Disclosure and Production
| Author | Steve Coughlan |
| Profession | Professor of Law. Dalhousie University |
| Pages | 254-290 |
254
CHA PTER 8
DISCLOSURE AND
PRODUCTION
A. INTRODUC TION
For many years, no effective right to dis closure of the Crown’s case existed
in Canada. Pract ice with regard to disclosure varied f rom court to court,
and even from prosecutor to prosecutor. Despite calls for comprehensive
disclosure schemes from t he Law Reform Commission of Canada,1 no
statutory scheme was introduced. The problems that could ar ise from non-
disclosure were made dra matically clear in the investigation of the wrong-
ful conviction of Donald Marshal l Jr, leading that Royal Commission to
point to the need for consistent disclosure.2 In general terms, that state of
affairs changed in 1991 with the Supreme Court of Canada decision in R
v Stinchcombe, which concluded that an accused person had a right, under
section 7 of the Canadian Charter of Rights and Freedoms, to disclosure
of the Crown’s case.3 The exact contours of this right have continued
to be developed in subsequent caselaw, although Stinchcombe remains
the leading case e stablishing the general principle. The Supreme Court
has summar ized the current state of affairs with regard to disclosure:
1 Law Reform Comm ission of Canada, Discover y in Criminal Cases (Ottawa: Law
Reform Commi ssion of Canada, 1974), and Disclosure by the Prosecut ion (Ot-
tawa: Law Refor m Commission of Canada , 1984).
2 Nova Scotia, Roya l Commission on the Donald Ma rshall, Jr, Prosecution, Com-
missioners’ Rep ort: Findings and Recommendat ions, vol 1 (Halifax: Royal C om-
mission on the Don ald Marshall, Jr, Prosecution , 1989).
Disclosure and Production 255
The Crown must disclos e all relevant informat ion to the accused,
whether inculpatory or exc ulpatory, subject to the exercise of the
Crown’s discretion to refu se to disclose informat ion that is privileged
or plainly irre levant. Relevance must be ass essed in relation bot h to
the charge itsel f and to the reasonably possible defence s. The relevant
information must be d isclosed whether or not the Crow n intends to
introduce it in evidence, be fore election or plea. Moreover, all state-
ments obtained f rom persons who have provided relevant i nforma-
tion to the authorities should b e produced notwithstanding t hat they
are not proposed as Crown w itnesses. Thi s Court has also de fined
the concept of “relevance” broadly . . . .4
As the law has subsequently developed, however, other schemes
governing when the accused is entitled to have access to particular
types of mater ial have developed. Stinchcombe established a regime
concerning “disclosure” that governs t he Crown’s first party obliga-
tion to give to the accused materi al in its possession. Subsequently, the
Court was called upon to consider in what ci rcumstances an accused
ought to be entitled to material that is in the hands of th ird parties, not
the Crown, which is referred to a s “production.” Production is gov-
erned by two regimes: the Court initially created r ules around disclo-
sure with its decision in R v O’Connor,5 but in many circumstance s, that
scheme has been dis placed by a statutory one. That statutory sc heme is
sometimes referred to as the “Mills Regime,” after the case that found
the provisions constitutional.6 Finally, with its decision in R v McNeil
the Court laid down rules that it characteri zed as a means of “bridg-
ing the gap between first par ty disclosure and third part y production.”7
This chapter will consider all of these regimes.
B. DIS CLOSUR E
1) Creation of the Right: R v Stinchcombe
In Stinchcombe, the Court found a duty on the part of the Crown to dis-
close its evidence to the accused. The Court rejected a number of argu-
ments against disclosure. It pointed out that the Crown’s role is not to
obtain a conviction but to lay all relevant evidence before the court. Any
4 R v Taillefer; R v Duguay, 2003 SCC 70 at para 59 [Tail le fer ] [page references omitted].
6 R v Mills, [1999] 3 SCR 668 [Mills].
CRIMIN AL PROCEDURE256
information in the hands of the Crown is therefore not a tool to convict
the accused, but the property of the public to be used to ensure that
justice is done. The Court also rejected the suggest ion that Crown work-
loads would be increased by an obligation to di sclose. It noted, as the
Law Reform Commission studies found, that increased dis closure leads
to an increase in cases settled, guilty pleas entered, and charges with-
drawn, thereby decrea sing Crown and court workloads. The Court ac-
knowledged that some risk to informers m ay come from disclosure, but
determined that th is affects only the man ner and timing of disclosure,
not the general principle. The Court also acknowledged that di sclosure
may allow an accused to tailor a defence to anticipate the prosecution’s
case, but held, nonetheless, that fair ness to the accused requires that the
accused see the evidence in adva nce.
This latter point is the most import ant in the Court’s reasoning. Al-
though policy arguments led them to conclude that routine di sclosure is
a desirable feature of the crim inal justice system, it is the Ch arter, and in
particular, the accused’s right under section 7 to make full answer and
defence, that is the mechani sm by which that end is achieved. The Court
concludes that “there is a general duty on the part of t he Crown to disclose
all material it propose s to use at trial and especially all evidence which
may assist the accu sed even if the Crown does not propose to adduce it.”8
The fact that this right i s guaranteed by the Char ter has been sig-
nificant in much of the Court’s later reasoning. For example, it means
that the right potentially has application in any context where section
7 applies, not simply in domestic trials. In Canada v Khadr the Court
found that the applicant (who was detained by the United States in
Guantanamo Bay but had been interrogated there by Canadian offi-
cials) was entitled to disclosure of the material gathered by Can ada.
The more difficult issue was whether the Char ter applied at all given
the extraterr itorial nature of the investigation. Once it was found that
it did, however, section 7 imposed a disclosure obligation.9
2) Structure of the Right
First, the structure of the right as set out in Stinchcombe should be
described. Whether ev idence appears to be inculpatory or exculpatory
8 Stinchcombe, above note 3 at 338, quoting from R v C(MH) (1988), 46 CCC
(3d) 142 (BCCA). See the dis cussion of Canada (Justice) v Khadr, 2008 SCC 28
[Khadr] in Chapter 3, Section B(2)(a).
9 Khadr, ibid. The Court also held at para 32 that the s cope of that disclosure
might differ f rom that in a domestic tria l and would depend on the nature of
Canadia n authorities’ involvement.
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