Types of Disclosable Materials

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General Principles

There is no constitutional obligation to "production of documentary originals".[1] Simply providing access to originals for inspection is sufficient.[2]

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

Right of accused
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.[3]

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. [4]

It is defence counsel's obligation to ensure that the accused has been given an opportunity to review any recordings.[5]

The phrase " his own statement" includes both unsworn statements given at the preliminary inquiry as well as statements given to the police.[6] It will include statements made by the accused at the time of arrest.[7] However, it does not include any statement ever taken of the accused.[8]

A judge has the power to order the disclosure of any statements or documents in order to ensure "fundamental fairness to the accused".[9]

  1. R v Stinchcombe, [1995] 1 SCR 754, 1995 CanLII 130 (SCC), at paras 1 to 2
    R v Blencowe, 1997 CanLII 12287 (ON SC) per Watt J.
  2. Blencowe, ibid.
    Stinchombe (1995), supra
  3. R v Stinchombe, 1991 CanLII 45, [1991] 3 SCR 326 at para 30
  4. R v Beauchamp, 2008 CanLII 27481 (ON SC)
  5. R v M.R.W. at para 27, 28
    see also s. 10 of CEA
  6. R v Savion, [1980] OJ No. 580 (CA), 52 CCC (2d) 276(*no link) at para 25
  7. R v Hieng, 2011 ONSC 4245 (CanLII)
  8. Hieng
  9. Re Regina and Arviv, 1985 CanLII 161 (ON CA)

Format of Disclosure

Disclosure must be in a reasonably "workable" format.

In evaluating the reasonableness of the format consideration must be taken where the accused is in custody.[1]

The remand facility must have the equipment to facilitate access to disclosure.[2]

  1. R v Therrien, 2005 BCSC 592 (CanLII) (custody "is an important circumstance to consider when assessing the reasonableness with which he can access the disclosed material.")
  2. R v Chan, [2003] AJ No 1117(*no link) - remand facility must buy computer to let accused listen to wiretap recording on CD-ROM
    See also: R v Cheung, 2000 ABPC 86 (CanLII), [2000] AJ No 704 (ABPC) and R v Grant, [2003] MJ No 382 (MBQB)

Electronic and Paper Form

The accused is not entitled to disclosure in their form of choice. It is in the discretion of the Crown what form it will take. This discretion is reviewable.[1] The main reviewable element of disclosure is whether it is "reasonably accessible" and can include whether electronic disclosure was "organized and searchable".[2] Reasonableness must take into account the circumstances and abilities of the particular accused and counsel.[3]

Where form of disclosure is "such that an accused person is unable to access the information, then it is not meaningful disclosure.".[4]

The "greater the volume of material disclosed, the greater the need for organization and reasonable search capabilities".[5]

The mere absence of computer skills of the accused or counsel will not prevent the use of electronic disclosure so long as the skills are "acquired relative easily".[6]

There is no absolute right to original documents, however, the Crown must explain if the Crown no longer has possession of it. Lost or destroyed documents due to unacceptable negligence will breach the duty to disclose.[7]

There is unlikely merit to suggest that the disclosure should accommodate counsel who is computer illiterate.[8]

When electronic disclosure becomes particularly voluminous, there is an obligation to provide a meaningful index.[9]

  1. R v Beckett, 2014 BCSC 731 (CanLII), at para 8
    c.f. R v Hallstone Products, 1999 CanLII 15107 (ONSC) - suggests disclosure requires paper copy, likely not relevant given the change in technology
  2. Beckett
    R v Dunn, 2009 CanLII 75397 (ON SC) - ("form of disclosure must be accessible and adequate to enable an accused to exercise his or her constitutional right to make full answer and defence") and para 55
  3. Beckett
  4. Dunn at para 53
  5. Dunn at para 59
  6. Beckett
  7. R v F.C.B., 2000 NSCA 35 (CanLII), at para 10
    see Lost or Destroyed Evidence
  8. R v Rose, [2002] QJ 8339 at paras 13 to 14 per Martin J.
    R v Jonsson, [2000] SJ No 571 (SKQB)
  9. R v Jarvie, [2003] OJ No 5570 (ONSC)
    R v Barges, [2005] OJ No 4137 (ONSC)

Tools and Equipment to Examine Evidence

The crown does not necessarily have to provide the proper software necessary to examine evidence. Software is not "information" and so does not have to be disclosed.[1]

The Crown does not need to pay for the necessary training required to use the software either.[2]

  1. R v Cox, 2003 ABQB 212 (CanLII) at para 15 - Crown does not need to provide copy of EnCase forensic software to defence
    R v Radwanski, 2006 CanLII 43496 (ON SC)
  2. Radwanski - judge rules no need to give software or training when they could attend the RCMP station and use the police copy

Typical Elements of a Disclosure Package

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 narrative 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
  14. Computer Aided Dispatch (CAD) printouts of the log of all dispatch activities[1]
  15. recordings of dispatch communications
  1. e.g. see R v Holowaychuk, 2013 ABPC 38 (CanLII) at para 20 to 22

Specific Disclosable Materials

Can Says

There is no disclosure obligations to obtain and disclose a can-say for a witness who is uncooperative in giving a statement.[1]

All witness statements obtained must be disclosed even if they are not going to be witnesses called by the Crown.[2]

Where there are no statements, other information about the witness, including police notes and records concerning the witness, address and occupation, should be disclosed.[3]

  1. Ministry of Labour v C.S. Bachly Builders Limited et al., 2007 ONCJ 120 (CanLII) at para 51
  2. Stinchcombe at p. 344
  3. Stinchcombe, supra, at p. 344

Crown Notes

The Crown has an obligation to disclose new information, including inconsistencies in statements, that it learns from pre-trial interviews.[1]

Any Crown notes that relate to opinion or analysis are not disclosable.[2]

Notes of the Crown may be subject to solicitor-client privilege and work product privilege.[3] The burden is upon the Crown to establish that the privilege exists.[4]

Investigative statements taken by the Crown must be disclosed.[5] It should normally be in written form but if time does not permit it should be done in writing and followed up in writing.[6] Disclosing Crown notes may be dangerous as they are often only intended to be an aide memoire and not an accurate rendition of facts. This could be used unfairly at trial.[7]

A peace officer or secretary will usually sit in on meetings with witnesses and take any new statements.[8]

Defence have the burden to prove that the notes exist and are likely relevant.[9] If established, the Crown then has the burden to establish the justification for not disclosing the notes.

  1. R v O'Connor, [1995] R v Armstrong, 2005 CanLII 63811 (ON SC)
  2. Armstrong
  3. R v Brown, [1997] OJ No 6163
  4. Brown, supra
  5. R v Regan (1997), 174 NSR (2d) 72 (SC) at para 23
  6. Regan, supra
  7. R v Johal, 1995 CanLII 2426 (BCSC)
  8. E.g. R v Lalo, [2002] NSJ No 3432 (SC)
    R v Johal, [1995] BCJ No 1271 - will say statement produced by third party used to avoid crown being witness
  9. R v Chaplin

Contact Information of Witnesses

Witholding contact information of crown witnesses is in the discretion of the Crown.[1]

The contact information of crown witnesses can be withheld for specific security or privacy concerns.[2] This would include situations where threats have been made against witnesses.[3]

This must be balanced against the accused right to make full answer and defence which is enhanced by the ability to contact witness independently.[4]

Courts must still recognize the witnesses right to privacy, and so no party can force a witness to be interviewed.[5] Courts must also protect witnesses from "abusive, harassing, threatening or otherwise improper conduct and to protect witnesses against abusive treatment in and out of Court"[6]

It has been suggested that the following protocol be taken for allowing defence to access crown witnesses:[7]

  1. At the request of the defence, the Crown Attorney shall make available to the defence a room within the courthouse suitable for a confidential interview of the named witnesses by counsel of record;
  2. The interviews are to be strictly confidential; no Crown Attorney or police officer is to be present unless requested by the defence;
  3. The fact of an interview and any and all information obtained during it is to remain strictly confidential. No person, including the witness, the defence counsel, the accused and any other person present for any such interview may disclose any information relating to the interview except as may be necessary in the conduct of the trial itself.
  4. The named witnesses shall be written a letter jointly signed by all principal counsel of record advising them of the request of the defence to interview them at the courthouse. The letter is to advise the witnesses in the clearest of terms of the existence of this ruling and of the right of the accused to interview them subject to their right to decline to participate in any such interview - the decision is strictly theirs to make. Care is to be taken to ensure the witnesses are not left with the impression they should not grant the defence an interview. The letter is to convey to the witnesses that any such interview will be by the defence counsel of record without any police officer or Crown Attorney present. Moreover, they are to be informed of the order of the Court requiring all persons involved in the interview to maintain the confidentiality of the interview process strictly.
  1. R v Mearow et al, 2013 ONSC 1865 (CanLII) at para 25 citing the Martin Report
  2. e.g. R v Charlery,[2011] O.J. No. 2669 - required disclosure due to "general" not "specific" concerns
  3. R v Brown [1997] O.J No. 6165
  4. R v Mearow et al, 2013 ONSC 1865 (CanLII) at para 21
  5. Mearow at para 26
  6. Mearow at para 26
  7. Mearow at para 74

Source Handler Notes and Source Debriefing Reports

A police officer is assigned as an informer's "handler" who will typically create notes that detail the reliability of the informer, these are the debriefing notes, also known as source debriefing notes (SDRs).[1]

For the purpose of challenging a warrant, the right to full answer and defence only requires that the materials provided to the authorizing justice be made available.[2]

Judges must be "exceedingly cautious" if they engage in editing out information that might disclose a confidential informer as inocuous information may reveal the person's identity.[3] Accordingly, judges should give a great amount of deference to the editing suggested by Crown and investigators.[4]

There is some authority suggesting that there is blanket informer privilege over all SDR and SHN.[5]

  1. R v Barzal, 1993 CanLII 867 (BC CA), (1993) 84 CCC (3d) 289 (BCCA)
    see also R v Croft, 2013 ABQB 705 (CanLII)
  2. Barzal at para 44
  3. R v Leipert, 1996 CanLII 471 (BCCA) at para 35
  4. R v Steeves, 2004 NBQB 039 at para 23
  5. R v Omar, 2007 ONCA 117 (CanLII) at para 38 to 43
    R v Tingley, 2010 NBQB 284
    c.f. R v Way, 2014 NSSC 180 (CanLII),

Preparation of Transcripts

There is no obligation on the crown under s. 10 of the Evidence Act to prepare a transcript of a K.G.B. statement for the purpose of cross-examination.[1]

The request for a transcript takes issue with the form in which the disclosure was provided.[2]

If the Crown obtains a transcript of a defence expert's testimony from a previous hearing that is relevant to the trial it must be disclosed.[3]

  1. R v MRW, 2013 ABCA 56 (CanLII) at paras 27, 29
  2. R v Burns, 2010 SKPC 6 (CanLII)
  3. R v L (SE), 2012 ABQB 71 (CanLII)
    See also Expert Evidence

Video Statements

See also: Crown Duty to Disclose

Child Pornographic Materials

See also: Child Pornography (Offence) and Crown Duty to Disclose#Child Pornography

Expert Evidence

See also: Expert Evidence

Under s. 657.3(3)(c), the Defence must disclose a copy of their expert's report or a can-say of their expert witnesses no later than upon the closing of the Crown's case.

Either side intending to submit expert evidence must disclose "the expert's report and any materials which contributed to the foundation of the report or which are clearly relevant to the witness's credibility must be disclosed."[1]

  1. R v Friskie, 2001 CanLII 392 (SK PC) at para 27

List of Witnesses to be Called

The Crown does not need to disclose what witnesses will be called.[1]

  1. R v Pinkus, 1999 CanLII 15054 (ON SC), [1999] O.J. No. 5464 at para 7 to 9, 11 ("The decision whether to call a witness is solely within the discretion of the Crown. ...For the Court to order the Crown to inform defence as to whether a particular witness will be called would effectively trump Crown discretion.")

Records of Police Misconduct

Specific Non-Disclosable Materials

Any details on the Crown's review of the records including time, date and completeness of their review.[1]

  1. R v Black, 1998 CanLII 5042 (NS SC)