2.5 Principles of Disclosure

Public Prosecution Service of Canada Deskbook

Guideline of the Director Issued under Section 3(3)(c) of the Director of Public Prosecutions Act

March 1, 2014

Table of Contents

1. Introduction

In the seminal case on the Crown’s disclosure obligations, R v Stinchcombe,Footnote 1 the Supreme Court of Canada set out the duty on the part of the Crown to provide disclosure to an accused person. The Supreme Court makes it clear that the obligation, though broad, is not absolute, but is subject to Crown counsel’s discretion with respect to both the timing of disclosure and the withholding of information for valid purposes, including the protection of police informers, cabinet confidences and national security, international relations and national defence information.Footnote 2 The obligation is also subject to the limitation that the accused has no right to information that would distort the truth-seeking process.Footnote 3

2. Statement of PolicyFootnote 4

There is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accusedFootnote 5 even if the Crown does not propose to adduce it. While the Crown must err on the side of inclusion, it need not produce evidence that is beyond the control of the prosecution, clearly irrelevant, or privileged.

It is the Crown's obligation to disclose all information, whether inculpatory or exculpatory, that could “reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.”Footnote 6 Information is relevant for the purposes of the Crown's disclosure obligation if there is a reasonable possibility that the withholding of the information will impair the right of the accused to make full answer and defence.Footnote 7

In all cases, whether a request has been received or not, Crown counsel should disclose any information, within their knowledge, tending to show that the accused may not have committed the offence charged. The inability of the Crown to make such disclosure may require a Crown stay or withdraw the charges or request a judicial stay of proceedings.Footnote 8

The purpose of disclosure is two-fold:

  1. to ensure that the accused knows the case to be met, and is able to make full answer and defence; and
  2. to encourage the resolution of facts in issue including, where appropriate, the entering of guilty pleas at an early stage in the proceedings.

The information to be disclosed need not qualify as evidence; that is, it need not pass all of the tests concerning admissibility.Footnote 9 It is sufficient if the information is relevant, reliable and not subject to some form of privilege. Second-hand information that is unconfirmed may or may not be disclosed, depending on counsel's assessment of the issues in the case.

Crown counsel’s disclosure obligation is a continuing one and relates to information that comes to the attention of or into the possession of Crown counsel throughout the process and continues after conviction, including after appeals have been decided or the time of appeal has elapsed.Footnote 10

3. Inclusions

Crown counsel shall, as soon as reasonably practicable,Footnote 11 provide disclosure. In most cases, this will mean that the defence will be given at least the following, subject to editing for statutory or common law privilege or a determination by Crown counsel that the information is irrelevant:Footnote 12

3.1. Charging document

A copy of the information or indictment;

3.2. Particulars of the offence

ParticularsFootnote 13 of the circumstances surrounding the offence. This may include a Report to Crown Counsel (RTCC), an analytical document prepared by the investigative agency, which sets out the evidence relating to the elements of the offences and the investigators’ theory of the case;

3.3. Witness statements

Copies of the text of all written statements concerning the offence which have been made to the police or a person in authority by a person with relevant information to give; where the person has not provided a written statement, a copy or transcription,Footnote 14 if available, of any notes that were taken by investigators when interviewing the witness; if there are no notes, a ‘will-say’ or summary of the anticipated evidence of the witness. This requirement includes statements provided by persons whether or not Crown counsel proposes to call them as witnesses;

3.4. Audio/video evidence statements by witnesses

An appropriate opportunityFootnote 15 to view and listen to, in private, a copy of any audio or video recording of any statements made by a witness other than the accused to a person in authority.Footnote 16 This does not preclude Crown counsel, in his or her discretion, from providing copies of any video or audio recording or a transcript, where available and appropriate, but with appropriate disclosure conditions that take into account the sensitivity of the material. Where defence counsel is unwilling to accept the disclosure conditions, Crown counsel should seek to impose conditions by court order;

3.5. Statements by the accused

A copy of all written, audio or video recorded statements concerning the offence which have been made by the accused to a person in authority; in the case of oral statements, a verbatim account, where available, including any notes of the statement taken by investigators during the interview; if a verbatim account is not available, an account or description of the statement; and a reasonable opportunity to view and listen to, any original audio or video recorded statement of the accused to a person in authority. Copies of all such statements or access thereto should be provided whether or not they are intended to be relied upon by the Crown;Footnote 17

3.6. Accused's criminal record

Particulars of the accused's and any co-accused’s criminal record;Footnote 18

3.7. Expert witness reports

As soon as available, copies of all expert witness reports in the possession of Crown counsel relating to the offence, whether helpful to the Crown or not, should be disclosed. Counsel should pay close attention to s. 657.3 of the Criminal Code (Code), which requires notice to be given where an expert is to be called as a witness at trial;

3.8. Documentary and other evidence

Where reasonably capable of reproduction, copies of (or access to) all documents, photographs, audio or video recordings of anything other than a statement of a person, should be provided whether or not they are intended to be relied upon by the Crown. Where there exists a reasonable privacy or security interest of any victim(s) or witness(es) that cannot be satisfied by an appropriate undertaking from defence counsel, Crown counsel should seek to impose conditions by court order;

3.9. Exhibits

An appropriate opportunityFootnote 19 to inspect any case exhibits,Footnote 20 i.e., items seized or acquired during the investigation of the offence which are relevant to the charges against the accused;

3.10. Search warrants

A copy of any search warrant, whether relied on by the Crown or not, and, subject to relevance and the limitations in section 5 of this guideline, the information in support unless it has been sealed pursuant to a court order,Footnote 21 and a list of the items seized thereunder, if any;

3.11. Authorizations to intercept private communications

If intercepted private communications will be tendered, a copy of the judicial authorization or written consent under which the private communications were intercepted;Footnote 22

3.12. Similar fact evidence

Particulars of similar fact evidence that Crown counsel intends to rely on at trial;

3.13. Identification evidence

Particulars of any procedures used outside court to identify the accused;Footnote 23

3.14. Witnesses' criminal recordsFootnote 24

Information regarding criminal records of material Crown or defence witnesses that is relevant to credibility may have to be disclosed.Footnote 25 This includes disciplinary records of police witnesses where those records fall within the scope of the Crown’s disclosure obligation pursuant to McNeil.Footnote 26 There is no obligation to do a criminal record check on all Crown witnesses.Footnote 27 Special care must be taken with police agents and other potentially disreputable witnesses, particularly foreign ones. A reliable copyFootnote 28 of the person's criminal record, and relevant informationFootnote 29 relating to any outstanding criminal charges against the witness, must be disclosed. Crown counsel must request such information in writing from the relevant police authorityFootnote 30 and place the letter and response on the file. Such information should be adduced by the Crown in the examination-in-chief of the witness.

If, at any point in the proceedings, it becomes apparent that the complete criminal record or the relevant information on outstanding charges was not disclosed, or the witness did not testify truthfully about those matters, defence counsel must be advised and Crown counsel must make immediate efforts to determine the reasons for the non-disclosure or misleading disclosure. Such efforts will include a written request for an explanation to the police officer “handling” the witness and his or her superior officer, and a request that the witness and “handler” be made available to testify on the issue, should the need arise.

3.15. Material relevant to the case-in-chief

Particulars of any other evidence on which Crown counsel intends to rely at trial;

3.16. Impeachment material

Any information in the possession of Crown counsel which the defence may use to impeach the credibility of a Crown witness in respect of the facts in issue in the case;Footnote 31

3.17. Information obtained during witness interviewsFootnote 32

Crown counsel has an obligation to disclose any additional relevant information received from a Crown witness during an interview conducted by Crown counsel in preparation for trial. Additional relevant information includes information inconsistent with any prior statement(s) provided to the investigative agency, e.g. a recantation. Such information should be promptly disclosed to the defence or an unrepresented accused, subject to any limitations contemplated by section 5 of this guideline. To avoid the possibility of Crown counsel being called as a witness, interviews should be conducted in the presence of a police officer or other appropriate third person, where practical to do so;Footnote 33

3.18. Information obtained by Crown Witness Coordinators

In Canada’s three territories, Crown counsel work closely with Crown Witness Coordinators (CWCs). CWCs are in frequent contact with victims and witnesses throughout the court process and often receive information from these sources between the time of initial contact and the trial or sentencing hearing.

The Crown’s disclosure obligation includes any additional relevant information received by CWCs from victims and civilian witness during interviews or other contacts with such persons. Crown counsel and CWCs must always ensure that any additional relevant information provided by victims and civilian witnesses is properly documented and if necessary disclosed. This will also allow Crown counsel to determine if it is necessary to ask police to interview the victim or civilian witness regarding the additional information;

3.19. Other material

Additional disclosure beyond that outlined in sections 3.1 to 3.17 above may be made at the discretion of Crown counsel. In exercising this discretion, Crown counsel shall balance the principle of fair and full disclosure, described in section 1 and 2 of this guideline, with the need, in appropriate circumstances, to limit the extent of disclosure, as outlined in section 5 of this guideline;

4. Exceptional Situations

4.1. Third party information

Information in the possession of third parties such as boards, social agencies, other government departments, rape crisis centres, women’s shelters, doctors’ offices, mental health and counselling services or foreign law enforcement agencies is not in the possessionFootnote 34 of Crown counsel or the investigative agency for disclosure purposes. Where Crown counsel receives a request for information not in their possession or the possession of the investigative agency, the defence should be advised that these records are in the possession of a third party in a timely manner in order that the defence may take such steps to obtain the information as they see fit. Even where third party records are physically in the possession of the Crown, disclosure is not automatic. Unless the person to whom the information pertains has waived his or her rights, that person still has a privacy interest in the records.

If the Crown is put on notice or informed of the existence of potentially relevant information in the hands of a third party, including information pertaining to the credibility or reliability of the witnesses in a case, the Crown’s duty to make reasonable inquiries of that third party is triggered.Footnote 35 The third party is not obligated to provide them to the Crown on request. Crown counsel must disclose the request to the defence who may choose to bring an application for disclosure of the third party records.Footnote 36

4.2. Protecting witnesses against interference

If the defence seeks information concerning the identity or location of a witness, Crown counsel must consider four factors: first, the right of an accused to a fair trial and to make full answer and defence; second, the principle that there is no property in a witness;Footnote 37 third, the right of a witness to privacy and to be left alone until required by subpoena to testify in court; fourth, the need for the criminal justice system to prevent intimidation or harassment of witnesses or their families, danger to their lives or safety, or other interference with the administration of justice.Footnote 38

4.2.1. Consent release of information concerning a witness

Where the witness does not object to the release of information concerning his or her identity or location of a witness, and there exists no reasonable basis to believe that the disclosure will lead to interference with the witness or with the administration of justice as described above, the information may be provided to the accused without court order.

4.2.2. Witnesses refusing to be interviewed

Where a witness does not wish to be interviewed by or on behalf of an accused,Footnote 39 or where there is a reasonable basis to believe that the fourth consideration referred to in section 4.2 (interference with witnesses or their families) may arise on the facts of the case,Footnote 40 Crown counsel may hold back information concerning the identity or location of the witness unless a court of competent jurisdiction orders its disclosure.Footnote 41 Nevertheless, defence counsel must be advised of the existence of the witness and his or her relevant information.

4.2.3. Controlled interviews

Where a witness is willing to be interviewed, but there nonetheless exists a reasonable basis to believe that the disclosure of information concerning the identity or location of the witness may lead to interference with the witness or with the administration of justice as described above, including situations where the witness is in a Witness Protection Program, Crown counsel may decide to arrange for an interview by defence counsel at a location and under circumstances that will ensure the continued protection of the witness.Footnote 42 If the witness is protected under a Witness Protection Program, the agreement of the police agency administering the program will be required.

4.3. Unrepresented accused

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.

If an unrepresented accused indicates an intention to proceed without counsel, Crown counsel shall advise the accused of the right to disclosure and how to obtain it.Footnote 43 This requirement does not preclude a guilty plea without disclosure, for example where the accused simply wishes to dispose of the charge as quickly as possible. Disclosure does not form a condition precedent to the entry of a guilty plea. However, an unrepresented accused must clearly indicate that he or she does not wish disclosure before a guilty plea is entered.Footnote 44

If an unrepresented accused indicates an intention to plead guilty to an offence for which there will likely be a significant jail term, counsel should suggest to the presiding judge that an adjournment may be in order to permit disclosure to the accused. However, an adjournment is not required as a matter of law and much will depend on the circumstances of each case, including whether the accused is in custody.

If there are reasonable grounds for concern that leaving disclosure materials with an unrepresented accused would jeopardize the safety, security, privacy interests, or result in the harassment of any person, Crown counsel may provide disclosure by means of controlled and supervised, yet adequate and private, access to the disclosure materials. Special care may be required where an unrepresented accused personally seeks access to evidence where the integrity of that evidence may be placed in issue at trial, e.g., the drug exhibit, taped private communications.

Counsel should ensure that, where disclosure is made to an unrepresented accused, it is made subject to conditions governing the appropriate uses and limits upon the use of disclosure material. In cases in which there are no sensitive disclosure materials, these basic conditions provide fair warning for accused persons that the disclosure material is not to be disseminated or used for purposes other than to assist them in making full answer and defence in the prosecution. Violations by an accused of the conditions (contained in a cover letter) would likely give rise to a Crown request to impose those conditions on the accused by court order. Any breach of the court order could be dealt with pursuant to the court’s contempt powers. Counsel should be particularly mindful of the sensitivity of McNeil disclosure information, when dealing with self-represented accused persons.

In some cases, there may be sensitive disclosure materials, as well as some basic, non-sensitive, disclosure material. If the latter material can be separated from the rest of the disclosure it can be given to the accused with disclosure conditions. The sensitive portions of the disclosure could be dealt with by providing the accused either with access to the material in a private room in a police station or with the disclosure material subject to restrictive court-ordered conditions.Footnote 45

Special care may also be required where an unrepresented accused is incarcerated. Incarcerated unrepresented accused persons are entitled to adequate and private access to disclosure materials under the control and supervision of custodial officials. Arrangements can be made with the jail to facilitate adequate and private electronic access to the disclosure materials.

Crown counsel must place a note on the Crown file concerning 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.

4.4. Voluminous documentary evidence

In document heavy cases, counsel must particularly ensure that the disclosure provided to defence is well organized and capable of being searched. In other words, it must be reasonably accessible. As noted in Dunn,Footnote 46 “the greater the volume of material disclosed, the greater the need for organization and reasonable search capabilities”.

5. Exclusions

The Crown’s obligation to disclose is not absolute: only relevant information need be disclosed, and information which is relevant to the defence may be withheld on the basis of the existence of a legal privilege.Footnote 47

Where Crown counsel decides not to disclose relevant information on the grounds of privilege, defence counsel should be advised of the refusal, the basis of the refusal (i.e., type of privilege alleged) and the general nature of the information withheld to the extent possible. However, in some circumstances, even the acknowledgement that information exists (i.e., information related to international relations, national defence or security or information regarding a police informer or an ongoing police investigation) would cause the harm that the privilege is seeking to prevent. In such circumstances, counsel are expected to exercise good judgment and consult with their Chief Federal Prosecutor to assess what is an appropriate course of action. If the fact of the existence of the privileged information cannot be disclosed, a stay of proceedings may be required.

Where disclosure of information is delayed to protect the safety or security of witnesses pursuant to section 4.2 of this guideline or to complete an investigation pursuant to section 5.3, Crown counsel must disclose the information as soon as the justification for the delay in disclosure no longer exists. The fact that some disclosure is being delayed should be communicated to the defence without revealing the reason for the delay.

5.1. Police informersFootnote 48

Disclosure of information that may tend to identify a confidential police informer is not permitted. The Crown like the Court is under an obligation to protect the identity of a confidential police informer. The privilege cannot be waived unilaterally by the informant or by the Crown. This obligation is not limited to protecting the name of the informer: it extends to any information that may tend to reveal the identity of the person who provided information to the police. The vetting process must be done in close consultation with the police who are better placed to assess the degree of risk in unredacted information. The police informer privilege is subject to only one exception: where the accused’s factual innocence is at stake.

5.2. Reply evidence

During trial, Crown counsel must disclose any previously undisclosed information in Crown counsel’s possession, as soon as reasonably possible after it becomes apparent that the information is relevant. However, pre-trial disclosure is not required of reply evidence that could be tendered by the Crown in response to issues raised by the accused at trial, where the relevance of that evidence only becomes apparent during the course of the trial itself.Footnote 49

For example, Crown counsel is not generally required to disclose evidence in his or her possession regarding the accused’s bad character. However, if the accused indicates that reliance will be placed on good character evidence in support of the defence advanced and the Crown becomes aware of information either rebutting or confirming the defence, the information must be promptly disclosed to the defence.Footnote 50 There is a general obligation to disclose any relevant information resulting from an investigation prompted by an accused’s pre-trial disclosure of a defence.

5.3. On-going investigations

Information that may prejudice an ongoing police investigation should not be disclosed.Footnote 51 It is important to note that the Crown may delay disclosure for this purpose but cannot refuse it, i.e., withhold disclosure for an indefinite period.

5.4. Investigative techniques

Information that may reveal confidential investigative techniques used by the police is generally protected from disclosure.

5.5. Cabinet confidencesFootnote 52

Information that constitutes a confidence of the Queen's Privy Council for Canada pursuant to s. 39(2) of the Canada Evidence ActFootnote 53 must be protected from disclosure.

5.6. International relations/national security/national defenceFootnote 54

Section 38 of the Canada Evidence Act creates a scheme for the protection of ‘sensitive information’ and ‘potentially injurious information’, as defined in that section, with respect to international relations, national defence or national security.

5.7. Solicitor-client privilege

Information protected by solicitor-client privilegeFootnote 55 cannot be disclosed, subject to waiver or any of the exceptions.

5.8. Work product privilegeFootnote 56

This privilege, whose object is to ensure the efficacy of the adversarial process, protects information or documents obtained or prepared for the dominant purpose of litigation, either anticipated or actual. Thus, Crown counsel generally need not disclose any internal notes, memoranda, correspondence or other materials generated by the Crown in preparation of the case for trial unless the work product contains material inconsistencies or additional facts not already disclosed to the defence.Footnote 57 As a general rule, work product applies to matters of opinion as opposed to matters of fact.Footnote 58 This privilege does not exempt disclosure of medical, scientific, or other experts’ reports.Footnote 59 Unlike solicitor-client privilege, this privilege has a limited lifespan and comes to an end, absent closely related proceedings, upon the termination of the litigation that gave rise to the privilege.Footnote 60

6. Disclosure Costs

An accused person or his or her counsel shall not be charged a fee for ‘basic disclosure’ materials.Footnote 61

“Basic disclosure” materials include the information, a synopsis, copies of witness statements or will-says, the Report to Crown Counsel, if one exists, and copies of documents, photographs and the like, that Crown counsel intends to introduce as exhibits in the Crown’s case. Each accused is entitled to one copy of ‘basic disclosure’ materials. Where an accused person requests an additional copy or copies, the accused may be charged a reasonable fee for this service.Footnote 62

Costs associated with the preparation of copies of materials that are not part of ‘basic disclosure’, e.g., photographs that will not be introduced as exhibits by Crown counsel, should be 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.Footnote 63 Failing agreement, simple access without copies may be provided.

7. Form of DisclosureFootnote 64

Crown counsel may provide the defence with copies of documents that fall within the scope of ‘basic disclosure’ materials as defined in section 6 of this guideline in either a paper format (e.g., photocopies), an electronic format (e.g., by CD-ROM) or a web-based format. Where the accused is unrepresented, Crown counsel should use his/her judgment as to whether copies of such documents should be provided in a paper format.

Where disclosure is in one of the two official languages, it does not need to be translated.

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