CROWN DISCLOSURE & THEIR OBLIGATIONS IN CRIMINAL CASES

WHAT IS CROWN DISCLOSURE?

Crown disclosure is simply the records that are in the possession or control of the Crown Attorney which are relevant and constitute the product of the police investigation or which will likely form the case against the accused. Essentially all the evidence of the police investigation. The accused has a right to disclosure and the Crown must provide it as soon as possible. Full disclosure of all the evidence is required to enable the accused to make an informed decision about the strength of the Crown’s case and to allow them to make full answer and defence. The right to disclosure is important and a fundamental right that is protected by section 7 of the Charter of Rights and Freedoms and by sections 650 an 802 of the Canadian Criminal Code. Making full answer and defence is a constitutional right.

The landmarkSupreme Court of Canada decision that entrenches the Crown’s disclosure obligations is R. v. Stinchcombe (1991). The Court ruled that Crown counsel had a duty to provide as soon as possible to the defence all the evidence that could possibly be relevant to the criminal case. This is regardless of whether the Crown plans to call that evidence at the criminal trial or not. This applies to all evidence even if it helps or hurts the Crown’s case. That the Crown must disclose all relevant information, and any new information that is discovered, was in the public interest and was not dependent on the criminal charges. Also, on a reasonable basis disclosure should be made available in the two official languages of Canada.

As Justice Sopinka states in R. v. Stinchcombe, “I would add that the fruits of the investigation which are in the possession of counsel for the Crown 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. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution.”

The Supreme Court of Canada in 2009 in R. v. McNeil also further made it a requirement that the Crown produce to the defence counsel relevant findings of serious misconduct of police officers involved in the investigation of the accused. This includes any criminal or police act charges. The Supreme Court of Canadaconfirmed that is was a well established principle of fundamental justice that the Crown Attorney must disclose all relevant information in its possession to the accused person. That an accused the right to disclosure of the charges an officers criminal and police service record.

CROWN DUTY TO INQUIRE FROM OTHER AGENCIES?

Crown counsel also has a positive obligation to inquire from other government departments and other Crown entities of they are in possession or control of any relevant information that would assist the accused make full answer and defence of their criminal matters. Often Crown counsel will seek disclosure information from the Ministry of Transportation, the Canada Border Service Agency and other agencies that have close connections to the justice system.

Often with a driving related criminal offence an accused person’s driving record along with their criminal record will be included in the disclosure package. Often Crown counsel or the investigating police service will make inquires from foreign law enforcement agencies for information that will assist with the Crown’s case.

OTHER CROWN DISCLOSURE OBLIGATIONS

As mentioned, the principles of fundamental justice require the Crown to provide all relevant material and information to the accused from the criminal investigation whenever there is a reasonable possibility that said information will be useful. Also to make reasonable inquiries from other agencies, if required, for any relevant information. The Crown must also ensure that there is a preservation of evidence. The Prosecutor must treat disclosure evidence not as property belonging to the Crown for the purposes of the Crown’s case, but rather as property belonging to the public interest to ensure that justice is fairly served and allow the making full answer and defence. The Crown must make the appropriate inquires to ensure that all the relevant evidence is preserved and not destroyed. This obligation was confirmed by the Supreme Court of Canada in both R. v. Stinchcombe (1991) and again in R. v. La (1997).

The Crown’s obligation begins the moment criminal charges are laid by police. There is an ongoing duty to disclose relevant evidence in control of the Crown through the trial process and the appeals process. Once the matter is completed traveling through the criminal justice system, and regardless if the accused person was found guilty and received a criminal records or not, there is a duty to disclose any fresh evidence that the Crown may learn of.

WHAT EVIDENCE IS USUALLY INCLUDED IN DISCLOSURE?

The types of information, records and materials that are often included in the Crown disclosure package include such items as:

• Police notes – the notes that police officers made in relation to the their role in the investigation of the criminal offence; their personal observations and the relevant information with respect to the investigation.
• Witness Statements – witness statements are made in various ways, and formats. Police officers often include witness statements in their hand written notes. Sometimes witnesses attend the police stations and provide formal sworn witness statement on video recordings – often referred to as KGB statements. More recently with better technology witness statements are sometimes taken at the scene by police officers using their in-car cameras or using their police issued body worn cameras. There are also times that witnesses provide written statements by email. All these statements need to be provided to defence counsel and the accused person.
• Police Records – there are many different types of police records, police officer reports and materials generated during police investigations and should be disclosed. Examples include synopsis of allegations, list of charges, witness lists, related occurrence reports, a criminal record, internal notes of the investigation, and charge summaries. Defence should always try and obtain a copy of the police I/CAD report which is simply a computer generated report that notes times of calls, police dispatch times, radio transmissions and other information relating to the investigation.
• Forensic Reports – depending on the allegations and charges, there may be a forensic reports that will be disclosed. For example, results from DNA testing, drug analysis reports, fingerprint results, toxicology reports, and other laboratory test results.
• Search Warrants – police and the Crown must disclose the search warrants, results of the searches or productions order and the affidavits and information presented to a Judge to obtain these warrants.
• Expert Reports – sometimes the Crown will want to rely on expert witnesses at trial and will need to provide the expert witness reports and the expert qualifications prior to the trial date.
• Relevant Information or Documents – criminal records of the accused person and witnesses, police McNeil Reports, documents from production orders, bail hearing materials, release documents,
• Notice of Evidence – the Canada Evidence Act requires the police and the Crown to provide notice in advance of the evidence or types of evidence that they intend to induce at trial.

EXCEPTIONS TO DISCLOSURE EVIDENCE

The Crown Attorney is not obligated to disclose information that is not relevant, that is protected by privilege or that is recognized by common law as being an established exception to the Crown’s duty. In such cases the defence lawyer must obtain a court order to have Crown counsel disclose this type of information.

Non disclosure material includes such items as:

• Private information of Crown witnesses, such as their contact information, medical records, mental health records, if they have attended for any counselling services, any personal records, etc. In sexual assault cases there are privacy concerns that the Crown will be concerned about that is not present in other criminal matters.
• Any first party disclosure information that may jeopardize the safety of Crown witnesses or other parties.
• Information that could reveal a confidential informant at anytime during the disclosure process.
• Information or premature disclosure that could undermine police investigative techniques or another ongoing criminal prosecution.
• Any solicitor client privilege information. Any Crown information that is subject to work-product privilege.

Disclosure information that compromises national security or other national defence information also clearly falls within a recognized common law exception to Crown counsel’s disclosure obligations. Non disclosure of irrelevant information or material falls under the Crown’s discretion and not that of the police.

WHAT IS CONSIDERED FULL DISCLOSURE?

The meaning of full disclosure in the context of criminal cases depends on the particular case. However, when every relevant item in the Crown’s possession or control is disclosed to the accused that is usually considered full disclosure. The Crown’s disclosure obligation is to ensure that the accused has enough disclosed information about the case that they can reasonably make full answer and defence to charges they face. The disclosure should allow an accused to understand the nature and scope of the police investigation and the evidence that will be presented at court through the police or other witnesses.

In context of a domestic assault allegation the basic disclosure materials and records should include statements from the complainant and any witnesses to the assault, the investigating police officers notes about their observations and notes of the arrest, a police synopsis, any 911 calls, and any reports of prior domestic incidents. Also, any medical records of there were injuries from an aggravated assault or assault cause bodily hard. In the case of sexual assault there may results from a sexual assault kit that was performed. Often records from a rape crisis centres are sought by way of third party record applications.

The materials and records in the Crown’s possession refers to the Crown counsel prosecuting the criminal case and the police agency investigating the criminal code offences. It does not include every Crown entity that may have information or record about the accused or the matter. Also, in some cases, the records that are in the possession of the police are not necessarily under the control or possession of the Crown.

HOW DO YOU GET DISCLOSURE FROM THE CROWN?

While the Crown’s disclosure obligation is required by law, and they seldom ever deny an accused person access to the disclosure package, they do sometimes wait for the accused person or their defence counsel to formally request it. Every Crown Attorney’s operates slightly differently on when initial disclosure evidence is provided, whether its automatically given to the accused person or they wait until a formal request is made. Once disclosure is received often there will be items that are missing and a disclosure request will need to be made for that specific missing item of disclosure.

Rarely is all the first party disclosure evidence provided at once. Generally speaking Crown counsel makes honest attempts at providing as much disclosure as quick as possible. Often the records of arrest, the synopsis and some police officer notes are provided in the initial disclosure package. As other materials become available, such as forensic reports, medical records, ballistic reports, they will also be disclosed in subsequent disclosure packages.

Once complete disclosure evidence is received and reviewed it may become apparent that there are missing items. Defence counsel should write to the Crown counsel with carriage of the matter and request disclosure of these items. Sometimes it is as simple as that the items was overlooked or mistakenly not disclosed. Other times the particular item may not be in the control of police or was never collected during the police investigation, or even subsequently lost.

A criminal defence lawyer should make the disclosure request on behalf of their clients or raise the issue of missing disclosure items during their resolution discussions. Timely disclosure request are important to preserve the client’s rights and to ensure the evidence is not lost. There have been many instances in criminal trials that a lost piece of evidence, such as a security video that was not preserved by the police, would have made a difference in the determination of guilt or innocence.

DIGITAL DISCLOSURE HUB IN ONTARIO

The onset of the Covid-19 pandemic has caused Courts, the Crown’s office and many criminal law firms and other actors in the Ontario justice system to adjust their daily operations. No longer are criminal lawyers attending court to collect disclosure in paper format from the Crown counsel. Now, much of the disclosure being provided to the accused person in Ontario is done electronic format through the Digital Disclosure Hub being administered by the Attorney General of Ontario.

The Digital Disclosure Hub is a portal that allows criminal defence lawyers to obtain disclosure through an online portal. Lawyers are notified when their client’s disclosure is initially uploaded to the portal and whenever additional disclosure is added. Self represented accused persons are also able to access the portal and the Hub allows reviewing disclosure to be done online. The disclosure is provided in a web based format which allows it to be downloaded and reviewed access various electronic devices.

WHEN IS DISCLOSURE PROVIDED?

Disclosure should be provided at the earliest opportunity to the accused. The sooner it is provided the sooner that they will be able to make an informed decision on how they wish to proceed with the criminal offence that they are facing. Providing full disclosure allows the accused person to make full answer and defence on how they wish to proceed through the criminal justice system. It allows criminal lawyers to advise their client’s early in the process if they should consider guilty plea, schedule a preliminary hearing, or proceed to trial and allow a trial judge to determine the case.

The Crown’s office makes the best efforts to have some initial disclosure available on or just before the first court appearance. Its not likely that complete disclosure will be available but for minor criminal charges there should be enough to start the process of reviewing disclosure and assessing what will be required to make full answer and defence.

However, the entitlement to disclosure is not absolute and unlimited. The Crown has very limited discretion to withhold evidence or to delay disclosure to protect the integrity of an ongoing investigation or for the protection of witnesses.

The timing of disclosure for more complicated criminal charges, such as homicides and complex fraud investigations, that engage more serious criminal charges, and may still have an ongoing investigation, could require anywhere from 4 to 6 months to receive initial disclosure.

There are no fixed rules as what to timely disclosure is. Crown counsel understands its their duty to disclose all relevant information to ensure that the trial process is fair, and their disclosure obligation is ongoing throughout the trial process, appeal process and continues even the criminal matters are concluded.

Disclosure is generally required by the defence counsel to move a matter along. Without meaningful disclosure counsel cannot have pre-trial meetings with the Crown or a Judge and cannot schedule trial dates.

CAN CROWN DISCLOSURE BE USED IN ANOTHER PROCEEDING?

The question of whether Crown disclosure can be used in other proceeding, usually civil proceedings, is often a concern for accused persons. There are many instances that once the criminal process is completed that either civil law suit may follow or proceeding in family court are commenced.

The disclosure package is provided to the accused to make full answer and defence with respect to the criminal offence that they are facing. It is provided to be used in the criminal process and not intended for accused persons to use it in other proceedings.

In circumstance when the accused wants to use disclosure in other proceedings the must first bring a a Wagg Motion and obtain a court order.

WHAT HAPPENS IF THE CROWN DOES NOT PROVIDE DISCLOSURE?

Counsel for the accused should make attempts to obtain all relevant materials before setting trial dates. There are always circumstances were there is a reasonable possibility that missing disclosure evidence will become available after trial dates are scheduled. It is common practice for the police not to submit certain seized items for expensive forensic testing until its clear that a matter is proceeding to trial prosecuting Crown’s inability to provide disclosure. However, when disclosure issues arise the matter should be addressed before a judge in a court of competent jurisdiction.

A preliminary hearing Judge has no authority to order a Crown counsel to provide disclosure. Only a trial judge or court that has jurisdiction can make such an order. When determining disclosure issues the judge must first establish if there are any exceptional circumstances surrounding disclosure. Is it a matter that the Crown does not want to provide disclosure or cannot provide because of an exception. Or, is it is a matter that the Crown does not control the disclosure or it has been lost. The judge must first establish if there is a violation of the right to disclosure.

If a judge determines there was a violation of the Crown obligation to disclose evidence then the accused must demonstrate, on a balance of probabilities, that their section 7 Charter right to make full answer and defence was impaired as a result of the failure to provide disclosure. And that there was a reasonable possibility that the non disclosure affected the outcome at the trial or the overall fairness of the criminal trial process.

The remedy for lost evidence or the Crown breaching their disclosure obligations could result in a Charter violation and the Court having to dismiss the charges.