For many years, no effective right to disclosure of the Crown’s case existed in Canada. Practice with regard to disclosure varied from court to court, and even from prosecutor to prosecutor. Despite calls for comprehensive disclosure schemes from the Law Reform Commission of Canada1no statutory scheme was introduced. The problems that could arise from non-disclosure were made dramatically clear in the investigation of the wrongful conviction of Donald Marshall, Jr., leading that Royal Commission to point to the need for consistent disclosure.2In 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.3The exact contours of this right have continued to be developed in subsequent caselaw, although Stinchcombe remains the leading case establishing
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 refuse to disclose information that is privileged or plainly irrelevant. Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences. The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea. Moreover, all statements obtained from persons who have provided relevant information to the authorities should be produced notwithstanding that they are not proposed as Crown witnesses. This Court has also defined the concept of "relevance" broadly . . . .4As the law has subsequently developed, however, other schemes governing when the accused is entitled to have access to particular types 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 material 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,5but in...