Disclosure and Production
| Author | Steve Coughlan |
| Pages | 216-252 |
216
CHA PTER 8
DISCLOSURE AND
PRODUC TION
A. INT RODUC TION
For many years, no effective right to disclosure of the Crown’s case
existed in Can ada. Practice with regard to disclosure var ied from court
to court, and even from prosecutor to prosecutor. Despite calls for com-
prehensive disclosure schemes from the Law Reform Commission of
Canada1 no statutory scheme wa s introduced. The problems that could
arise from non-disclosure were made dramatically clear in the investi-
gation of the wrongful conviction of Donald Marsha ll, Jr., leading that
Royal Commission to point to the need for consistent di sclosure.2 In
general terms, that st ate of affairs changed with the Supreme Court of
Canada decision in R. v. Stinchcombe in 1991, 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
casel aw, although Stinchcombe remains the leading case establishing
1 Law Reform Comm ission of Canada, Discove ry in Criminal Cases (Ottawa: Law
Reform Commi ssion of Canada, 1974), and Disclosure by the Prosecutio n (Ot-
tawa: Law Refor m Commission of Canada , 1984).
2 Royal Commi ssion on the Donald Marshal l, Jr. Prosecution, Ro yal Commission
on the Donald Marshall, Jr. Prosecution, Fin dings and Recommendation s, vol. 1
(Halifax : The Commission, 1989).
3 R. v. Stinchcombe, [1991] 3 S.C.R. 326 [Stinchcombe].
Disclosure a nd Production 217
the general principle. The Court has summ arized the cur rent state of
affairs w ith regard to disclosure:
The Crown must disclos e all relevant informat ion to the accused,
whether inculpatory or excu lpatory, 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 Crown i ntends 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 defi ned
the concept of “relevance” broadly . . . .4
As the law has sub sequently developed, however, other schemes gov-
erning when the accused i s entitled to have access to particular t ypes of
materi al have develop ed. Stinchcombe established a regime concerning
“disclosure” that governs the Crown’s obligation to give to the accused
material in its possession. Subsequently the Court was called upon to
consider in what circumsta nces an accused ought to be entitled to ma-
terial which is in t he hands of third par ties, not the Crown, a context
which is referred to as “production.” Production is actually governed by
two regimes: the Court initially created rules a round disclosure with
its decision in R. v. O’Connor,5 but in many circumstance s that scheme
has been displaced by a statutory one. Finally with its decision in R. v.
McNeil the Court laid down rules which it character ized as a means of
“bridging the gap between first party disclosure and third party production.”6
This chapter will consider all of these regimes.
B. DISCLOSURE
1) Creation of the Right: R. v. Stinchcombe
In Stinchcombe, the Court found a duty on the part of the Crown to
disclose its evidence to the accused. The Court rejected a number of
arguments against d isclosure. It pointed out that the Crown’s role is
not to obtain a conviction but to lay all relevant evidence before the
4 R. v. Taillefer, 2003 SCC 70 at para. 59 [page references om itted] [Tail le fer ].
5 R . v. O’Connor, [1995] 4 S.C.R. 411 [O’Connor].
6 R. v. McNeil , 2009 SCC 3 [McNeil].
CRIMIN AL PROCEDURE
218
court. Any 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 suggestion
that Crown workloads would be increas ed by an obligation to disclose.
It noted, as the Law Reform Commission studies found, that increased
disclosure actual ly leads to an increase in c ases settled, guilt y pleas
entered, and charges withd rawn, thereby decreasing Crow n and court
workloads. The Court acknowledged that some risk to informers may
come from disclosure, but determined that this only affects the ma n-
ner and timing of disclosure, not the general principle. The Court also
acknowledged that disclosure may allow an accused to tailor a defence
to anticipate the prosecution’s case, but held, nonetheless, that fairne ss
to the accused requires t hat the accused see the evidence in advance.
This latter point is the most import ant in the Court’s reasoning. Al-
though policy arguments lead t hem to conclude that routine disclosure
is a desirable feature of the cri minal justice system, it is t he Charter,
and in particular the accused’s right under section 7 to make full a n-
swer and defence, that is the mechanism by which that end is achieved.
The Court concludes that “there is a general duty on the part of the
Crown to disclose all material it proposes to use at tr ial and especially
all evidence which may assist the accused even if the Crown doe s not
propose to adduce it.”7
The fact that this right i s guaranteed by the Char ter has been sig-
nificant in much of the Court’s later reasoni ng. 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 U.S. in Guantanamo
Bay but had been interrogated there by Can adian officials) was entitled
to disclosure of the material gathered by Canada. The more difficult
issue was whether the Charter applied at all given the extraterr itorial
nature of the investigation. Once it was found that it did, however, sec-
tion 7 imposed a disclosure obligation.8
7 Stinchcombe, above note 3 at 338, quoting from R. v. C.(M.H.) (1988), 46 C.C.C.
(3d) 142 ( B.C.C.A.).
8 Canada (Justice) v. Khadr, 2008 SCC 28. The Court al so held at para. 32 that the
scope of that di sclosure might differ from t hat in a domestic tria l, and would
depend on the natu re of Canadian authoritie s’ involvement.
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