Backgrounder

The Department of Justice has released a Consultation Paper to seek public input on proposals for amendments related to disclosure in criminal matters.

The Disclosure Reform Consultation Paper is intended to facilitate consultations on five (5) proposed areas for reform that were set out in a February 27, 2004 announcement made by the Minister of Justice and Attorney General of Canada, Irwin Cotler.

For each area of the five (5) proposed areas for reform a basic statement of issues is provided followed by a description and rationale. In addition, the potential challenges raised by the proposals are discussed, and alternatives are considered. At the conclusion of the discussion of each proposal, specific questions are posed for comment.

Preliminary consultations were held in March 2004 with stakeholders that included representatives from law enforcement, national legal associations and legal academics, among other groups. The feedback received from these preliminary consultations assisted in the creation of this public Consultation Paper.

Enhancing the Criminal Justice System

Under the Canadian Charter of Rights and Freedoms, an accused person is guaranteed the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information.

While the principle of disclosure is key to the proper functioning of our criminal justice system, the obligation can present significant challenges. The burden of managing large quantities of information can be considerable, especially in large and complex criminal matters, for both the Crown and the defence. Furthermore, disputes can arise over which information is relevant and over what fits within the categories of privileged information. Disputes over what information has to be disclosed, along with delays in transmitting it, can impede trials themselves, and sometimes result in proceedings being stayed due to unreasonable delay. A further area of concern is that information contained in the disclosed materials is sometimes misused.

These consultations are directed at making our system of disclosure and, as a result, our criminal justice system more efficient and effective while maintaining and protecting the rights afforded to accused persons under the Canadian Charter of Rights and Freedoms.

The Proposed Areas for Disclosure Reform:

Facilitating Electronic Disclosure

Electronic disclosure, in appropriate circumstances, can be of considerable assistance with the sheer physical challenge of disclosure. Although parties to complex proceedings are increasingly relying on electronic case management, there has not been clear acceptance within the criminal justice system of the electronic provision of disclosure materials as a sufficient form of disclosure. It is proposed that legislative amendments could specify that where the Crown transmits disclosure materials in electronic format, this is presumed to be a proper form of disclosure with respect to those materials, unless a court, in the interests of justice, decides otherwise.

Access to Disclosure Materials

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. It is proposed that legislative amendments could specify that the obligation of the Crown to provide disclosure could be fulfilled, in appropriate circumstances, by providing the defence with reasonable access to disclosure materials and a reasonable opportunity to obtain copies the defence selects from the materials accessed.

Specialized Court Proceedings on Disclosure

Disputes over disclosure issues arise frequently in the criminal process. While informal resolution of such disputes is encouraged, judicial rulings are often required to resolve disclosure issues. Delays in obtaining a judicial determination on a disclosure matter are not uncommon. These delays may arise from inability to obtain early access to a court or from the nature of motions proceedings themselves. It is proposed that legislative amendments could provide for specialized court proceedings to allow parties to deal in an expedited way with all matters related to disclosure, including relevance, privilege, and the adequacy and form of disclosure.

Detailed Disclosure Management Procedures

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. It is proposed that a collaborative initiative could be undertaken to develop detailed model rules of court addressing disclosure-management issues.

Addressing Improper Use of Disclosed Materials

In recent years, there have been some troubling instances of disclosed materials being misused. Misuse of disclosure information includes use of these materials to facilitate criminal activity, such as harassment and intimidation of witnesses. It also includes situations where sensitive private information about individuals, including victims of crime and third parties, is revealed. It is proposed that legislative amendments could set out an obligation on all persons who receive disclosure information not to use it for improper or collateral purposes and set out explicit powers for courts to make orders in respect of disclosure materials. Amendments could also create a targeted offence for the criminal misuse of these materials.

Electronic copies of the Disclosure Reform-Consultation Paper are available at http://www.canada.justice.gc.ca/en/cons/disc-ref/index.html. Those wishing to respond to the Paper are invited to send their comments before February 8, 2005* to the following address:

Disclosure Reform Consultation
Department of Justice Canada
Criminal Law Policy Section
284 Wellington Street
Ottawa, Ontario K1A 0H8

E-mail: disclosurereform@justice.gc.ca
Fax: (613) 942-9310

*The deadline for submitting your comments has been extended to March 8, 2005.