Disclosure and Production

• Author: Steve Coughlan
• Pages: 345-386

345

CHA PTER 8

DISCLOSURE AND

PRODUCTION

A. INTRODUC TION

For many years, no effective right to disclosure of the Crown’s case

existed in Can ada. Practice with regard to di sclosure varied from court

to court, and even from prosecutor to prosecutor. Despite calls for com-

prehensive disclosure schemes from the Law Reform Commission of

Canada,1 no statutory scheme was i ntroduced. The problems that could

arise from non-dis closure were made dramatically clear in the investiga-

tion of the wrongful conviction of Donald Mar shall Jr, leading that Royal

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

terms, that state of af fairs 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 Crow n’s case.3 The exact contours of this

right have continued to be developed in subsequent caselaw, although

Stinchcombe remains the leading ca se establishing the general principle.

1 Law Reform Comm ission of Canada, Discover y in Criminal Cases (Ottawa: Law

Reform Commi ssion of Canada, 1974), and Disclosure by the Prosecuti on (Ottawa:

Law Reform Comm ission of Canada, 1984).

2 Nova Scotia, Royal C ommission on the Donald Mar shall, Jr, Prosecution, Com-

missioners’ Rep ort: Findings and Recommendat ions, vol 1 (Halifax: Royal Com-

mission on the Don ald Marshall, Jr, Prosecution , 1989).

3 [1991] 3 SCR 326 [Stinchcombe].

CRIMIN AL PROCEDURE

346

The Supreme Court has summari zed the current state of affa irs with

regard to disclosure:

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” broa dly.4

As the law has subsequently developed, however, other schemes

governing when the accused is ent itled to have access to particula r types

of materi al have developed. Stinchcombe established a regime concern-

ing “disclosure” that governs the Crown’s first party obligation to give

to the accused material in its possession. Subsequently, the Court was

called upon to consider in what circum stances an accused ought to be

entitled to material t hat is in the hands of third part ies, rather than the

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

two regimes: the Court in itially created rules a round disclosure with

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

has been displaced by a statutory one. That statutory scheme is some-

times referred to as t he “Mills Regime,” after the case that found the

provisions constit utional.6 Finally, with its decision in R v McNeil t he

Court laid down rules that it characterized as a means of “bridging the

gap between first part y disclosure and third party production.”7

Chronologically these var ious schemes each developed as a response

to the state of the law at the time, addre ssing new issues as t hey arose.

Looking at where the law has arrived, however, there are functionally

two situations: first par ty disclosure of materi al that either is or should

be in the hands of the Crown, and third part y production of material

in the hands of other par ties (where special considerations apply to rec-

ords in sexual offence prosecutions). As the Court has put it:

4 R v Taillefer; R v Duguay, 2003 SCC 70 at para 59 [Tail lef er] [page refe rences

omitted].

5 [1995] 4 SCR 411 [O’Connor].

6 R v Mills, [1999] 3 SCR 668 [Mills].

7 2009 SCC 3 [McNeil].

Disclosure and Production 347

to determine which reg ime is applicable, one should consider: (1)

Is the informat ion that is sought in the pos session or control of the

prosecuting Crow n? and (2) Is the nature of the i nformation sought

such that the police or anot her Crown entity in pos session or con-

trol of the informat ion ought to have supplied it to the prosecuting

Crown? This will b e the case if the i nformation can be qua lified as

being part of the f ruits of the investigation or obviously releva nt. An

affirm ative answer to either of the se questions wil l call for the appli-

cation of the first pa rty disclosure regime. O therwise, the th ird party

disclosure reg ime applies.8

That amounts to saying th at the first and last schemes cre ated, the

Stinchcombe and McNeil regimes, deal w ith disclosure, while the O’Con-

nor and Mills regi mes deal with production. This chapter will, however,

discuss the development of each of the different schemes chronologic-

ally, because doing so makes clearer how each i s a response to what

had gone before.

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.9 It pointed out that the Crown’s role is not

to obtain a conviction but to lay all relevant evidence before the court.

Any information in the ha nds 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 sug gestion that Crown

workloads would be increased by an obligation to disclose. It noted, as

the Law Reform Commis sion studies found, that increased di sclosure

leads to an increase in cases settled, guilty pleas entered, and charges

withdrawn, t hereby decreasing Crown and court workloads. The Court

acknowledged that some risk to informers m ay come from disclosure,

but determined that thi s affects only the manner and timing of dis-

closure, not the general principle. The Court also acknowledged that

disclosure may allow an accused to tailor a defence to anticipate the

8 R v Gubbins, 2018 SCC 44 at para 33 [Gubbins].

9 For an explanation of th is issue in chart form, s ee Steve Coughlan & Alex Gor-

lewski, The Anatomy of Crimin al Procedure: A Visual Guide to the Law (Toron to:

Irwin L aw, 2019) [Anatomy of Criminal Procedure], Chart 2.3(a), “Disclosure.”