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

III. Recommendations

9) Disclosure codification

A) Current Complexity

[159] The Criminal Code has always contained rudimentary disclosure provisions. Section 603 entitles the accused to inspect the indictment after committal for trial, his or her statement, the evidence and the exhibits from the preliminary inquiry and to receive, on payment of a reasonable fee, copies of the above. This provision can be traced to section 597 of the first Code in 1892. The Code also contains more recent provisions governing disclosure of records containing the personal information of complainants and witnesses in proceedings for sexual offences.Footnote 94

[160] In R. v. O’Connor,Footnote 95 McLachlin J. (as she then was) wrote that discovery in criminal cases is always a compromise between the right of an accused to a fair trial and a variety of competing considerations, including the privacy rights of third parties. Where evidence is not in the hands of the police or prosecution (e.g. unseized third party records), the obligation to preserve and disclose does not arise. But where investigators learn of relevant information in the hands of a third party, the Crown is obliged to disclose the existence and location of the evidence to the defence. McNeilFootnote 96 requires the prosecution to:

  1. make reasonable inquiries of other Crown entities and other third parties in "appropriate cases";
  2. inquire, "when the Crown is informed of potentially relevant information pertaining to the credibility or reliability of the witnesses in a case"; and
  3. request from the police any material relating to police misconduct by officers connected to the case.

The police have a concomitant duty to provide to the prosecution the information referred to above if it is in their possession.

[161] O’Connor established a general common law mechanism for ordering production of any record beyond the possession or control of the prosecutor. This mechanism is not limited to cases where third party records attract a reasonable expectation of privacy. Parliament responded to O’Connor by enacting a statutory regime for the disclosure of records containing personal information of complainants and witnesses in proceedings for sexual offences This statutory regime constitutes an exception to the common law Stinchcombe regime.Footnote 97 Consequently, disclosure of third party records is not governed by a single test.

B) National Standards

[162] The Martin Report recommended that the Attorney General of Ontario issue a comprehensive directive setting out the purpose and general principles of disclosure, the specific requirements of full disclosure, and how disclosure was to be implemented. It also provided a draft disclosure directive. Ontario adopted these recommendations and issued an updated directive. Many other Canadian jurisdictions followed suit. But directives issued by Attorneys General only bind their agents. They do not have mandatory effect across the justice sector. This can give rise to confusion and disputes.

[163] The constitutional right to disclosure is a common law child of the Charter. With the exception of a few specific Code provisions referred to above, disclosure law does not rest on a statutory foundation. Consequently, disclosure issues are resolved on a case-by-case basis and the law has been shaped by the views of individual judges. The police community, in particular, believes that standardizing the content of disclosure would reduce disclosure disputes, facilitate timely preparation of disclosure and create greater certainty in the law concerning the legal requirements of disclosure. It was suggested to us that these benefits would best be achieved through placing disclosure on a statutory foundation.

[164] Should Canada follow the lead of other jurisdictions and adopt a comprehensive statutory disclosure regime? Supporters of legislated disclosure obligations argue that legislation would provide clear guidance to all involved in the disclosure process. Fewer cases would collapse because of unexpected judicial rulings. Electronic disclosure, a necessity from the police perspective because of the efficiency savings it brings, could be made mandatory. Other participants in the justice system are not so certain. They point out because Parliament did not take a leadership role in creating the right to disclosure, judges have developed the contours of the right. There is a serious risk that new legislation would do little more than codify existing case law while opening up basic issues for re-argument. New legislation tends to spawn litigation over statutory interpretation. Moreover, the legislative process is not conducive to establishing detailed operational instructions and legislative amendment is unwieldy.

[165] Justice Sopinka noted in Stinchcombe that there are ways short of legislation to establish a uniform disclosure regime. Section 482 of the Criminal Code provides courts with broad rule-making authority. Rules made under this section are published in the Canada Gazette. Under subsection 482(5) of the Code, the Governor in Council can provide for uniformity of rules. And any such uniform rules have authority as if enacted under the Criminal Code. Justice Sopinka described this rule-making authority as "under-utilized."

[166] In 2004 Justice Canada circulated a consultation document noting that a collaborative initiative could be undertaken to develop detailed model rules of court "to address disclosure management issues". Individual courts, at their discretion, could adopt these rules under section 482 of the Code. Certain of the model rules could then be established as uniform national rules under the specific authority of subsection 482(5) of the Code. Other rules could serve as general models for local rules of court. This would encourage individual courts to develop similar rules allowing for local variations.

[167] The 2004 Justice Canada document does not take a final position on the value of detailed disclosure-management rules. It points out that disclosure management procedures in many jurisdictions are already subject to guidelines, protocols and best practices manuals and asks whether further clarification through formal, detailed rules would improve the situation. The document suggests such rules may not be sufficiently flexible to meet the varied circumstances and types of materials arising in different cases and "might even become the source of further disputes and delays as parties litigate the rules and exceptions to them."

[168] While certain aspects of disclosure will vary by region or by case, the basic foundation is common to all Canadian jurisdictions. National standards with a flexible structure are feasible and they make sense for a variety of reasons. The RCMP is a national organization which works with most prosecution services in the country to varying degrees. The RCMP uses national electronic tools, (e.g., PROS, E&RIII, etc.), which could incorporate national standards. National standards would provide a foundation for training and information-sharing, particularly for investigators who move from jurisdiction to jurisdiction. Prosecutorial participation in the development of national standards could serve to lessen the inevitable growing pains involved in moving from paper-based to electronic disclosure packages.

Specific Recommendations

9.1 Justice Canada should continue its collaborative initiative to examine codification of the law of disclosure. Consideration should be given to whether there are better ways to address Canada’s disclosure problems. Specific issues the initiative should address include:

  1. providing judges in addition to the trial judge with authority to make early disclosure decisions;
  2. summary conviction proceedings;
  3. disclosure timelines;
  4. electronic disclosure;
  5. disclosure by access and inspection; and
  6. disclosure issues relating to prosecutions involving sensitive information relating to national security, national defence or international affairs.