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

Preamble

The Steering Committee on Justice Efficiencies and Access to Justice (the Steering Committee) was created in 2003 by federal, provincial and territorial (FPT) Ministers responsible for Justice to recommend solutions to problems relating to the efficient and effective operation of the criminal justice system, without compromising its fundamental values. The Steering Committee brings together very senior representatives from federal and provincial governments, the judiciary, the Defence Bar and the police community. More information about the Committee and its past reports is available at: www.justice.gc.ca/eng/rp-pr/csj-sjc/esc-cde/index.html.

Twenty years after the landmark decision in Stinchcombe, problems associated with the Charter of Rights and Freedoms right to full disclosure continue to represent one of the most significant challenges facing the criminal justice system. Insufficient disclosure has been a factor in several wrongful convictions and contributes to court backlog and case delays.

The Steering Committee decided to strike a subcommittee to study systemic and practical impediments to effective disclosure and examine measures that could be taken to improve the disclosure process. As part of this work, the subcommittee reviewed the caselaw, academic literature, recent commission and inquiry reports, as well as disclosure legislation in other Commonwealth jurisdictions. The subcommittee also consulted with a wide variety of stakeholders of the criminal justice system, including a comprehensive survey of the police and intelligence community conducted under the auspices of the Law Amendments Committee of the Canadian Association of Chiefs of Police. Also, some of the subcommittee’s early findings with respect to the need for standardized prosecution briefs, disclosure timelines and electronic disclosure were discussed at, and endorsed by, the 2010 National Symposium on Criminal Justice Reform, which brought together eighty senior representatives from various sectors of the criminal justice system: judges; defence and Crown counsel; police and governments officials.

This work led to the preparation of the Report on Disclosure in Criminal Cases, attached. The Report was considered by the FPT Committee of Heads of Prosecutions in the fall of 2011 and then presented to FPT Ministers at their January 2012 meeting, who endorsed the Report and agreed to its publication. Ministers emphasized that the report is another example of the value of judges, government officials, defence lawyers, police and other justice system professionals working collaboratively to improve the effectiveness and efficiency of the justice system.

The Report focuses on "day to day" cases, rather than long and complex trials, which have been the focus of other work (e.g., the June 2010 report from the Air India Commission of Inquiry).

The following nine themes are discussed in the detailed and comprehensive Report:

  • Police and prosecution collaboration;
  • Disclosure management and responsibility;
  • The content of disclosure;
  • The timing of disclosure;
  • The manner of making disclosure;
  • Self-represented accused and disclosure;
  • Early judicial resolution of disputes;
  • Improper conduct in relation to disclosure; and
  • Disclosure codification.

The Report puts forward many operational approaches and best practices for standardizing and streamlining the disclosure process, and offers model Crown brief standards. It also endorses a number of recommendations made in other reports, such as the 2008 LeSage and Code Report in Ontario, and encourages the continuation of ongoing work in other FPT fora. It also points to a number of areas where codification of disclosure rules should be examined.

The opinions expressed in the Report are those of the members of the Steering Committee and not of the courts, ministries or organizations to which they belong. Not all members of the Steering Committee agree with all parts of the report. The overall direction of the report is, however, strongly supported by all members of the Steering Committee.

We believe you will find the Report is of much interest for, and may be of great use to, you and your organization. We encourage you to read it and to consider how the Report’s recommendations may best be implemented in your organization’s business plan, procedures, or operational practices.

April 2012

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