Disclosure Issues

• Author: Nathan Gorham/Jeremy Streeter/Breana Vandebeek
• Pages: 57-83



Disclosure

Issues

3

I. Introduction to the Disclosure Rule .......................... 

II. Disclosure of Condential Source Information ................. 

A. Claims of Informer Privilege ........................... 

B. Applicable Principles in Cases Involving Condential

Sources ........................................... 

C. The Pre-Trial Stage of a Prosecution ..................... 

D. Garofoli Steps  and  ............................... 

E. Cross-Examination of the Aant on the Garofoli

Application ........................................ 

F. Garofoli Step  ..................................... 

III. Contents of the Investigative File ............................ 

A. The Investigative File in Context ........................ 

B. Disclosure Rule of the Investigative File ................. 

C. What Typically Is and Is Not Part of the Investigative File ... 

© 2024 Emond Montgomery Publications. All Rights Reserved.

 Prosecuting and Defending Drug Cases

I. Introduction to the Disclosure Rule

The right to disclosure, under section 7 of the Charter, is now well settled and clear

in many ways. The prosecution must disclose to the defence all relevant evidence in

its possession, unless the evidence is privileged. The concept of relevance in this

context is not limited to evidence that the prosecution intends to rely on or even what

it believes will be helpful to the defence case. Rather, the prosecution must disclose

everything in its possession that is potentially relevant. Although this general rule is

straightforward, its application can be nuanced and complex in specific situations in

regard to drug prosecutions. This chapter examines three common disclosure issues

that arise frequently in drug prosecutions in Canada.

In Section II, the tension between confidential informer privilege and the

accused’s constitutional right to disclosure is addressed. Modern police services in

Canada rely heavily on confidential informants or sources1 as investigative tools to

form grounds to detain, arrest, or search an accused.2 In these cases, the tension

between informer privilege and disclosure exists from the early pre-trial stages of the

proceeding through to the trial. Throughout the process, it is the responsibility of

defence counsel to seek disclosure through various avenues and legal mechanisms,

while the prosecutor must strike the appropriate balance between protecting informer

privilege and ensuring a fair process.

Various issues related to disclosure in cases involving confidential informants are

then examined. We begin by setting the context necessary to understand the stages

ofthe criminal process where informer privilege and disclosure become the focus of

contest. We then set out the governing principles concerning informer privilege, the

right to disclosure, the use that can be made of an informant’s evidence, and

theGarofoli3 challenge process. Next is a discussion of the roles of both defence

andCrown counsel at the earliest stage of the criminal process, before a date for trial

has been set, followed by an examination of steps 1 and 2 of the Garofoli process. This

is the stage where the trial judge determines whether the prosecution has disclosed

sucient information to the defence in the course of a challenge to the warrant at

trial. Finally, we explore Garofoli steps 5 and 6, where the trial judge determines

whether the warrant can be sustained on the basis of either the edited or unedited

1 “Confidential informant” and “confidential source” will be used interchangeably in this chap-

ter to refer to the person who provides information to the police with the assurance of confi-

dentiality. The privilege itself will be referred to interchangeably as “informer privilege” and

“informant privilege.”

2 Canadian law recognizes other forms of privilege that limit the accused’s right to disclosure,

including observation post-privilege, public interest privilege, and other police investigation

privilege. This chapter focuses only on informer privilege because it is the most common type

of privilege asserted by the prosecution in drug cases.

3 Named for R v Garofoli, [1990] 2 SCR 1421, 1990 CanLII 52.

© 2024 Emond Montgomery Publications. All Rights Reserved.