(continued from part 1.)
On January 15, 1994 and February 15, 1995 the Ministry of the Attorney General in Ontario announced broad, sweeping policy statements concerning disclosure. Included in these policy statements was the principle that the prosecution is under a duty to disclose all information in its possession relevant to the guilt or innocence of the accused unless the information is excluded from disclosure by a legal privilege. The duty is to disclose any relevant information in the possession or control of the prosecution, whether favourable or unfavourable to the Crown that is not clearly irrelevant. These statements acknowledge the duty to disclose is an ongoing obligation of the Crown.
In McNeil2 Supreme Court of Canada found that although police investigators are distinct and independent of the Crown as a matter of law, the investigating officers are not, “a third-party” within the meaning of that term for the purposes of an accused seeking disclosure of third-party records. Consequently, added to the Crown’s first-party disclosure obligations to provide all relevant materials that relate to an accused’s case that are in the possession of the prosecuting Crown entity, is the requirement to produce all police disciplinary records and criminal investigation files relating to the Crown’s main police witnesses in the case. There is therefore no need to bring an O’Connor application, as is the case for all other records that are held by parties other than the prosecution. An O’Connor application provides the accused with the mechanism for accessing third-party records that fall outside the scope of the Crown’s obligation to disclose.
Under the O’Connor3 regime the first step in any contested application for production of non-privileged documents in the possession of the third-party is for the accused to satisfy the court that the documents are likely relevant to the proceedings. Once that is established, disclosure is essentially governed by the same principles that apply to the disclosure of material in the possession of the Crown.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
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