Disclosure Reform - Consultation Paper
Disputes over disclosure issues arise frequently in the criminal process. While informal resolution of such disputes is to be encouraged, it must be recognized that judicial rulings will often be required. Delays in obtaining a judicial determination on a disclosure matter are not uncommon. These delays may arise from inability to obtain early access to a court or from the nature of motions proceedings themselves.
Proposed Legislative Response
Amendments providing for specialized court proceedings could allow disclosure motions to be heard in an expedited manner through quick access to a court and flexible proceedings before the court:
- expedited access could allow either the Crown or the defence to apply by notice of motion to an appropriate court, before a trial judge is appointed, for rulings on matters related to disclosure;
- flexible procedures could allow the court, on application from either party, to employ any manner of proceeding appropriate to the nature of the individual motion, the need to resolve the matter quickly, and any other interests of justice: specifically mentioned manners of proceeding could include proceedings by written submissions only, proceedings by oral submissions without supporting material or motion record, proceedings relying on affidavit or viva voce evidence, proceedings by telephone or video conference, proceedings in chambers, and in camera and ex parte proceedings.
In some criminal proceedings, especially large and complex matters, considerable time can be spent dealing with motions to resolve disclosure issues. These motions typically are heard only by the trial judge, and it can take some time before this judge is appointed. Further delays can result from the preparation for and hearing of disclosure motions using formal court procedures.
To address such challenges, special provisions could provide clear jurisdiction and parameters for proceedings, before a trial judge is appointed, that would allow parties to deal with all disclosure matters, including relevance, privilege, and the adequacy of the form of disclosure. Specific allowance for flexibility in proceeding could permit disclosure motions to be resolved quickly, providing the manner was appropriate to the particular motion and consistent with the interests of justice.
For this concept to provide a benefit, the decision on disclosure likely would need to have essentially the same authority as one made by the trial judge. If not, the special procedure might serve only to complicate and extend disputes, since the motions could be re-litigated at trial. Therefore, disclosure orders made in this fashion likely should be vested with full authority, with only a limited right of review by the trial judge.
It might also be advisable to provide some legislative encouragement for the parties to use the early dispute resolution mechanism for disclosure issues, rather than simply waiting for appointment of the trial judge. For example, the amendments could require a trial judge, in considering any remedy sought with respect to disclosure, to consider whether the remedy could have been sought earlier through specialized court proceedings.
While early resolution of disputes in this manner may have advantages, it could be argued that the trial judge is in the best position to rule on disclosure motions by considering them in the full context of the case. The advantages of early resolution would have to be weighed against possible disadvantages of involving a judge other than the trial judge. It should be kept in mind, however, that the proposal could allow the trial judge a residual right of review. Further, the advantage of review by the trial judge may perhaps be overstated in respect of disclosure motions, which by their nature should be resolved some time before trial and tend to involve issues that do not necessarily require knowledge of the larger context of the case. It could even be argued that there would be positive advantages, in addition to early resolution, in having a judge other than the trial judge to hear them, since it might, for example, permit parties arguing a disclosure motion to provide a full factual context without fear of compromising positions at trial. (Similar considerations apply in the context of pre-trial conferences, where a judge other than the one assigned to the trial is able to engage in frank dialogue with counsel.)
This is not to suggest that it would necessarily be appropriate to resolve all disclosure disputes by specialized early court proceedings. The judge at the specialized disclosure proceedings arguably should retain discretion to rule that a matter should be reserved for resolution by the trial judge. (This would be in addition to the trial judge's limited right to review rulings from the specialized proceedings.) Also, these proposed specialized court proceedings would not affect or provide an alternative to special proceedings that are already provided at law, such as those dealing with personal information records governed by sections 278.1-278.91 of the Criminal Code or with information in respect of which notices are given or objections are made under sections 37-39 of the Canada Evidence Act.
Implementing specialized court proceedings on disclosure might present technical challenges. It may be difficult and unproductive to isolate procedural changes for resolving disclosure disputes from other pre-trial issues. Many questions may arise in this regard. Should the proposed procedural changes be expanded to apply to pre-trial issues in addition to disclosure? How should this procedure relate to case management and pre-trial conferences? What level of court should hear such proceedings? Should the same judge presumptively hear the multiple motions that can arise in a given criminal matter? Could disclosure motions be brought by third parties in certain instances, given that disclosure rulings may sometimes involve the interests of such parties? Should disclosure motions be subject to interlocutory appeals?
Another challenge in implementing these procedural changes could be to accommodate regional differences in court practices. The proposed disclosure proceedings may present difficulties in smaller, rural, or northern communities, where there may not be flexibility of judicial resources to allow easily for the assignment of judges to be specially seized of disclosure matters. Some aspects of this proposal may therefore be better implemented through local rules of court, rather than Criminal Code amendments, in order to allow for regional variations in practice. The general matter of potential new rules of courts addressing disclosure is the subject of the next proposal in this consultation paper.
Would it be beneficial to proceed with amendments providing for specialized court proceedings to encourage early resolution of disclosure issues?
What level of court should hear such proceedings?
Should multiple disclosure motions in a given criminal matter presumptively be brought before the same judge?
Should such amendments be limited to large and complex cases?
Under what circumstances should a trial judge be able to reconsider the decisions rendered in specialized pre-trial proceedings?
Should such proceedings also be considered for pre-trial issues other than disclosure?
Should aspects of this proposal be reserved for local rules of court to allow for regional differences in court practice?
 A judge of a superior court other than a trial judge, exercising authority under subsection 24(1) of the Canadian Charter of Rights and Freedoms, can resolve such issues where constitutional rights are at stake. See, for example, R. v. Girimonte, (1997), 12 C.R. (5 th ) 332 (Ont. C.A. ); R. v. Laporte (1993), 84 C.C.C. (3d) 343 (Sask. C.A.); R. v. Blencowe (1997) 118 C.C.C. (3d) 529 (Ont. Ct. (Gen. Div.)). However, this manner of proceeding is the exception, and there is some uncertainty about when it is appropriate.
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