Classic Precedents:  Crown Disclosure

Order for Disclosure to Self-Represented Client

In this case the Crown provided disclosure before trial to Gerald Muirhead's attorney on a trust condition that the materials may not go outside the office of the lawyer, nor be viewed by anyone except the lawyer or a member of the lawyer's firm.

The trial found Mr. Muirhead guilty. Without a lawyer, he decided to appeal. To prepare his grounds of appeal he required the Disclosure (such as witness statements). The Crown granted that request, with the caveat there should be a chambers order protecting the privacy of witnesses who had provided police statements. The order said:

Muirhead Order

This case fundamentally changed the criminal justice system in Saskatchewan. Now all self-represented clients may obtain a copy of the Crown's exhibits, witness reports, and other case materials. The client appears before a Judge and requests a Muirhead Order for Disclosure whose rules derive from the above precedent R. v. Muirhead (1995) SKCA.

The Judge and client jointly sign the Order. If the client abides by the strict rules for non-publication, then the Order should open the door to installments and updates of material as the case proceeds, as required by the PPSC Deskbook.

Each Canadian province grants an unrepresented accused the same right, though the format differs slightly by region.

Duty to Disclose by Crown and Police

In Krieger the Supreme Court ruled: The disclosure of relevant evidence is not a matter of prosecutorial discretion, but rather a legal duty. Transgression related to this duty constitutes a very serious breach of legal ethics.

Crown prosecutors must be members of the Law Society of their province, and thus are bound by the Law Society's code of professional conduct. For the Crown, all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process.

Right to Make Full Answer and Defence

In Taillefer the Supreme Court of Canada ruled: The Crown must disclose all relevant information to an accused, whether inculpatory or exculpatory, unless the information is privileged or plainly irrelevant. This constitutional right is protected by section 7 of the Canadian Charter.

The Supreme Court added: A review of the case law confirms that the duty (to disclose) existed prior to the Stinchcombe decision. It was a component of the accused's right to make full answer and defence. The duty arises naturally from the Crown attorney's role as an officer of the court in our criminal justice system.

Disclose Both Inculpatory and Exculpatory Evidence

In Stinchcombe the Supreme Courtarticulated in depth the right of disclosure:

The fruits of the investigation are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done.

Initial disclosure should occur before the election or plea. All relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, regardless of whether it is inculpatory or exculpatory. All statements should be produced, even if (the person providing it) will not be a Crown witness. Where statements do not exist, other information such as notes should be produced. If there are no notes, all relevant information in the Crown's possession should be supplied.

The obligation to disclose is triggered by a request by the accused. Such a request may be made at any time after the charge. Provided the disclosure request has been timely, it should be complied with so as to enable the accused sufficient time before election or plea to consider the information.

The obligation to disclose is a continuing one. At the earliest opportunity the accused must bring to the Judge's attention any failure of the Crown to comply with its duty to disclose.

Crucial Steps that Affect a Defendant’s Rights

The Canadian Supreme Court continued to affirm the principles of Stinchcombe, which became the ‘go-to’ precedent that defendants and judges – both – relied upon when battling the Crown for disclosure unfairly withheld. In Egger the Supreme court ruled: One measure of the relevance of information in the Crown's hands is its usefulness to the defence. If it is of some use, it is relevant and should be disclosed.

Regarding the timing of disclosure: Initial disclosure should occur before the accused is called upon to elect the mode of trial or to enter a plea (‘guilty’ or ‘not guilty’). These are crucial steps which affect the accused's rights in a fundamental way.

This reasoning extends beyond the election and plea. It applies across the board to any situation where the accused is expected to take steps which affect his or her right to make full answer and defence.

Right of Disclosure Becomes Settled Law

By the late 1990s in Canada, the right to disclosure was settled law. Girimonte ruled:

[15]   The Crown's disclosure obligation is firmly established. The Crown must disclose to the defendant all information under its control, whether inculpatory or exculpatory, unless the information is clearly irrelevant or subject to some privilege to justify refusal. Information is deemed relevant if there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence.

[16]   The accused's right to disclosure is a principle of fundamental justice. The Crown's failure to meet its disclosure obligations results in a breach of an accused's rights under section 7 of the Charter and entitles the accused to an “appropriate and just” remedy under section 24(1) of the Charter.

[17]   The Crown's obligation to disclose is triggered by a request from the accused or his attorney. Initial disclosure must occur before the accused is called upon to elect or plead. The Crown's obligation to disclose is an ongoing one.

[18]   The Crown must exercise the utmost good faith and be guided by the spirit and the letter of Stinchcombe. Where the circumstances require, a Judge of the superior court may, under the authority of s. 24(1) of the Charter, review the adequacy of the disclosure provided by the Crown. If this does not meet Stinchcombe standards, the court can then require the Crown to provide what is missing.

[40]   While CCC Part XVIIICanadian Criminal Code, Part XVIII sets the rules for Procedure on Preliminary Inquiry does not give a Justice the power to review Crown disclosure decisions, this does not diminish in any way the Crown's obligation to provide timely disclosure, nor diminish the valuable role that a Justice may play in resolving disclosure disputes at an early point in the proceedings. The Crown must make full disclosure as soon as is reasonably possible. An accused's decision to have a Preliminary Inquiry is no excuse for either delaying or curtailing disclosure.
[Excerpt from: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions.]

[41]   Judicial ‘pre-trials’ in the Provincial Division afford an excellent opportunity for counsel to solicit the assistance of a Judge in resolving contentious disclosure issues. The experience and expertise of a pre-trial Judge can prove invaluable in resolving disclosure disputes in a manner which ensures compliance with Stinchcombe and avoid unnecessary delay and protracted Preliminary Inquiries.

Discovery Aspect of a Preliminary Hearing

This precedent guarantees the discovery aspect of a Preliminary Hearing. In Skogman the Supreme Court said:

A Preliminary Hearing has two aspects. Its primary purpose, of course, is to ascertain whether or not there is sufficient evidence to warrant the accused being placed on trial. But from the point of view of defence counsel, the Preliminary Hearing has another aspect. It affords counsel an opportunity of ascertaining the nature and the strength of the case against his client and it may be likened in that respect to an Examination for Discovery.

In the course of a Preliminary Hearing, evidence may be adduced through witnesses, exhibits, or admissions. The purpose of adducing evidence is to enable the Judge to exercise his jurisdiction by making determinations of fact, applying the law to those facts, and finally, to exercise his discretion to commit or discharge the accused.

When Exculpatory Evidence Goes Missing

In Carosella the Supreme Court set the penalty for infringing the right of disclosure. The SCC warned: Dismissal of an indictment is warranted if the missing evidence possesses an exculpatory value that was apparent before the evidence was destroyed.

It is clear that if the Crown fails to preserve “material exculpatory evidence,” then criminal charges must be dismissed. However, the court does not impose on the police an undifferentiated and absolute duty to retain and to preserve all documents and items that might be of conceivable evidentiary significance in a particular prosecution.

Due process requires that an accused person in a criminal case be afforded a meaningful opportunity to present a complete defense. The defendant must demonstrate prejudice as a result of the loss of evidence … and bad faith as well.

Incomplete Disclosure:  Abuse of Process

In Ahluwalia the Ontario Appeal Court dealt with abuse of process. The case summary and judicial arguments:

[65]   Testimony of a significant witness was false. That testimony coincided exactly with the incomplete disclosure the Crown provided to the defence.

[66]   The close correspondence between the witness's perjury, and the incomplete disclosure provided to the defence, is what makes the fresh evidence so troubling.

[67]   One answer to these questions is that the witness was aware that an incomplete version had been disclosed to the defence and he believed he could perjure himself without fear of being confronted. If those responsible for providing full disclosure deliberately failed to do so, and knew the witness tailored his evidence to fit the incomplete disclosure, then the integrity of the entire investigation would be in doubt.

[70]   I would think that the Crown would have recognized that the information provided to them by the defence raised serious questions about the integrity of the prosecution, and would have launched a thorough investigation aimed at finding out exactly what had happened.

[71]   The Crown does not appear to have regarded itself as under any obligation to get to the bottom of this matter.

[72]   The Crown has obligations to the administration of justice that do not burden other litigants. The Crown did not fulfill its obligation by acknowledging the incomplete disclosure, and after making limited inquiries, professing neither a responsibility for the incomplete disclosure, nor an ability to provide any explanation for it. The Crown owed both the appellant and the court a fuller explanation than it chose to provide.

[74]   Abuse of process arguments may well be open.

Releasing Records of Police Misconduct

Police misconduct, whether disciplinary or criminal, has a realistic bearing on the credibility and reliability of the officer's evidence and testimony in court.  The accused's right to obtain all relevant material held by the Crown will generally – but not always – outweigh any residual privacy interest held by third parties.

This disclosure obligation accords with police codes of conduct enacted in many cities and towns across Canada. The Crown and the defence are not adverse in interest in discovering the existence of an unreliable or unethical police officer.

First-Party Records

Records relating to serious misconduct of a police officer involved in the investigation against the accused fall within the scope of the ‘first party’ disclosure package under Stinchcombe if either: the police misconduct is related to the investigation; or the finding of misconduct could reasonably impact on the case against the accused.

Stinchcombe does not demand the absence of any residual expectation of privacy, but rather the following two assumptions: (1) The material held by the Crown is relevant to the accused's case; otherwise, the Crown would not have obtained it. (2) The material will likely comprise the case against the accused.

When police misconduct is part of the same incident which led to arrest of the accused, the duty to disclose is self-evident. More than that, police misconduct that bears in any way on the case against the accused must be disclosed. If the misconduct is not directly related to the investigation, it may nonetheless be relevant to the accused's case, and should be disclosed. Criminal records for perjury of a civilian witness are relevant to the accused and should form part of the ‘first party’ disclosure package.

Third-Party Records

Police misconduct records outside the scope of Stinchcombe are governed by the O’Connor regime for ‘third party’ production, which requires a reasonable possibility that the records are logically probative to an issue at trial, or else impeach a witness's credibility to testify.

What happens if the defence cannot specify the documents? What if the defence has not seen them, or knows not they exist? We have a Catch-22: Unless the unethical police officer is notorious or the defence personally knows details of the officer's file, the defence must embark on a fishing expedition; the presiding Judge will reject this; access will be denied.

The Crown itself may be in the dark. Regarding police misconduct records, the Crown seldom receives for disclosure analysis anything short of a criminal conviction. Internal Affairs findings or dishonesty findings are frequently sealed or stay under the radar.

The Ferguson Report

Stung by the sponsorship scandal, Toronto Police Chief George Ferguson commissioned a review of “when, in what manner, and under what circumstances the Police Service must notify the Crown of alleged or proven acts of police misconduct.” The resulting Ferguson Report (2003) recommended automatic disclosure by the police upon request by the Crown of the following acts by a member of the Toronto Police Service who may be a witness or who is otherwise involved in a case before the court:

The Ferguson Report added: The Crown may act as gate-keeper, sorting out which misconduct records, if any, to turn over to the defence. Any concerned police officer can be notified in writing and given the opportunity to make submissions to the Crown.