7. Protection of Third-Person Records in Criminal Cases
| Author | David M. Paciocco - Lee Stuesser |
| Profession | Justice of the Ontario Court of Justice - Professor of Law, Bond University |
| Pages | 259-269 |
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In criminal cases, the Crown has a duty to turn over to the defence all relevant information in its possession. Third parties are under no such duty. The accused must apply to the court for the production of third-party records. In sexual offence cases, there is a special legislated procedure the accused must comply with before the trial judge orders a complainant or witness to produce specified records to the accused. If the records have already been turned over to the Crown, they are not to be disclosed to the accused unless the
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complainant or witness waives their protection or the trial judge orders production.
In a criminal case, the Crown is obliged to disclose to the accused all relevant information that it has in its possession. In the words of Justice Sopinka, "the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done."160The threshold of "relevancy" for Crown disclosure is low; if the information is of some use to the defence, then it should be disclosed. The duty to disclose is triggered by a request and does not require an application to the court.161The broad duty of disclosure is premised on two assumptions: (1) that the material in possession of the prosecuting Crown is relevant to the accused’s case and (2) that this material will likely comprise the case against the accused. The accused, therefore, has a prevailing interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence.162This does not mean that all information that the Crown has must be turned over. The Crown has a discretion to refuse to make disclosure on the grounds that the information sought is clearly irrelevant, privileged or its disclosure is governed by law. Where the Crown exercises this discretion, the Crown bears the burden of satisfying the trial judge that the information is privileged or irrelevant. Any privilege claimed, however, cannot unduly limit the right of the accused to make full answer and defence. In fact, information in the possession of the Crown that is clearly relevant and important to the ability of the accused to raise a defence must be disclosed to the accused, regardless of any potential claim of privilege.163The Crown’s obligation to disclose to the accused all relevant information applies only to information in the possession or control of the prosecution. In short, "the law cannot impose an obligation on the Crown to disclose material which it does not have or cannot obtain."164
The disclosure regime attaches to the prosecuting entity; it does not attach to the "Crown" as a whole and other non-involved state agencies or departments.165The police, although separate and distinct in law from
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the "Crown," have a corollary duty to disclose to the Crown all relevant information in their possession. In this way, for disclosure purposes the police and Crown are to be regarded as one.166Prior to R. v. McNeil the corollary duty on the police applied solely to the "fruits of the investigation" -things discovered or collected by the police while investigating the offence. In R. v. McNeil the Supreme Court of Canada extended the reach of this "first party" or Stinchcombe disclosure. McNeil was charged and convicted of multiple drug charges. The arresting officer was the Crown’s main witness. Prior to sentencing, the accused learned that the arresting officer was facing disciplinary proceedings and criminal charges involving drug-related misconduct on another occasion. The accused sought production of all documents related to the officer’s misconduct. The Crown argued that these records were not the "fruits of the investigation" and that to secure them McNeil would have to meet the O’Connor test for the disclosure of "third-party" records. The Court reasoned that where the Crown or the police are aware that relevant information exists, they should secure it as part of the investigation. Where police misconduct records of officers playing a material role in an investigation are either related to or could reasonably impact on the case against the accused, then they should be retrieved and treated as "first-party" information and disclosed in accordance with the obligations under Stinchcombe. Accordingly, when put on notice of potentially relevant information, Crown counsel are under a "duty to inquire" and obtain the information if it is reasonably feasible to do so.167The scope of "duty to inquire" has yet to be fleshed out. It certainly applies to government records. However, Justice Doherty in R. v. Dar-wish outlined the following parameters:168· an accused does not have a freestanding constitutional right to an adequate investigation of the charges against him or her;
· an accused also does not have a constitutional right to direct the conduct of the criminal investigation of which he or she is the target;
· nor does the disclosure right, as broad as that right is, extend so far as to require the police to investigate potential defences.
Another area of uncertainty concerns the Crown counsel’s own "work product" - notes, memoranda, research, observations, and interview records prepared in anticipation of trial. For example, in R. v.
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Bernardo, the Crown was required to turn over to the defence information on the details and negotiations that took place between the Crown and Karla Homolka, which led to her famous (or infamous) plea bargain and partial grant of immunity.169The information that needs to be disclosed will certainly depend upon the issues in the case; however, one helpful distinction is to differentiate matters of opinion, such as trial strategy, which would be exempt from disclosure, from matters of fact, such as witness statements, which would need to be disclosed.170Different considerations apply to information in the hands of third parties. These people are strangers to the prosecution and are under no duty to assist the defence-hence the distinction between "first-party" and "third-party" disclosure. Third-party production, unlike Crown disclosure, requires a weighing of competing rights. The accused’s right to make full answer and defence must be weighed against the third party’s right to privacy. Moreover, requests for production are most commonly raised in sexual offence prosecutions and pertain to information about the complainants, which may be highly personal. These requests raise fundamental concerns about our traditional notions of relevancy, trial fairness, and equality under the law. The law has evolved to the point where there are two regimes for third-party production in criminal cases, the statutory regime in sections 278.1 to 278.91 of the Criminal Code which applies in sexual offence cases, and the regime in R. v. O’Connor which applies in other cases.171O’Connor involved a sexual offence prosecution, but provoked the passage of sections 278.1 to 278.91, which has limited its application.
R. v. O’Connor was the first attempt by the Supreme Court of Canada to strike a balance between an accused’s right to full answer and defence and a third party’s right to privacy.172 O’Connor was a former Roman Catholic priest charged with sexual offences committed against former students. The defence sought disclosure of the complainants’ entire medical, counselling, and school records. At the time the prosecution did not have any of these records.
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The O’Connor Court used constitutional principles to develop a two-step procedure for production of third-party records. In step 1, the accused must convince the trial judge that the information sought is "likely to be relevant." This threshold of proof was termed "significant" but not "onerous." The relevance threshold at this stage was set simply to prevent the defence from engaging in speculative fishing expeditions. "Likely relevant" under O’Connor means that there is "a reasonable possibility that the information is logically...
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