Disclosure Reform - Consultation Paper
Providing disclosure can be a time-consuming, multi-stage procedure, especially in large and complex criminal matters. Certain problems may arise from the lack of clear rules providing guidance on disclosure management, including roles and responsibilities, detailed format requirements, timelines, and other procedural matters.
Proposed Legislative Response
A collaborative initiative could be undertaken to develop detailed model rules of court that would address disclosure-management issues. At their discretion, individual courts could adopt these rules under section 482 of the Criminal Code. Certain of these model rules could perhaps be established as uniform national rules under the specific authority of subsection 482(5) of the Criminal Code.
The constitutional obligation of Crown disclosure has led to a need to manage a vast amount of information within the justice system. Various practices have been developed over the years to assist in fulfilling this obligation, but it might be of some benefit to attempt to clarify disclosure practices through a structure of rules. Such an approach was suggested, in part, by Sopinka J, in Stinchcombe:
There are many details with respect to [the application of the general principles of disclosure] that remain to be worked out in the context of concrete situations. It would be neither possible nor appropriate to attempt to lay down precise rules here. Although the basic principles of disclosure will apply across the country, the details may vary from province to province and even within a province by reason of special local conditions and practices. It would, therefore, be useful if the under-utilized power conferred by s. 482 of the Criminal Code which empowers superior courts and courts of criminal jurisdiction to enact rules were employed to provide further details with respect to the procedural aspects of disclosure. [pp. 341-342]
Section 482 of the Criminal Code provides individual courts with a broad authority to make rules with respect to any prosecution, proceeding, action, or appeal within their jurisdictions. Rules made under this section are published in the Canada Gazette. Under subsection 482(5), the Governor in Council can provide for uniformity of rules, and any such uniform rules have authority as if enacted under the Criminal Code.
The initiative proposed here would be a collaborative effort of justice system experts to develop detailed model rules of court on disclosure. Certain of these model rules could perhaps be established as uniform national rules under subsection 482(5). Others could serve as general models for local rules of court, encouraging individual courts to develop similar rules, but allowing for variations depending on the court.
It is not clear, however, whether the development of such detailed disclosure-management rules would be a worthwhile or advantageous policy direction. Currently, disclosure-management procedures in many jurisdictions are already subject to guidelines, protocols and best practices manuals. It is not clear that further clarification through formal, detailed rules is what is required. Indeed, such rules may not be sufficiently flexible to meet the varied circumstances and types of materials that arise in different cases and might even become the source of further disputes and delays as parties litigate the rules and exceptions to them.
These are valid considerations, but there may nevertheless be areas of disclosure management where rules could provide advantages. A collaborative effort might be able to identify these areas and to develop model rules to respond to them.
Would it be beneficial to proceed with an initiative to develop detailed model disclosure-management rules to encourage the adoption of such rules under section 482 of the Criminal Code?
If so, on what areas of disclosure management should the rules focus?
Should any such initiative consider the development of uniform rules under subsection 482(5) of the Criminal Code?
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