Disclosure Reform - Consultation Paper

Disclosure Through Access

The constitutional right of an accused person to disclosure has normally been fulfilled by the Crown furnishing copies of the material. Given the wide scope of the concept of “relevant information” and the sheer volume of material, especially in large and complex cases, this practice has often created a serious administrative burden for the police and the Crown in respect of copying and transmitting documents and other materials.

Proposed Legislative Response

Without reducing the obligation to provide disclosure, legislative amendments could permit this obligation to be fulfilled, in appropriate circumstances, by providing the defence with reasonable access to disclosure materials and the opportunity to obtain copies.

Discussion

The common practice in criminal cases is for the Crown to provide copies of disclosure materials to the defence. However, the Ontario Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussion, chaired by the Honourable G. Arthur Martin, recognized in its 1993 report (the “Martin Report”) that this practice might not be appropriate in every case:

[I]n an unusually large or complex investigation, where the volume of material accumulated during the investigation makes the reproduction of all material that would normally be reproduced impractical, the Crown may, instead, provide the defence with a description or index of the material, and a reasonable opportunity to inspect it. If such a procedure for providing disclosure is used in a complex investigation, Crown counsel none the less must inform the defence of any information which Crown counsel is aware of and which is exculpatory or favourable to the accused in any other way.

For example, in a child abduction case, there may be tens of thousands of fruitless inquires conducted and noted by investigators before the child is found. It cannot be said that these inquires are necessarily irrelevant, and, thus, they may all be properly subject to disclosure, even though only one, or two, or even none, of them might ultimately be useful to the defence. Likewise, in an extremely complex fraud investigation, the relevant documentation may fill many rooms: and, although all of the documentation is subject to disclosure on the basis that it is not clearly irrelevant, none the less there may be very little of it that is of direct assistance to the defence. In circumstances such as these, the Committee thinks it sufficient to provide the defence with a description or index of the materials in question, and permit such access to the material as is reasonable in all of the circumstances…

Without in any way attempting to be exhaustive, access to disclosure materials that is reasonable in the circumstances of complex investigations will depend on such matters as the volume of the material, its sensitivity, the need to protect the integrity of the material, and the nature of the prosecution. Ultimately, access to the material must be guided by the purpose of disclosure, that is, to facilitate the right to make full answer and defence. [Martin Report, pp. 237-8]

As these comments indicate, it may not always be appropriate to fulfil the disclosure obligation by making and providing copies of materials. In appropriate circumstances, disclosure could take the form of offering a reasonable right of access to materials for which copies have not been provided. This right could be accompanied by a reasonable opportunity for the defence to obtain copies it selects from the materials accessed through this method.

Providing disclosure by means of access to information in the possession of the Crown, rather than providing copies, is already possible under current law. However, despite the comments in the Martin Report, it does not appear to have become a regular practice. Legislative amendments providing a firm statutory foundation for the practice, together with parameters for its use, might help encourage the development and use of this practice.

It is important to note that this disclosure-access proposal, like the proposal about electronic disclosure, deals only with the form of providing disclosure, not the extent and content of the materials that must be disclosed.

One possible structure for the amendments suggested under this proposal would be for the amendments to specify that the Crown may provide copies of defined core-disclosure materials [2], with the remainder of the disclosure to be provided by way of access to the other relevant materials. The core disclosure package suggested under such an approach likely would be extensive, comprising the main “Crown brief” materials. It could include such categories of information as the charge or charges; all statements from persons who have provided relevant information; all statements of the accused and co-accused; the criminal record of the accused and any co-accused; warrants and judicial authorizations; and police occurrence reports. It would also include any materials in the possession of the Crown that are exculpatory of the accused person, including those that could mitigate or negate the guilt of the accused or reduce his or her punishment.

Another manner of structuring such amendments might be to provide the Crown with a more general authority to provide disclosure through access, subject to the ability of a court to order otherwise. Alternatively, or in addition, amendments could define particular categories of materials that the Crown could only provide through disclosure access unless a court ordered otherwise. This could include materials which frequently are of little value, but are not “clearly irrelevant.” It could also include materials that are sensitive due to privacy or related concerns – for example, pornographic materials seized in the course of child pornography prosecutions.

It is likely that a disclosure-access mechanism would be of use mainly in large and complex cases, which frequently generate enormous volumes of materials that are subject to the disclosure obligation. In such cases, disclosure through access might be the fastest and most practical and effective means of managing disclosure of extended categories of information. It might also serve to reduce disputes about disclosure, since disputes often arise when it difficult to determine whether the information in a document meets the standard of relevance. If disclosing such materials would not require copying and furnishing vast quantities of additional documents, but would merely be a matter of granting access, the Crown might be less likely to contest certain disclosure requests, thus leading to fewer disputes.

A number of practical considerations arise, however, with respect to access to disclosure materials, notably the question of how the defence can meaningfully assess the information to which it is given access. Some level of categorization or other organization – such as a general index of categories of documents – would likely be required as guidance. Granting access to the additional disclosure materials and providing the means to obtain copies could raise further issues – special file rooms might have to be set aside and special arrangements made to allow physical access. Another area of special concern would be providing access to unrepresented accused, especially those who are incarcerated. And issues may arise on the degree to which Crown or police representatives should monitor access, particularly in view of the privacy required by the defence while engaged in review of documents.

It is also fair to question how well the disclosure-access approach would actually address the challenges inherent in disclosure. After all, the concept would not remove the obligation of collecting the wide array of relevant information, assessing it for privilege, and ensuring that all of the information is actually made available, in one way or another. Some might argue that the actual benefits such legislative amendments are likely to realize could be relatively small. In large and complex cases, the challenges of disclosure might best be addressed by effective use of electronic disclosure: more effective use of such disclosure might make the disclosure-access approach less worthwhile or even unnecessary.

Others might argue that, while providing only a small benefit in a relatively restricted category of cases, the disclosure-access concept actually risks complicating and slowing disclosure. For example, under a core disclosure approach, the practice of separating core and non-core materials could open up another ground for litigation over what materials must be included in the core materials. Disputes could also arise over the extent of defence requests to copies of additional materials. It is also possible that explicit legislative establishment of a procedure to obtain disclosure through access could extend the range of materials to which expectations of disclosure would arise.

However, the risks of additional complications should not be overemphasized. As with electronic disclosure, the use of this process would not be mandatory. The Crown could therefore evaluate the risks and difficulties of proceeding by disclosure through access on a case-by-case basis, and restrict its use to those cases where it is deemed worthwhile. Even if that amounts to a relatively small percentage of cases, these generally would be large and complex cases, which is where the greatest disclosure difficulties arise and where the benefits may be substantial. For the defence, it may be argued that any risks or disadvantages may be minimal, since the required materials would still be disclosed – whether by providing copies or providing access – and the entire process would remain the subject of judicial scrutiny.

Questions

  1. Would it be beneficial to proceed with legislative amendments that address disclosure through access?

  2. If so, would it be best to use a core disclosure model, or would another model be preferable? If a core disclosure model is used, how should the extent of the core materials be defined?

  3. What provisions could accompany the disclosure access proposal to minimize practical difficulties in implementation, such as issues of physical access to the materials and providing a means to obtain copies?

  4. What implications could a disclosure access proposal have for costs?


[2] This core-disclosure proposal was set out in the February 27, 2004, announcement. In this consultation paper, the proposal is put forward in more open terms as disclosure through access. A core-disclosure process may be one way of providing for such an approach, but it might not be the only way.