Part V PROCEEDINGS AT TRIAL AND ON APPEAL Chapter 18

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Table of Contents


18 DISCLOSURE

18.1 Introduction

In the leading case on the Crown’s disclosure obligations, R. v. StinchcombeFootnote 1, the following was accepted as a correct statement of the law:

... there is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it.

The judgment went on to note that the obligation is not absolute, but is subject to Crown counsel’s discretion with respect to both the timing of disclosure and withholding information for valid purposes, such as the protection of police informers. The obligation is also subject to the limitation that the accused has no right to information that would distort the truth-seeking processFootnote 2. This policy seeks to describe Crown counsel’s responsibilities with respect to disclosure.

18.2 Statement of Policy

Counsel appearing for the Attorney General of Canada in a criminal matter shall, on request, disclose to the accused, or counsel for the accused, the evidence on which the Crown intends to rely at trial as well as any information which may assist the accused, whether intended to be adduced or not.

In all cases, whether a request has been received or not, Crown counsel shall disclose any information tending to show that the accused may not have committed the offence charged. With respect to this narrow category of disclosure, the obligation is a mandatory one, and is not subject to the exceptions set out in section 18.5.

The purpose of disclosure is two-fold:

  1. to ensure that the accused knows the case to be met, and is able to make full answer and defence; and
  2. to encourage the resolution of facts in issue including, where appropriate, the entering of guilty pleas at an early stage in the proceedings.

The information to be disclosed need not qualify as evidence, i.e., pass all of the tests concerning admissibilityFootnote 3. It is sufficient if the information is relevant, reliable and not subject to some form of privilege. Second-hand information that is unconfirmed may or may not be disclosed, depending on counsel's assessment of the issues in the case.

Information “which may assist the accused” is not always easily recognizable. It is difficult to provide “bright line” guidelines respecting disclosure of the “unused” side of the Crown's file. Counsel are expected to exercise good judgment and consult with senior managing lawyers in assessing what should and what need not be disclosed. The purpose of this requirement is to avoid a miscarriage of justice on the basis of non-disclosure of helpful information. The key question is relevance and “while the Crown must err on the side of inclusion, it need not produce what is clearly irrelevantFootnote 4 .

This policy assumes that the accused is before a court in Canada charged with an offence in a domestic criminal proceeding.Footnote 5 If charges were laid but the accused fled Canada or for some other reason is not before a Canadian court, there is no obligation to provide full disclosure. It may, however, be appropriate to provide counsel with a brief summary of the case. Where an accused absconds during a preliminary hearing or trial, and the hearing is continued in his absence pursuant to ss. 475 and 544 of the Criminal Code, the obligation to make disclosure to his counsel continues if counsel continues to act.

Subject to the exceptions outlined in s. 18.5, Crown counsel has a continuing obligation to disclose in accordance with this policy, the evidence on which the Crown intends to rely at trial, and any information which may assist the accused, whether intended to be adduced or not. This obligation relates to information that comes to the attention of or into the possession of Crown counsel and continues after conviction, including after appeals have been decided or the time of appeal has elapsed.Footnote 6

18.3 Inclusions

On receiving a request, Crown counsel shall, as soon as reasonably practicableFootnote 7, provide disclosure in accordance with the principles outlined in ss. 18.1, 18.2 and 18.3. In most cases, this will mean that the defence will be given at least the followingFootnote 8:

18.3.1 Charging Document

A copy of the information or indictmentFootnote 9;

18.3.2 Particulars of the Offence

ParticularsFootnote 10 of the circumstances surrounding the offence;

18.3.3 Witness Statements

Copies of the textFootnote 11of all written statements concerning the offence which have been made by a person with relevant information to giveFootnote 12; where the person has not provided a written statement, a copy or transcriptionFootnote 13 of any notes that were taken by investigators when interviewing the witness; if there are no notes, a “will-say” or summary of the anticipated evidence of the witnessFootnote 14. This requirement includes statements provided by persons whether or not Crown counsel proposes to call them as witnesses;

18.3.4 Audio/Video Evidence Statements by Witnesses

An appropriate opportunityFootnote 15to view and listen to, in private, the original or a copy of any audio or video recording of any statements made by a witness other than the accused to a person in authorityFootnote 16. This does not preclude Crown counsel, in his or her discretion, from providing copies of any video or audio recording or a transcript, where available and appropriate, but only after obtaining appropriate undertakingsFootnote 17 that take into account any privacy interestsFootnote 18. Where defence counsel is unwilling to accept the terms and conditions of an appropriate undertaking, Crown counsel should apply to the trial judge for directions;

18.3.5 Statements by the Accused

A copy of all written, audio or video recorded statements concerning the offence which have been made by the accused to a person in authority; in the case of oral statements, a verbatim account, where available, including any notes of the statement taken by investigators during the interview; if a verbatim account is not available, an account or description of the statement (whether the statement, in whatever form, is intended to be adduced or not); and a reasonable opportunity to view and listen to, any original audio or video recorded statement of the accused to a person in authority. Copies of all such statements or access thereto should be provided whether or not they are intended to be relied upon by the CrownFootnote 19;

18.3.6 Accused's Criminal Record

Particulars of the accused's and any co-accused’s criminal recordFootnote 20;

18.3.7 Expert Witness Reports

As soon as available, copies of all expert witness reportsFootnote 21 in the possession of Crown counsel relating to the offence, except to the extent that they may contain clearly irrelevant or privileged information. Expert reports relating to the offence should be disclosed, whether helpful to the Crown or notFootnote 22. Counsel should pay close attention to the provisions in s.657.3 of the Criminal Code, which require notice to be given where an expert is to be called as a witness at trial;

18.3.8 Documentary and Other Evidence

Where reasonably capable of reproduction, copies of all documents, photographs, audio or video recordings of anything other than a statement of a person, that Crown counsel intends to introduce into evidence during the case-in-chief for the prosecutionFootnote 23. Where there exists a reasonable privacy or security interest of any victim(s) or witness(es) that cannot be satisfied by an appropriate undertaking from defence counsel, Crown counsel should seek directions from the trial judgeFootnote 24;

18.3.9 Exhibits

An appropriate opportunityFootnote 25to inspect any case exhibitsFootnote 26, i.e., items seized or acquired during the investigation of the offence which are relevant to the charges against the accused, whether or not Crown counsel intends to introduce them as exhibitsFootnote 27;

18.3.10 Search Warrants

A copy of any search warrant relied on by the Crown and, subject to the limitations in s. 18.5.Footnote 28, the information in support unless it has been sealed pursuant to a court orderFootnote 29, and a list of the items seized thereunder, if any;

18.3.11 Authorizations to Intercept Private Communications

If intercepted private communications will be tendered, a copy of the judicial authorization or written consent under which the private communications were interceptedFootnote 30;

18.3.12 Similar Fact Evidence

Particulars of similar fact evidence that Crown counsel intends to rely on at trialFootnote 31;

18.3.13 Identification Evidence

Particulars of any procedures used outside court to identify the accusedFootnote 32;

18.3.14 Witnesses' Criminal Records

Upon request, information regarding criminal recordsFootnote 33 of material Crown or defence witnesses that is relevant to credibilityFootnote 34. There is no obligation to do a criminal record check on all Crown witnessesFootnote 35. Special care must be taken with police agents and other potentially disreputable witnesses, particularly foreign ones. A reliable copyFootnote 36 of the person's criminal record, and relevant informationFootnote 37 relating to any outstanding criminal charges against the witness, must be disclosed. Crown counsel must request such information in writing from the relevant police authorityFootnote 38 and place the letter and response on the file. Such information should be adduced by the Crown in the examination-in-chief of the witness.

If, at any point in the proceedings, it becomes apparent that the complete criminal record or the relevant information on outstanding charges was not disclosed, or the witness did not testify truthfully about those matters, defence counsel must be advised and Crown counsel must make immediate efforts to determine the reasons for the non-disclosure or misleading disclosure. Such efforts will include a written request for an explanation to the police officer “handling” the witness and his or her superior officer, and a request that the witness and “handler” be made available to testify on the issue, should the need arise.

18.3.15 Material Relevant to the Case-in-Chief

Particulars of any other evidence on which Crown counsel intends to rely at trial;

18.3.16 Impeachment Material

Any information in the possession of Crown counsel which the defence may use to impeach the credibility of a Crown witness in respect of the facts in issue in the caseFootnote 39;

18.3.17 Information Obtained During Witness InterviewsFootnote 40

Crown counsel has an obligation to disclose any additional relevant information received from a Crown witness during an interview conducted by Crown counsel in preparation for trialFootnote 41. Additional relevant information includes information inconsistent with any prior statement(s) provided to the investigative agency, i.e., recantations. Such information should be promptly disclosed to the defence or an unrepresented accused, subject to any limitations contemplated by s. 18.5. To avoid the possibility of Crown counsel being called as a witness, interviews should be conducted in the presence of a police officer or other appropriate third person, where practical to do soFootnote 42;

18.3.18 Other Material

Additional disclosure beyond that outlined in ss. 18.3.1 to 18.3.17 may be made at the discretion of Crown counselFootnote 43. In exercising this discretion, Crown counsel shall balance the principle of fair and full disclosure, described in ss. 18.1 and 18.2, with the need, in appropriate circumstances, to limit the extent of disclosure, as outlined in s. 18.5.

18.4 Exceptional Situations

18.4.1 Third Party Information

Information in the possession of third parties such as boards, social agencies, other government departmentsFootnote 44, rape crisis centres, women’s shelters, doctors’ offices and mental health and counselling services, is not in the possessionFootnote 45 of Crown counsel or the investigative agency for disclosure purposesFootnote 46. Where Crown counsel receives a request for information not in their possession or the possession of the investigative agency, the defence should be so advised in a timely manner in order that they may take such steps to obtain the information as they see fit. Even where such records are physically in the possession of the Crown, disclosure is not automatic. Unless the person to whom the information pertains has waived his or her rights, that person still has a privacy interest in the recordsFootnote 47.

18.4.2 Protecting Witnesses Against Inteference

If the defence seeks information concerning the identity or location of a witness, four considerations are pre-eminent: First, the right of an accused to a fair trial and to make full answer and defence; second, the principle that there is no property in a witnessFootnote 48; third, the right of a witness to privacy and to be left alone until required by subpoena to testify in court; fourth, the need for the criminal justice system to prevent intimidation or harassment of witnesses or their families, danger to their lives or safety, or other interference with the administration of justiceFootnote 49.

18.4.2.1 Consent release of information by person at risk

Where the witness does not object to the release of this information, and there exists no reasonable basis to believe that the disclosure will lead to interference with the witness or with the administration of justice as described above, the information may be provided to the accused without court order.

18.4.2.2 Witnesses refusing to be interviewed

Where a witness does not wish to be interviewed by or on behalf of an accusedFootnote 50, or where there is a reasonable basis to believe that the fourth consideration referred to above (interference with witnesses or their families, etc.) may arise on the facts of the caseFootnote 51, Crown counsel may reserve information concerning the identity or location of the witness unless a court of competent jurisdiction orders its disclosureFootnote 52.

18.4.2.3 Controlled interviews

Where a witness is willing to be interviewed, but there nonetheless exists a reasonable basis to believe that the disclosure of information concerning the identity or location of the witness may lead to interference with the witness or with the administration of justice as described above, including situations where the witness is under a Witness Protection Program, Crown counsel may decide to arrange for an interview by defence counsel at a location and under circumstances that will ensure the continued protection of the witnessFootnote 53. If the witness is protected under a Witness Protection Program, the agreement of the police agency administering the program will be required.

18.4.3 Unrepresented AccusedFootnote 54

If the accused is not represented by counsel, Crown counsel shall arrange to have the accused informed that disclosure is available under this policyFootnote 55, and shall determine how disclosure can best be provided. The accused should be advised of the right to disclosure and how to obtain it as soon as he or she indicates an intention to proceed unrepresented. Because of the need to maintain an arms-length relationship with the accused, it will in most instances be preferable to give the accused disclosure in writing.

This requirement does not preclude a guilty plea without disclosure, including situations where the accused simply wishes to dispose of the charge as quickly as possible. In other words, disclosure does not form a condition precedent to the entry of a guilty plea. However, an unrepresented accused must clearly indicate that he or she does not wish disclosure before a guilty plea is entered.

If an unrepresented accused indicates an intention to plead guilty to an offence for which there will likely be a significant jail term, counsel should suggest to the presiding judge that an adjournment may be in order to permit disclosure to the accused. However, that is not required as a matter of law and much will depend on the circumstances of each case, including whether the accused is in custody.

An unrepresented accused is entitled to the same disclosure as a represented accused. However, the precise means by which disclosure is provided to an unrepresented accused is left to the discretion of Crown counsel based on the facts of the case. If there are reasonable grounds for concern that leaving disclosure materials with an unrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counsel may provide disclosure by means of controlled and supervised, yet adequate and private, access to the disclosure materials. Special care may be required where an unrepresented accused personally seeks access to evidence where the integrity of that evidence may be placed in issue at trial, e.g., the drug exhibit, taped private communications, etc.

Special care may also be required where an unrepresented accused is incarcerated. Incarcerated unrepresented accused persons are entitled to adequate and private access to disclosure materials under the control and supervision of custodial officialsFootnote 56.

Counsel should consider, where disclosure is made to an unrepresented accused, the inclusion of a written explanation of the appropriate uses and limits upon the use of disclosure material.

It is generally a good practice to place an endorsement on the file concerning the nature, extent and timing of disclosure to an unrepresented accused. This is especially important given the prospects of a Stinchcombe review of the decisions made by Crown counsel on the issue of disclosure.

18.5 Exclusions

The Crown’s obligation to disclose is not absolute: only relevant information need be disclosed, and a withholding of information which is relevant to the defence may be justified on the basis of the existence of a legal privilegeFootnote 57.

Where Crown counsel decides not to disclose information, defence counsel should be advised of the refusal, the basis of the refusal (i.e., type of privilege alleged) and the general nature of the information withheld to the extent possible. However, in some circumstances, even the acknowledgement that information exists (i.e., information related to international relations, national defence or security or information regarding a police informer or an ongoing police investigation) would be injurious to the information sought to be protected. In such circumstances, counsel are expected to exercise good judgment and consult with senior managing lawyers to assess what is an appropriate course of action on a case-by-case basis.

Where disclosure of information is delayed to protect the safety or security of witnesses pursuant to s. 18.4.2 above or to complete an investigation pursuant to s. 18.5.3, Crown counsel must disclose the information as soon as the justification for the delay in disclosure no longer exists. The fact that some disclosure is being delayed should be communicated to the defence without jeopardizing the reason for the delay.

18.5.1 Reply Evidence

Pre-trial disclosure is not required of reply evidence tendered by the Crown in response to issues raised by the accused at trial, where the relevance of that evidence first becomes apparent during the course of the trial itselfFootnote 58. However, during trial, Crown counsel must disclose any undisclosed information in Crown counsel’s possession, as soon as reasonably possible after it becomes apparent that the information is relevant.

For example, Crown counsel is not generally required to disclose evidence in his or her possession regarding the accused’s bad character. However, if the accused indicates that reliance will be placed on good character evidence in support of the defence advanced and the Crown becomes aware of information either rebutting or confirming the defence, the information must be promptly disclosed to the defenceFootnote 59. There is a general obligation to disclose any relevant information resulting from an investigation prompted by an accused’s pre-trial disclosure of a defence.

18.5.2 Police Informers

Disclosure is not required of information that may tend to identify a confidential police informerFootnote 60. The Crown, (like the Court) is under an obligation to protect the identity of a confidential police informer. This obligation is not limited to protecting the name of the informer: it extends to any information that may tend to reveal the person who provided information to the policeFootnote 61. The police informer privilege is subject to only one exception: where the information is needed to establish the innocence of the accusedFootnote 62.

18.5.3 On-going Investigations

Information that may prejudice an ongoing police investigation should not be disclosed. It is important to note that the Crown may delay disclosure for this purpose but cannot refuse it, i.e., withhold disclosure for an indefinite periodFootnote 63. Any delays in disclosure to complete an investigation should, however, be rare.

18.5.4 Investigative Techniques

Information that may reveal confidential investigative techniques used by the police is generally protected from disclosureFootnote 64.

18.5.5 Cabinet Confidences

Information that may be considered a confidence of the Queen's Privy Council for Canada such as Cabinet documents, communications between Ministers of the Crown and other documents described in s. 39(2) of the Canada Evidence ActFootnote 65 must be protected.

18.5.6 International Relations/National Security

Information cannot lawfully be disclosed that would be “injurious to international relations or national defence or securityFootnote 66.

18.5.7 Solicitor-client Privilege

Information protected by solicitor-client privilegeFootnote 67 is not subject to disclosure.

18.5.8 Work Product PrivilegeFootnote 68

This privilege protects information or documents obtained or prepared for the purpose of litigation, either anticipated or actual. Thus, Crown counsel generally need not disclose any internal notes, memoranda, correspondence or other materials generated by the Crown in preparation of the case for trial unless the work product contains “material inconsistencies or additional facts not already disclosed to the defenceFootnote 69.” As a general rule, work product applies to matters of opinion as opposed to matters of factFootnote 70. This privilege does not exempt disclosure of medical, scientific, and other experts’ reportsFootnote 71.

18.6 Disclosure Costs

An accused person or his or her counsel shall not be charged a fee for “basic disclosure” materialsFootnote 72.

Basic disclosure” materials includes the Crown brief, if one has been prepared, and copies of documents, photographs, etc. that Crown counsel intends to introduce as exhibits in the Crown’s case. In a simple case, e.g., impaired driving, where no Crown brief has been prepared, basic disclosure will consist of copies of witness statements, a synopsis, the information, an occurrence report, or an alcohol influence report and blood alcohol certificateFootnote 73.

Each accused is entitled to one copy of “basic disclosure” materials. Where an accused person requests an additional copy or copies (e.g., because the original materials have been lost), the accused may be charged a reasonable fee for this serviceFootnote 74.

Costs associated with the preparation of copies of materials that are not part of “basic disclosure”, e.g., photographs that will not be introduced as exhibits by Crown counsel, should be considered on a case-by-case basis. In instances of unfocused or unreasonable requests involving substantial numbers of documents, it may be appropriate to shift the resource burden to the defence, by requiring that the costs be borne by the accusedFootnote 75. Failing agreement, simple access without copies may be provided.

18.7 Form of DisclosureFootnote 76

Crown counsel may provide the defence with copies of documents that fall within the scope of “basic disclosure” materials as defined in s. 18.6 in either a paper format (e.g., photocopies) or an electronic format (e.g., by CD-ROM)Footnote 77. Where the accused is unrepresented, Crown counsel should generally provide copies of such documents in a paper formatFootnote 78.

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