.C. (3rd) 1 at 47-50 (Ont. C.A.); R.v.Shayesteh (1996), 111 C.C.C. (3rd) 225 at 248-261 (Ont. C.A.)
  32. Supra note 24 at pp. 226-229.
  33. Supra note 21 at pp. 11 and 13-14.
  34. Law Reform Commission of Canada, Trial Within a Reasonable Time, Ottawa: Canada Communication Group, Publishing, 1994 at pp. 15-23. For example, the American Bar Association (ABA) Task Force on Reduction of Litigation Cost and Delay recommended that incremental time standards be developed, reasoning that "Goals that are clear, focused, measurable and achievable are excellent motivators." Section 2.51(c) of the ABA's Standards Relating to Trial Courts implements this recommendation by stating: "Essential elements which the trial court should use to manage its cases are: by rules, conferences, or other techniques, establishment of times for conclusion of the critical steps in the litigation process, including the discovery phase." ABA Task Force, Defeating Delay: Developing and Implementing a Court Delay Reduction Program (Chicago: ABA, 1986) at 13-14. Online: http://www.abanet.org/jd/lawyersconf/pdf/Defeating-Delay-1986.pdf ABA, Judicial Administration Division, Standards Relating to Trial Courts (1992 Edition), pp. 79-80.
  35. Supra note 25, recommendation 5.4.
  36. Recommendations 22 and 23, Online: http://www.justice.gc.ca/eng/esc-cde/ecc-epd.pdf
  37. R. v. Rafael (1972), 7 C.C.C. (2nd) 325 (Ont. C.A.); R. v. B (A.R.) (1998), 128 C.C.C. (3rd) 457 (Ont. C.A.); R. v. Krause (1986), 29 C.C.C. (3rd) 385 (S.C.C.); R. v. Ghorvei (1999), 29 C.R. (5th) 102 (Ont. C.A.); R. v. Beland and Phillips (1987), 36 C.C.C. (3d) 481 at 495 (S.C.C.).
  38. R. v. Egger (1993), 82 C.C.C. (3rd) 193 (S.C.C.); R. v. Carosella, supra note 21 at pp. 308-309; R. v. Dixon, supra note 23 at pp. 17-18.
  39. Supra note 21 at pp. 7 and 12.
  40. R. v. Chaplin and Chaplin (1995), 96 C.C.C. (3rd) 225 at 227, 228 and 237 (S.C.C.)
  41. (1997), 121 C.C.C. (3d) 33 at 40-41 (Ont. C.A.).
  42. R. v. Chaplin, supra note 60 at p. 236; R. v. Toms (2003), 174 C.C.C. (3d) 87 (Ont. C.A.) conviction reversed on other grounds but ruling at trial on disclosure motion affirmed, [2000] O.J. No. 5612 (Ont. S.C.J.); R. v. Ngo et al. (2006), 39 C.R. (6th) 183 (Man. Q.B.); R. v. Dykstra (2007), 76 W.C.B. (2d) 193 (Ont. S.C.J.). In Chaplin the request was for any wiretaps in unrelated investigations, in Toms the request was for investigative files relating to the work of an undercover police agent over the previous 21 years, in Ngo the request was for records relating to over 200 motor vehicle stops carried out by the arresting officer in the previous two years and in Dykstra the request was for all police records relating to any investigations of drug smuggling by airport employees. Also see: R. v. Gateway Industries Ltd., [2004] 6 W.W.R. 329 (Man. Q.B.); R. v. Chan (2002), 50 C.R. (5th) 280 (Alta. Q.B.).
  43. Supra note 21 at p.12.
  44. The Protocol was issued by Lord Woolf on March 22, 2005. Online: http://www.judiciary.gov.uk; S. 4 (iv).
  45. Supra note 21 at p. 12.
  46. Supra note 62 at pp. 90-91. The Court of Appeal's decision in R. v. Oliver and Morrison (2005), 194 C.C.C. (3d) 92 at 100-103 (Ont. C.A.) is also important in relation to this point. The Court held that the trial judge was entitled to set a schedule for the completion of all pre-trial motions and to refuse to adjourn the trial in order to allow counsel to bring a late motion.
  47. Disclosure: A Protocol for the Control and Management of Unused Material in the Crown Court, February 20, 2006 at paragraphs 5-7 and 44. Online: http://www.hmcourts-service.co.uk.
  48. Supra note 19 at p.23.
  49. (1997), 143 DLR (4th) 1 at 15 (S.C.C.).
  50. (1995), 96 C.C.C. (3d) 318 (S.C.C.); R. v. Blencowe, supra note 41 at pp. 534-535.
  51. Supra note 24 at pp. 191-192 and 249-251.
  52. R.v.Guess (2000), 148 C.C.C. (3d) 321 (BCCA).
  53. Charkaoui et al v. Minister of Citizenship and Immigration, [2007] 1 S.C.R. 35 at para. 78. The procedures followed in the "Air India" trial are described in Michael Code, supra note 15 at pp 269-273.
  54. Ibid; M.(A.) v. Ryan, supra note 69. Most of the leading authorities on the use of undertakings are reviewed in Michael Code and Kent Roach, "The Role of the Independent Lawyer and Security Certificates" (2006), 52 C.L.Q. 85 at pp. 103-111. Also see: R. v. Blencowe, supra note 41 at pp. 542-543; The Martin Report, supra note 24 at pp. 234-235.

|