Disclosure Reform - Consultation Paper

Introduction

Under the Canadian Charter of Rights and Freedoms, an accused person is guaranteed the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information.

While the principle of disclosure is key to the proper functioning of our criminal justice system, the obligation can present significant challenges. The burden of managing large quantities of information can be considerable, especially in complex criminal matters, for both the Crown and the defence. Furthermore, disputes can arise over which information is relevant and over what fits within the categories of privileged information. Disputes over what information has to be disclosed, along with delays in transmitting it, can impede trials themselves, and sometimes result in proceedings being stayed due to unreasonable delay. A further area of concern is that information contained in the disclosed materials is sometimes misused.

On February 27, 2004, the Minister of Justice and Attorney General of Canada, Irwin Cotler, announced that he had asked Justice officials to develop proposals for amendments to more efficiently and effectively implement the Charter-mandated disclosure obligation. The announcement noted that amendments would be examined in the five following areas:

  • facilitating the electronic disclosure of materials to the defence;
  • reducing administrative burdens in disclosure by clarifying the core materials to be given to the defence, while ensuring the defence's right of access to all relevant information;
  • setting up specialized court proceedings to provide a way for parties to deal expeditiously with all matters pertaining to disclosure, including relevance;
  • establishing disclosure-management procedures that would clearly set out obligations relating to disclosure, including timelines;
  • addressing any improper use of disclosed materials.

The Minister also announced that specific proposals would be put forward for consultations with the legal community and the general public.

This paper is intended to facilitate consultations on the proposed areas for disclosure reform that were set out in the February 27 announcement. For each area of potential reform, a basic statement of issues is provided, together with a description of the proposals to address these issues. This is followed, in each case, by a fuller discussion of how the proposals could work to improve disclosure. Potential challenges raised by the proposals are also discussed, along with possible alternative ways of framing them to address the underlying issues. At the end of each section, specific questions are posed about the legislative proposals.

You are invited to forward your comments by February 8, 2005, to the following address: 

Disclosure Reform Consultation
Department of Justice Canada
Criminal Law Policy Section
284 Wellington Street
Ottawa, Ontario K1A 0H8

E-mail: Webadmin@justice.gc.ca
Fax: (613) 942-9310

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