Pro Se Litigant
Disclosure is a copy of evidence the Crown and police have collected to prosecute your case. A self-represented client should be given this minimum:
There should be a paper Report from each and every member of the police team who searched your home, for example. Treat a lack as a red flag. Start your own inquiry, sooner rather than later.
Legal Aid clinics say: The Disclosure portrays the Crown's version of events, as authored by police. You may or may not agree that things happened the way the Synopsis or the Reports claim. The package is the evidence gathered by police and it may not include your side of the story.
In civil lawsuits where money and property, but not freedom, was at stake, Canada had a full and generous disclosure or discovery regimen. But in criminal cases, disclosure was almost entirely discretionary – even though the accused had his liberty at stake, and even his life in the days of capital punishment.
Disclosure decisions were governed by the whim of Crown counsel. Moreover, decisions were shaped by a presumption of guilt, that an accused person “could not and should not be given disclosure because he would use it to fabricate evidence and suborn perjury.”
If the defence attorney was so fortunate as to obtain some disclosure, stringent conditions were imposed, such as having to promise that witness statements would not be used to cross-examine the witnesses who provided the statements.
Prior to the Charter, inadequate disclosure was the norm: this system deprived innocent people of the means to demonstrate their innocence. Miscarriages of justice with Donald Marshall, Steven Truscott, David Milgaard, and similar cases demonstrate just how badly the resistant pre-Charter disclosure practices contributed to wrongful convictions.
The pre-Charter legal culture had poverty of imagination. Ontario alone poised on the verge of enlightenment thanks to then Attorney General Roy McMurtry. Then in 1982 the Canadian Charter of Rights and Freedoms was enacted as part of the Constitution Act. The Charter accelerated the process of law reform in Ontario and then across Canada.
Full modernization of disclosure rules arrived when the Supreme Court of Canada heard the case R. v. Stinchcombe 1991 SCC 45. This ruling changed the substance and mechanics of disclosure, and set down a minimum acceptable standard. Equally important, it shifted attitudes about state investigation of crime.
Previously, the results of a police investigation were deemed the property of the Crown, to be dispensed through the largesse of whichever Prosecutor held carriage of the file. But Stinchcombe swept the nation with a new perspective, saying “the fruits of investigation are the property of the public to be used to ensure that justice is done.”
Current view: An inadequate investigation, and failure to provide pertinent disclosure, taints both the fairness of a trial and the reliability of the verdict.
Justice Canada publishes a Public Prosecution Service of Canada Deskbook (abbreviated PPSC Deskbook). The second edition was brought out in September 2014. The first edition titled Federal Prosecution Service Deskbook (or FPS Deskbook) was published in 2000 with updates in 2005.
Regarding the right of self-represented clients to obtain disclosure, the newer PPSC Deskbook differs little from the old FPS Deskbook. Both editions state: “An unrepresented accused is entitled to the same disclosure as a represented accused in order to make full answer and defence. However, the precise means by which disclosure is provided to an unrepresented accused is left to the discretion of Crown counsel based on the facts of the case.”
That language shows the Crown still hedges on the right to disclosure, in sharp contrast to the clear-cut ‘shall’ directives set down by the Supreme Court of Canada in R. v. Stinchcombe (1991) SCC. After more than two decades, the Crown still lags behind the Supreme Court. Prosecutors still still treat disclosure requests as war; still routinely stonewall to deplete defence reserves; still hide disclosure as a stratagem (but only really need to when their own witnesses, such as the police, lie).
Prosecutors hold every expectation of being challenged under Stinchcombe. Their own PPSC Deskbook instructs: “The Crown must record the nature, extent, and timing of disclosure to a self-represented accused, including any remarks about disclosure made to the accused in court. This is especially important given the prospects of a Stinchcombe review of the decisions made by Prosecutors on the issue of disclosure.”
The PPSC Deskbook is a guide, but has no force in law. Its stated mandate is to “instruct federal prosecutors, whether employees of the PPSC or private-sector agents, in the exercise of their prosecutorial discretion.” More excerpts from the Deskbook, followed by Tuum Est analysis in red:
Public Prosecution Service of Canada Deskbook (2014 Edition)
Prosecutors possess significant discretion in the criminal justice system. The PPSC Deskbook is a means of achieving this goal. It is a compilation of the directives that provide instruction and guidance to federal prosecutors, whether employees of the PPSC or private-sector agents, in the exercise of their prosecutorial discretion.
[Disclosure of relevant evidence is not a matter of prosecutorial discretion, but a legal duty – this is settled law from the Supreme Court ruling Krieger v. Law Society 2002]
Chapter 2.5 Principles of Disclosure
4.3 Unrepresented Accused
The Crown shall advise an unrepresented accused of the right to disclosure and how to obtain it. Release of disclosure – in paper, electronic, or web-based format – should be subject to conditions governing appropriate uses and limits.
If there are reasonable grounds for concern that leaving disclosure material with an unrepresented accused would jeopardize any safety, security, or privacy interests, or result in harassment, the Crown may provide disclosure by means of controlled and supervised, yet adequate and private, access to the material.
The precise method by which the accused is informed that disclosure is available may vary from region to region. In some instances, the Summons or Appearance Notice may so inform. In others, the Crown may provide written or oral notice in court. In some regions, the Judge presiding over first appearances may tell the accused that disclosure is available from the Crown Prosecutor.
The Crown file needs a record of the nature, extent and timing of disclosure to an unrepresented accused, including any representations about disclosure made to the accused in court. This is especially important given the prospects of a Stinchcombe review of the decisions made by Crown counsel on the issue of disclosure.
[The Crown is expecting, and privately preparing for, legal challenges under Stinchcombe from past defendants.]
4.4 Voluminous documentary evidence
In document-heavy cases, the Crown must particularly ensure that the disclosure provided to defence is well organized and capable of being searched.
The Crown's obligation to disclose is not absolute: only relevant information need be disclosed, and information relevant to the defence may be withheld on the basis of the existence of a legal privilege.
[The defence has no means to check the veracity of a privilege argument]
6. Disclosure Costs
The defence shall not be charged a fee for basic disclosure materials. This includes the Information (charging document), a synopsis, copies of witness statements or will-says, the Report to Crown Counsel if extant, and copies of material that the Crown intends to introduce as exhibits (documents, photographs and such).
Material outside the scope of basic disclosure is considered on a case-by-case basis. In instances of unfocused or unreasonable requests involving substantial numbers of documents, it may be appropriate to shift the resource burden to the defence, by requiring that the costs be borne by the accused.
[Contrast this with Section 4.4 above]
|Current||Public Prosecution Service Deskbook
Published 2014 / Current as of 2019
|Preface (Prosecutorial Discretion)|
|4.3 - Disclosure for Unrepresented Client|
|Original||Federal Prosecution Service Deskbook
Published 2000 / Updated 2005
|Table of Contents|
|18.4.3 - Disclosure for Unrepresented Client|
In the review below, the first precedents establish terminology. The remainder proceed through a logical development of the topic. The final precedent discusses the position of modern courts.
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:
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.
[Note: Even with this right, your battle is not won. The Crown tends to provide Disclosure that is inculpatory (proves your guilt), but tends to withhold Disclosure that is exculpatory (proves your innocence). Persistence and scrutiny will be your greatest assets.]
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.
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.
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.
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.
By the late 1990s in Canada, the right to disclosure was settled law. Girimonte ruled:
 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.
 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.
 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.
 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.
 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.]
 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.
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.
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.
In Ahluwalia the Ontario Appeal Court dealt with abuse of process. The case summary and judicial arguments:
 Testimony of a significant witness was false. That testimony coincided exactly with the incomplete disclosure the Crown provided to the defence.
 The close correspondence between the witness's perjury, and the incomplete disclosure provided to the defence, is what makes the fresh evidence so troubling.
 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.
 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.
 The Crown does not appear to have regarded itself as under any obligation to get to the bottom of this matter.
 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.
 Abuse of process arguments may well be open.
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.
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.
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.
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.
[Note: As usual, we hear the language of damage control – telling the public what we long to hear – while the Crown is left with loopholes to exploit. Competitive prosecutors angling for a record of wins are unlikely to undermine their case, especially a shaky case, by revealing disciplinary or criminal records pertaining to their own police witnesses.
Long ago in Boucher v. The Queen (1955) SCC the Supreme Court defined the prosecutor's role: “It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction; it is to lay before a jury credible evidence and pursue justice. Some people accused of crimes are in fact innocent of them. The role of prosecutor excludes any notion of winning or losing.”
The contrast between theory and reality is grave: The history of case law after Boucher shows that some prosecutors still adopt the one-sided loyalty and fierce adversarial stance customary to a civil lawsuit. This distorts the role of the criminal justice system. In fact in criminal law, the Crown does not represent the complainant. The Crown represents the Canadian public. Justice is done in the public interest.]
Canadian Charter of Rights and Freedoms
Charter s 7. – 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.
Context: The right to proper disclosure is recognized under the principle of fundamental justice. Full disclosure of evidence held by the Crown and the Police is an essential first step if the accused is to make a full answer and defence to charges that are laid.
Canadian Criminal Code
Part XX: Procedure in Jury Trials and General Provisions
Inspection and Copies of Documents
CCC s 603. – An accused is entitled, after he has been ordered to stand trial or at his trial,
but the trial shall not be postponed to enable the accused to secure copies unless the court is satisfied that the failure of the accused to secure them before the trial is not attributable to lack of diligence on the part of the accused.
CCC s 605. (1) – A Judge of a superior court of criminal jurisdiction or a court of criminal jurisdiction may, on summary application on behalf of the accused or the prosecutor, after three days notice to the accused or prosecutor, as the case may be, order the release of any exhibit for the purpose of a scientific or other test or examination, subject to such terms as appear to be necessary or desirable to ensure the safeguarding of the exhibit and its preservation for use at the trial.
CCC s 605. (2) – Every one who fails to comply with the terms of an order made under subsection (1) is guilty of contempt of court and may be dealt with summarily by the Judge or Provincial Court Judge who made the order or before whom the trial of the accused takes place.
Tuum Est - It Is Up To You
Prosecutors have a habit of wanting to get convictions. That’s natural. The Police work up a case and dump it in the lap of the Prosecutor. It’s up to him to get a conviction.
In fact, the reputation of a Prosecutor is predicated on the percentage of convictions he gets on the number of cases tried.
Erle Stanley Gardner
Perry Mason: Counterfeit Eye
Contrast the common but misguided view above with the Supreme Court definition:
Prosecutors are to regard themselves as ministers of justice. It is not their role to struggle for a conviction, or be betrayed by feelings of professional rivalry or to regard a criminal case as a contest for skill and preeminence.
Boucher v. The Queen (1955)
Supreme Court of Canada
CCC Part XVIII contains the rules for the Procedure on Preliminary Inquiry.
Part XVIII does not directly give power to a Preliminary Inquiry Justice to review Crown disclosure decisions, but that situation:
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: Report of the Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions
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