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DISCLOSURE VS. PRIVILEGED INFORMATION IN CRIMINAL INVESTIGATIONS

Privilege

The Crown counsel (prosecutor) has limited discretion to withhold disclosure where disclosure would reveal information protected by privilege.  Such exceptions are solicitor-client privilege, police informer privilege, and the privilege to maintain the confidentiality of investigative techniques. The investigative techniques consists of any Crown work product.  Standard Crown work product, generally, includes materials such as internal Crown counsel notes, memorandum, correspondence, and legal opinions.  These are protected by privilege and need not be disclosed. Work product would form the basis of a disclosure request.

Only in exceptional cases the Crown is obliged to advise the defence of their decision to withhold or delay disclosure, following a privilege claim of material other than work product.  It is for the Crown counsel to waive the claim of privilege, failing which a judge has to resolve the privilege claim. While reviewing, a judge is to balance the public interest asserted by the Crown seeking to withhold disclosure against the Charter-guaranteed right to a full answer and defence.  Although, each dispute is resolved on the basis of its own circumstances, even privilege claims are subject to exceptions, such as an “innocence at stake” exception. Thus, an informer privilege claim can be defeated by the “innocence at stake” exception, while solicitor-client privilege can give way to the “future crime exception” as in R. v. Solosky (1979) and R. v. Leipert (1997).

Disclosure can be delayed by the Crown counsel to protect a witness’ safety or to allow an investigation to be completed. Admittedly, such instances are rare, but the Crown’s discretion is subject to judicial review.

Held by the Crown

Information in the hands of the police investigators is under the Crown’s control, for the purposes of disclosure. Actually, the Crown has to ensure at the screening stage that the police have provided all such information to the Crown.

How much of the information in the hands of other government agencies and institutions is under the Crown’s control, is not quite clear. If an outside agency is actively involved in an investigation and subsequent prosecution, the Crown is to obtain and disclose relevant information from them.  Also, when the Crown learns of relevant information held by another government department or agency, it is for the Crown to try to obtain the documents for the purposes of disclosure.  If the Crown fails to get it, the fact of the existence of the records should still be disclosed so that the defence can take the necessary steps.

Even when the Crown does not have control of the information held by another governmental institution, it is definitely in a position to facilitate a defence request.  It is not quite likely that third parties holding information will refuse to disclose if requested to do so by the Crown. When a request is relevant and reasonable under all circumstances, Crown counsel could assist with a specific written defence request for disclosure of materials not directly under its control.  Alternatively, the Crown can recommend the defence to take other steps to obtain the information, like a third party records request.

Having been in control of relevant information, the Crown has a corresponding duty to preserve that relevant evidence. If there are pieces of evidence, which should have been disclosed but subsequently lost or destroyed, then the Crown will be required to provide a satisfactory explanation in respect of such evidence. That explanation would perhaps satisfactorily account for the loss of information, but the issue of remedy would linger on, and would finally be resolved depending on the conduct of the authorities in question and the impact of the missing information.

Police Hands

The Law stipulates that all relevant information concerning a case to the Crown is to be provided by the police.  Likewise, the Crown has a corresponding duty to ensure not only that they have all relevant information from the investigating authorities, but also that they disclose it to the defence.  It is alright for the Crown to rely on the good faith of the police to provide them with all relevant material, but the defence with its head on the block cannot be that trustful.  So, lost evidence or a failure to disclose that originates with the police is very much in the mind of the defence, because it breaches the accused’s rights and can result in the same remedies being awarded against the police/crown.

Having regard to such a probability, defence counsel should be given the opportunity, upon request, to inspect the police agency’s file in relation to the offence, regardless of whether the Crown intends to rely on some of that material.  This could be done  subject again to the reviewable discretion of the Crown to withhold materials that are privileged or protected.

The police also could have relevant material even though it is not the product of the investigation at issue. Occurrence reports, service records, and other such information kept by the police could have some bearing on a case and could properly be the subject of a specific, written defence request for disclosure.  It is for the Crown to facilitate such requests, subject to a demonstration of relevance (if not apparent) and any claim of privilege.

Similarly, Crown counsel may be requested by defence for further investigation by police. It could be reasonable and could produce material arguably relevant to the case.  If so, Crown counsel should convey the request to the police.

Third Parties

Third parties can possess materials subject to disclosure, but the process employed depends on the nature of the offence. With regard to sexual offences, sections 278.1 through to 278.91 of the Criminal Code (Code) deal with the production and disclosure of third party records. All other offences fall under the common law regime for production of third party records as set out by the Supreme Court of Canada in R. v. O’Connor.

If the offence is enumerated under section 278.2 of the Code, the legislation applies regardless of the material being in the possession of a third party or the Crown. Although the Crown is required to notify the accused that it is in possession of the records, it can keep the matter on hold until there is an application for disclosure before the trial judge. The defence seeking production of such records is to file with the Court an application for production, supported by affidavit.  The defence has to also serve the custodian of the records with a subpoena. Notice of the application is to be served on the Crown and the subject of the records, as well as any other person with an interest in the confidentiality of the records, must also be notified.

The O’Connor regime stipulates that if the witness forwards the material to the prosecution, the material will be disclosed because any privilege or privacy interests have been clearly waived. Likewise, any records in the possession of the Crown must be disclosed by the Crown to the defence, notwithstanding the confidential nature of the records.

Regarding enumerated offences or non-enumerated offences where the third party retains possession, a trial judge goes through a two-stage procedure to determine whether or not to grant a third-party record application. To begin with, the accused is to establish that the document is to be produced to the trial judge. Then the trial judge examines the records in order to determine whether or not it is to be given to the defence. The person making the complaint or witness and any other interested party have the right to represent them in the hearing to decide whether or not the records be disclosed.

Without all the relevant information you may already be defeated. Contact the lawyers at Levy Zavet PC to discuss how your suspicions of improperly withheld information or misappropriated evidence may be unduly prejudicing your case.

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