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Canadian Criminal Procedure and Practice/Disclosure

< Canadian Criminal Procedure and Practice

General Principles

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The Crown must disclose all materials information that is in its possession or control that is not clearly irrelevant, regardless of if the evidence is to be called at trial or is inculpatory or exculpatory.[1]

The right to disclosure is founded in the principle of fair play between parties[2] as well as the right to make full answer and defence.[3]

The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must "take reasonable step to inquire about ...relevant information".[4]

The obligation also requires the Crown to preserve all relevant evidence.[5]

This obligation is jointly held by both Crown and police.[6]


The "Stinchcombe disclosure regime" only applies to "material relating to the accused’s case" that are "in the possession or control" of the Crown.[7]

  1. ↑ R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326 at 339 and 343 (Stinchcombe #1)
    R. v. Stinchcombe, 1995 CanLII 130 (SCC), [1995] 1 SCR 754 at 755 (Stinchcombe #2)
    R. v. Wickstead, 1997 CanLII 370, [1997] 1 SCR 307
  2. ↑ R. v. Lemay [1952] 1 SCR 232; R. v. Boucher, [1955] SCR 16
  3. ↑ s.650(3) ...
    To make defence
    (3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
    Right to make full answer and defence
    802. (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence. R. v. Carosella, 1997 CanLII 402 (SCC), [1997] 1 S.C.R. 80, stated disclosure by the crown is "one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter."
    See also:R. v. Wood (1989) OntCA)
  4. ↑ R v Darwish [2010] O.J. No. 604 (C.A.) at para 31
  5. ↑ R v La 1997 CanLII 309 (SCC), at para 17
  6. ↑ R v McNeil 2009 SCC 3 para 14
  7. ↑ R v McNeil 2009 SCC 3 at para. 22

The "Stinchcombe Principles"

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The Martin Committee produced a report considering the decision. The report detailed the principles of the case, at p. 146:

  1. The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction, but, rather, are the property of the public to ensure that justice is done. Stinchcombe, at para. 12
  2. The general principle is that all relevant information must be disclosed, whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information, whether it is inculpatory or exculpatory, and must produce all information which may assist the accused. If the information is of no use, then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion, which is reviewable by the trial judge.

Defence Raising Disclosure Issues

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The duty to disclose is engaged once the accused requests information from the crown any time after the charge has been laid. [1] If defence fails to raise the issue and remains passive, they are less able to claim that non-disclosure affected trial fairness.[2]

Defence have an obligation to diligently pursue disclosure by actively seeking and pursuing disclosure once they become aware or ought to have been aware of it.[3] This means the defence should bring any failure to disclose to the Court's attention at the earliest opportunity so that the judge can remedy any trial unfairness.[4]

  1. ↑ Stinchcombe #1 at 342
  2. ↑ R v Dixon at 38
  3. ↑ R v Stinchcombe #1 at 341; Dixon 1998 CanLII 805 at para 37
  4. ↑ Stinchcombe at 341

When the Obligations Exist

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The Crown will only be subject to disclosure obligation where there is evidence in its possession or control and it is relevant.

Burden

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Once the right to disclosure has been invoked by the Defence the onus is upon the Crown to comply with the obligation. The Crown may refuse to disclose certain information, but has the burden of proving why full disclosure should not be applied.[1]

The information will not be considered disclosure where it is: [2]

  1. Irrelevant
  2. Not in the control of the Crown
  3. Privileged

Satisfying any one of these requirements will eliminate any disclosure obligations upon the Crown.

  1. ↑ R. v. Durette, 1994 CanLII 123 (SCC), [1994] 1 S.C.R. 469 at para 44
  2. ↑ R. v. Chaplin, 1995 CanLII 126 (SCC), [1995] 1 S.C.R. 727 at para 25 (The Crown "must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged")
    see also R. v. Bottineau, [2005] O.J. No. 4034 at para. 45

Control

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See also Canadian Criminal Procedure and Practice/Disclosure/Third Party Records

Where evidence is not in the control of the Crown it may be the subject of a third party records application, also known as an "O'Connor Application".[1]

In an O'Connor application the Defence must show that the evidence is "likely relevant".[2]

  1. ↑ R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R. 411 (S.C.C.)
  2. ↑ O'Connor

Relevance

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Not all information in possession of police must be disclosed. It must only be "relevant" evidence.[1] The "threshold question in any instance of non-disclosure is whether the evidence was relevant"[2]

The burden is upon the crown to prove that the information was "clearly irrelevant".[3]

Relevance refers to whether "it could reasonably be used by the defence in meeting the case for the Crown".[4]That is to say there is "a reasonable possibility that the information could be useful to the accused in making full answer and defence.".[5]

The standard of relevancy is where there is a “reasonable possibility that the information will be useful” to the accused in making full answer and defence.[6] Utility consists of information used for:[7]

  1. meeting the case for the Crown
  2. advancing a defence
  3. influencing the defence’s trial strategy, such as the decision to call evidence

Relevance is not limited solely to inculpatory evidence nor only evidence that the Crown would adduce at trial. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the Defence. All possible exclupatory evidence must be provided as well, however, this obligation does not extend to a duty to examine the exculpatory evidence.[8]


  1. ↑ R. v. Banford, 2011 SKQB 418 (CanLII), 2011 SKQB 418, [2012] 3 W.W.R. 835 at para. 5 citing Stinchcomb, among others
  2. ↑ R. v. Banford, 2010 SKPC 110 (CanLII), 2010 SKPC 110, 363 Sask. R. 26 (SKPC) at para. 13
  3. ↑ Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 (S.C.C.)
  4. ↑ R. v. McQuaid, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 (S.C.C.) at para. 20
    R. v. Dixon, 1998 CanLII 805 (SCC), [1998] 1 S.C.R. 244 at para. 20
  5. ↑ R. v. Banford, 2011 SKQB 418 at para. 5
  6. ↑ R v Egger 1993 CanLII 98, [1993] 2 SCR 451 at 467 and para 20
    R v Dixon 1998 CanLII 805, [1998] 1 SCR 244 at 22
  7. ↑ Dixon at 22
  8. ↑ R. v. Daley, 2008 BCCA 257, [2008] B.C.J. No. 1341 at paras. 13-15, and by the Ontario Court of Appeal in R. v. Darwish, 2010 ONCA 124
    , 252 C.C.C. (3d) 1 at paras. 28-30 and 39-40 leave to SCC denied

Duration of the Obligation

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The duty is engaged upon the request of the Defendant. It is continuous throughout the proceedings up to and including the trial. The Crown may object to the request on the basis that it is irrelevant, outside of their control, or otherwise privileged.[1] The burden is on the Crown to justify the refusal to disclose.

The duty to disclose is ongoing and so any new information received must also be disclosed.[2]

  1. ↑ R. v. Chaplin, [1995] 1 SCR 727
  2. ↑ R v Stinchcombe #1 at 343

After Verdict

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Fresh Evidence

The right to disclosure may not extend to the into a conditional sentence breach hearing as there is less of a right to full answer and defence.[1]

  1. ↑ R. v. Sitaram 2011 ONCJ 199

Specific Type of Disclosable Evidence

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Materials including statements and police notes are required to be disclosed under s. 603:

603. An accused is entitled, after he has been ordered to stand trial or at his trial,

(a) to inspect without charge the indictment, his own statement, the evidence and the exhibits, if any; and
(b) to receive, on payment of a reasonable fee determined in accordance with a tariff of fees fixed or approved by the Attorney General of the province, a copy
(i) of the evidence,
(ii) of his own statement, if any, and
(iii) of the indictment;

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.

R.S., 1985, c. C-46, s. 603; R.S., 1985, c. 27 (1st Supp.), s. 101(E).

– CCC

At a minimum, the Crown should disclose "can say" or "will say" statements from any witness it proposes to call at trial.[1]

Evidence that is in an undecipherable form, such as unlockable encrypted data, does not need to be given to defence as disclosure as the Crown cannot properly vet it for disclosable and non-disclosable information. [2]

  1. ↑ R v Stinchombe, 1991 CanLII 45, [1991] 3 SCR 326 at para 30
  2. ↑ R. v. Beauchamp, 2008 CanLII 27481 (ON SC)

Examples of Typical Disclosure

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Police compile a package of the evidence consisting of the notes, reports and statements generated during their investigation that is forwarded to the Crown Attorney's office. This usually comprises the initial disclosure package that is made available to the Defence counsel.

Disclosure packages can contain any of the following:

  1. the Information outlining the charges laid;
  2. the Crown Sheet or Crown Brief summarizing in the evidence in narative form and listing the witnesses that are available;
  3. the Police Notes consisting of handwritten notes made by all the officers involved in the case during their investigation;
  4. the Witness statements consisting of the verbatim recollection of the potential witnesses to the offence (written, audio, or video form);
  5. A Cautioned Statement of the accused
  6. the Criminal record of the accused as recorded in provincial databases or CPIC (Canadian Police Information Centre) printout;
  7. Copies of Court Orders (Probation Orders; Prohibition Orders; Recognizances)
  8. Expert Reports
  9. Certificates of analysis (often for breathalizer machine results; drug analysis; or firearms test results);
  10. the Medical records of the victim in cases of resultant injuries;
  11. Restitution claims where property has been lost or damaged;
  12. Photographic evidence often consisting of photos of the scene of the incident or injuries.

Further material requested often includes:

  1. Videos or images of accused while in police custody
  2. computer printouts of any police database searches related to the accused
  3. Demands made to client by the police from a script (e.g. Charter caution, breath demand, etc)
  4. Printed logs and audio recordings of police, 911 dispatch, or ambulance transmissions
  5. Notes of any professionals, such as doctors, ambulance crew, fire crew, etc. who was present at scene of incident
  6. records of testing, maintenance, usage, and calibration of breath device used by accused
  7. notes and reports regarding searches of accused (including strip searches)
  8. Police action reports: Use of Force Reports, Use of Pepper Spray Reports
  9. reports and materials related to police procedure on (use of force, taking statements, crowd control, parking violations, use of taser)
  10. discipline record of officers
  11. criminal records of witnesses
  12. police reports regarding witnesses
  13. records of outstanding charges of witnesses

Vetting Disclosure

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When documents are to be released for disclosure, the police and crown are permitted to vet the materials for the purpose of removing information that may not be disclosable. Types of information that can be validly redacted from the disclosure before going out to the defence include:

  1. clearly irrelevant information
  2. information tending to identify a confidential police source
  3. police investigative techniques
  4. advice that would be covered by solicitor-client privilege (either defence counsel or crown counsel)

See further details on Privilege section.

Disclosing to Third Parties

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A third party request for the production of materials that are part of a proceeding must be made to the presiding judge.

Where a matter has been concluded, the superior court does not have jurisdiction to order the release or production of any documents or evidence to third party applicants.[1]

  1. ↑ Canadian Broadcasting Corporation v. Canada (Attorney General), 2009 NSSC 400 (CanLII) upheld at 2010 NSCA 99

Police Obligations to Collect Evidence

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See also Canadian_Criminal_Procedure_and_Practice/Trials/Weighing_Evidence#Lack_of_notes

There is no violation of the disclosure obligation arising from a failure to collect information.[1]

There is no burden on the police to record evidence of all conversations with witnesses, even important ones.[2]

Where the handwritten notes of an officer are illegible, then the obligation of disclosure can require the crown to transcribe the notes or otherwise provide them in legible form.[3]

The police do not have a general obligation under collect evidence in a certain manner or create specific material disclosure and so a failure to do so would not amount to a failure to provide disclosure or impact the right to make full answer and defence.[4]

Incomplete notes do not breach the right to full answer and defence. As long as the majority of the officer's evidence is recorded in some fashion there will be no violation.[5]

The court have no authority to direct officers on how they should keep their notes.[6] They should not be micromanaging the police's handling of a case.[7]

The police have no obligation "to conduct their investigation in any particular way, to record every word spoken in an interview or to take a written statement from every potential witness who is interviewed."[8]

Police are not obliged "to preserve everything that comes into their hands on the off-chance that it will be relevant in the future."[9]

Investigative police strategies and "tactical information are presumptively not disclosable absent a particularized claim to relevance".[10]

  1. ↑ R. v. Hanano, 2006 MBQB 202 (CanLII) at para. 20
  2. ↑ R. v. Wicksted, 1996 CanLII 641 (ON CA), [1996] O.J. No. 1576, 29 O.R. (3d) 144 at p. 155: ("As pointed out by the trial judge, counsel were unable to provide him, nor were counsel able to provide this court with any Canadian authority wherein a stay was granted for the failure of investigating police officers to record conversations with important witnesses.")
  3. ↑ R. v. Bidyk, 2003 SKPC 124
    R. v. Abrey, 2007 SKQB 213 (CanLII)
  4. ↑ R. v. Korski, 2007 MBQB 185
    R. v. Darwish
    R. v. Barnes, 2009 ONCA 432
  5. ↑ R. v. Bailey, 2005 ABPC 61 at para. 38, 46
  6. ↑ R. v. Pickton, 2007 BCSC 2029, [2007] B.C.J. No. 3100 (B.C. S.C.) at para. 9
  7. ↑ R. v. Bailey, 2005 ABPC 61 at para. 38, 46
  8. ↑ R. v. Korski, 2007 MBQB 185 (CanLII)
  9. ↑ R. v. Lees, 2011 SKPC 98, [2011] S.J. No. 507 (SKPC)
  10. ↑ R. v. Pickton, 2005 BCSC 1240 at para. 44

Lost or Destroyed Evidence

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Not every instance of negligence that results in the loss of evidence such as a video tape result in a Charter breach.[1]

The loss of evidence will not result in the a breach of duty to disclose so long as the conduct of police was reasonable.[2]

Notifying the accused ahead of destruction of property inviting inspection may cure the prejudice cause by the loss of evidence from the destruction of property.[3]

  1. ↑ R. v. Lipovetsky, 2007 ONCJ 484, [2007] O.J. No. 4135 at para. 19 ("Even where there is negligence on the part of the Crown, the loss of a videotape does not automatically violate the Charter. A Charter breach is established only where the lost evidence is shown by the applicant to be relevant to the issues at trial.")
    See also R. v. Dulude [2004] O.J. No. 3576 (C.A.) at para. 30.
  2. ↑ R. v. La 1997 CanLII 309 (SCC), [1997] 2 S.C.R. 680 at para. 21
  3. ↑ e.g. R v Berner, 2012 BCCA 466 - car in collision destroyed by police prior to trial. Officer sent registered mail letter to accused prior to releasing vehicle.

Consequences of Breaching the Obligation

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Where relevancy is in dispute, the burden rests on the accused to prove on a balance of probabilities that breach of the Charter right to disclosure has been violated.[1]

Where a breach of the right to full disclosure is found it does not necessarily follow that the right to make full answer and defence was violated.[2] Where the right to make full answer and defence is not implicated, the usual remedy is either an adjournment or order of production.[3] In fact in general, where disclosure has not been given or is given late, the usual remedy is an adjournment.[4]

  1. ↑ see R. v. O’Connor, 1995 CanLII 51 (SCC), [1995] 4 S.C.R .411 (S.C.C)
    R. v. Bjelland, 2009 SCC 38 (CanLII), [2009] 2 S.C.R 651
  2. ↑ R v Dixon, at 23 and 24
  3. ↑ see R. v. Dixon, para. 31 and 33
  4. ↑ R. v. Demeter (1975) 10 OR 321 (CA)
    R. v. Caccamo, [1976] SCR 786
    R. v. Bjelland, 2009 SCC 38, [2009] S.C.J. No. 38, at para 25

New Trial

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Where late disclosure results in an unfair trial, even after the trial, an new trial may be ordered.[1] </ref> However, this may not constitute a distinct Charter breach.[2]

Late disclosure does not necessarily result in an unfair trial.[3] A number of factors should be considered.[4]

  1. ↑ R. v. C(MH) 1991 1 SCR 763
    R. v. Bjelland, 2009 SCC 38 [1]
  2. ↑ R v. Douglas (1991) 5 OR 29
  3. ↑ R v Rejzek, 2009 ABCA 393 at para 26
  4. ↑ See R v McQuaid, 1998 CanLII 805, [1998] 1 SCR 244 at para. 31

Exclusion of Evidence

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Where late disclosure warrants the exclusion of evidence follow the following principles from R v Bjelland:

(a) Remedies under s. 24(1) of the Charter are flexible and contextual. The exclusion of evidence cannot be ruled out under s. 24(1). However, such a remedy will only be available where a less intrusive remedy cannot be fashioned to safeguard the fairness of the trial process and the integrity of the justice system.
(b) The Crown’s failure to disclose evidence does not, in and of itself, constitute a violation of s. 7. Rather, an accused must generally show “actual prejudice” to his ability to make full to answer and defence.
(c) An accused must receive a fair trial, however, the trial must be fair from both the perspective of the accused and of society more broadly. A fair trial is one which satisfies the public interest in getting at the truth, while preserving basic procedural fairness for the accused.
(d) A trial judge should only exclude evidence for late disclosure in “exceptional” cases:
(e) where late disclosure renders the trial process unfair, and the unfairness cannot be remedied through an adjournment and disclosure order, or
(f) where exclusion in necessary to maintain the integrity of the justice system.

Stay of Proceedings

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Within the rights under section 7 of the Canadian Charter of Rights and Freedoms include the "right to full answer and defence". This right requires the Crown to provide all relevant evidence. A failure to do so may violate this right, and a breach of that right may entitle the accused to a stay of proceedings under s. 24(1) of the Charter.

Where a section 7 Charter breach is alleged on the basis of violating the right to make full answer and defence due to failure to make disclosure, the issue will usually be left for the conclusion of trial. Not only to first determine whether there is insufficient evidence for guilt but also that the judge can properly assess whether the right to full answer and defence was violated in context of the case in its entirety.[1]

Delayed disclosure can be a factor but not a sole basis of seeking a stay.[2]

  1. ↑ R. v. F.C.B. 2000 NSCA 35 (CanLII), 2000 NSCA 35 (N.S.C.A.)
      R. v. Banford 2010 SKPC 110 (CanLII), 2010 SKPC 110 (Sask. Prov. Ct.) at paragraph 10 (overturned at 2011 SKQB 418 (Sask. Q.B.) on other grounds).
      R. v. Salisbury, [2011] S.J. No. 259 (Sask.Q.B.)
    R v Burwell, 2011 SKPC 188
  2. ↑ R. v. Dias, 2010 ABCA 382

Costs

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Where failure to disclose is flagrant and unjustified, the court may order costs.[1]

  1. ↑ R. v. 974649 Ontario Inc., 2001 SCC 81 (CanLII), [2001] 3 S.C.R. 575


Other Topics

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Digests

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Disclosure

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  • R v Boutin, 2012 SKQB 291 -- lost video tape irrelevant to delayed detention in impaired driving case
  • R v Slater, 2012 SKPC 69 -- request for training materials for DRE examination refused-
  • R. v. Carey, 2012 CanLII 20684 (NL PC)-- detailed summary of the law on disclosure
  • R v Swanson, 2012 SKQB 156 -- granted order disclosing performance record of sniffer dog
  • R v. Vincent Quesnelle, 2010 ONSC 175 [2] -- failed to establish basis for police occurrence reports
  • R v Breau, 2011 NBQB 245 -- judge releases medical documents from Morgentaler clinic
  • R. v. John, 2011 ONCJ 607 -- 3rd party records for police policy on driving offences -- denied
  • R v G(S) 2012 ONCJ 176 -- defence unsuccessfully tries to get disclosure from crown consisting of police training manuals
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