MCNEIL is meant to be a response to the fact that some documents, although not in the hands of the Crown and therefore not subject to Stinchcombe disclosure, ought obviously to be provided to the accused and certainly would be if an O’Connor application were brought. MCNEIL is intended to simplify the process for producing such records to the accused. In such cases (that is, where the Crown becomes aware of potentially relevant records in the hands of a third party) the Crown has a duty to inquire and obtain the evidence, rather than require the accused to pursue an O’Connor application.144The decision specifically lists some such types of evidence, but also lays down general rules around this new duty for the Crown.
The particular records in issue in MCNEIL were police disciplinary records and criminal investigation files relating to the main police witness. The Court rejected the suggestion that all state authorities, or even just the police and prosecutors, were indivisible for disclosure purposes. That assumption, it held, would require the Crown to make inquiries of every federal and provincial government department as well as every police force to see whether it might have relevant information. That does not mean, however, that the Crown can merely be passive. Rather, when aware of relevant information that it could obtain the Crown has a duty to seek it out.
In addition, the police have a corollary duty to disclose disciplinary records which could be relevant to the Crown, so that they can form part of the first-party disclosure package. The Court specifically listed five types of records which fell within this police duty:
Any conviction or finding of guilt under the Canadian Criminal Code or under the Controlled Drugs and Substances Act for which a pardon has not been granted;
Any outstanding charges under the Canadian Criminal Code or the Controlled Drugs and Substances Act;
Any conviction or finding of guilt under any other federal or provincial statute;
Any finding of guilt for misconduct after a hearing under the Police Services Act or its predecessor Act;
Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.145This list is usually referred to as the "Ferguson five." Records such as these ought to be provided by the Crown without prompting, though the officer concerned ought to be given notice of the intention to disclose and to have the...