Disclosure Reform - Consultation Paper
It is a fundamental element of the fair and proper operation of the Canadian criminal justice system that an accused person has the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information. Relevance, in this context, has been found by the courts to mean that there is a reasonable possibility of the information being useful to the accused person in making full answer and defence. This right to disclosure flows from section 7 of the Canadian Charter of Rights and Freedoms, which provides that
“everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” The right to proper disclosure is recognized in particular under principles of fundamental justice as necessary to the accused person's ability to defend himself or herself against the charges that have beenlaid.
The main legal principles applying to the disclosure of information in criminal matters were set down by the Supreme Court of Canada in the landmark case of R. v. Stinchcombe,  3 S.C.R. 326. These rules have been elaborated and applied in numerous subsequent cases. Recently, in R. v. Taillefer; R. v. Duguay,  3 S.C.R. 307, Mr. Justice LeBel reiterated the key principles as follows:
The rules may be summarized in a few statements. The Crown must disclose all relevant information to the accused, whether inculpatory or exculpatory, subject to the exercise of the Crown's discretion to refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea… Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses… [p. 334]
The obligation to disclose “relevant” information has been construed broadly by Canadian courts. This was recognized by Mr. Justice LeBel in R. v. Taillefer; R. v. Duguay, and he went on to comment:
As the courts have defined it, the concept of relevance favours the disclosure of evidence. Little information will be exempt from the duty that is imposed on the prosecution to disclose evidence. As this Court said in Dixon, supra,"the threshold requirement for disclosure is set quite low… The Crown's duty to disclose is therefore triggered whenever there is a reasonable possibility of the information being useful to the accused in making full answer and defence"(para. 21; see also R. v. Chaplin,  1 S.C.R. 727, at paras. 26-27)."While the Crown must err on the side of inclusion, it need not produce what is clearly irrelevant"( Stinchcombe, supra, at p. 339). [pp. 334-5]
The Crown's disclosure obligation can create significant challenges. Proper disclosure requires managing vast quantities of information within the justice system. The task is further complicated by the high degree of sensitivity that is attached to certain relevant information, including privacy concerns, the need to protect victims, witnesses and informants, and the need to protect national and international government confidences.
The challenges involved in managing the sheer volume of information are highlighted most clearly in large and complex cases. Such situations frequently arise, for example, in cases related to organized crime, due to the sophistication of the criminal activities involved, as well as the sophistication of the investigation techniques. These and other types of large and complex cases can result in an obligation to deal with vast quantities of documents and other pieces of information, such as sound and video recordings. Disclosure even in small and moderately sized cases can also be a challenge for the justice system, especially in view of the number of such proceedings, and some of the proposals for disclosure reform may be of assistance in such cases as well. Issues related to the sensitivity of information and the need to prevent misuse, for example, can be of concern regardless of the size of the case.
It is important to keep in mind that information relevant to a criminal matter begins to be generated from the moment an investigation is initiated. In large and complex investigations, such as those into suspected organized crime activity, the collection of information can begin years before any trial. Preparation for disclosure therefore needs to be considered early within the course of an investigation and prosecution. Disclosure itself should be made as soon as possible after charges are laid in order to allow the accused person to make informed decisions.
Disclosure, of course, is not just a matter for the Crown in preparing for trial, but also a key concern for police during an investigation: it is a matter of joint management by police and the Crown. Investigators and prosecutors are obliged to ensure that they are organized to meet their legal obligations for proper and timely disclosure. This has sometimes been a challenge, but it is one that the Canadian justice system has addressed and will continue to address. Steps being taken to improve disclosure management in various Canadian jurisdictions include:
- information management training, including working sessions and seminars for investigators and prosecutors;
- the development and sharing of best practices;
- the development of protocols for disclosure management;
- and closer direct cooperation between investigators and prosecutors, including assigning Crown counsel to provide advice on disclosure issues during investigations.
These improvements in the practical management of disclosure information do not mean that problems are not still encountered. Meeting the disclosure obligation, especially in large and complex cases, can impose considerable burdens in human resources and costs. Difficulties in ensuring proper disclosure have led to delayed trials, and even to proceedings being stayed. Disputes over what information should be disclosed, and about the timeliness and manner of disclosure, are not uncommon, and the need for judicial resolution imposes additional costs on parties and the justice system as a whole; the result can be additional delays in having the merits of matters properly heard.
While continued improvements in the practical management of disclosure information are essential, legislative reforms may also be of assistance. Proposals for legislative reform in the area of disclosure are the focus of this consultation paper. However, it should be kept in mind that legislative reform alone cannot "solve" the overall issue of disclosure. The disclosure obligation is a substantial one, and legislative amendments cannot eliminate the practical burden of fulfilling the obligation. The proposals discussed here seek ways to implement the Charter-mandated disclosure obligation more efficiently and effectively.
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