Disclosure and Production

• Author: Steve Coughlan
• Pages: 216-252

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CHAPTER 8

DISCLOSURE AND

PRODUCTION

A. INTRODUCTION

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 was introduced. The problems that could

arise from non-disclosure were made dramatically clear in the investi-

gation of the wrongful conviction of Donald Marshall, Jr., leading that

Royal Commission to point to the need for consistent disclosure.2 In

general terms, that state 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

caselaw, 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 Production217

the general principle. The Court has summarized the current state of

affairs with regard to disclosure:

The Crown must disclose all relevant information to the accused,

whether inculpatory or exculpatory, subject to the exercise of the

Crown’s discretion to refu se to disclose informat ion that is privileged

or plainly irrelevant. Relevance must be assessed in relation both to

the charge itsel f and to the reasonably possible defence s. The relevant

information must be disclosed whether or not the Crown intends to

introduce it in evidence, before election or plea. Moreover, all state-

ments obtained from persons who have provided relevant informa-

tion to the authorities should b e produced notwithstanding t hat they

are not proposed as Crown witnesses. This Court has also def‌ined

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

material have developed. 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 circumstances an accused ought to be entitled to ma-

terial which is in the hands of third parties, not the Crown, a context

which is referred to as “production.” Production is actually governed by

two regimes: the Court initially created rules around disclosure with

its decision in R. v. O’Connor,5 but in many circumstances that scheme

has been displaced by a statutory one. Finally with its decision in R. v.

McNeil the Court laid down rules which it characterized 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 disclosure. It pointed out that the Crown’s role is

not to obtain a conviction but to lay all relevant evidence before the

4R. v. Taillefer, 2003 SCC 70 at para. 59 [page references om itted] [Taillefer].

5R . v. O’Connor, [1995] 4 S.C.R. 411 [O’Connor].

6R. v. McNeil , 2009 SCC 3 [McNeil].

CRIMINAL PROCEDURE

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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 increased by an obligation to disclose.

It noted, as the Law Reform Commission studies found, that increased

disclosure actually leads to an increase in cases settled, guilty pleas

entered, and charges withdrawn, thereby decreasing Crown and court

workloads. The Court acknowledged that some risk to informers may

come from disclosure, but determined that this only affects the man-

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 that the accused see the evidence in advance.

This latter point is the most important in the Court’s reasoning. Al-

though policy arguments lead t hem to conclude that routine disclosure

is a desirable feature of the criminal justice system, it is the Charter,

and in particular the accused’s right under section 7 to make full an-

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 trial and especially

all evidence which may assist the accused even if the Crown does not

propose to adduce it.”7

The fact that this right is guaranteed by the Charter 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 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 extraterritorial

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.).

8Canada (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.