The Crown Duty to Disclose in Criminal Proceedings: R v McNeill

June 2010 | Bryan J. Buttigieg

In the year that has passed since the Supreme Court of Canada decision in R v Neill, the extent of the impact of decision on the Crown obligation to disclose has become clearer. Crowns, defence lawyers, witnesses and accused have all been affected by the principles set out in this decision which also serves as a useful reminder of the Crown’s obligations to provide full disclosure to the accused.

Background

In R v Mcneill, the accused was charged with a drug related offense. The accused learned that the arresting officer, who was the Crown’s main witness, was engaged in drug related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services Act and to criminal charges.  The accused wanted production of all documents relating to the arresting officer’s misconduct on the grounds that the information could assist in his defense.

Disclosure from “First” and “Third” Parties

In every criminal proceeding, the Crown has a duty to disclose all facts in its possession relevant to the case regardless of whether the information assists the Crown or the accused. However given the pervasiveness of the state in an individual’s day to day affairs, it quickly becomes apparent that the scope of this duty can not be properly understood without a clearer understanding of the definition of “Crown” in this context. In McNeill for instance, did “Crown” apply only to the prosecuting department (which would not normally have information related to disciplinary proceedings that might involve a witness) or would it also extend to the investigating Police department? In any Criminal Prosecution, is the “Crown” the Attorney General? Does it include every other Ministry and Agency of the Federal Crown? Should it also include the Provincial and perhaps municipal levels?

The Supreme Court in McNeill attempted to deal with this issue by making it clear that “Crown” could not possibly mean all departments of the State in every prosecution because this would be impractical and make it impossible for any Crown to ever satisfy its disclosure obligation in a timely manner. However, the court also made it clear that in the right context, any department, agency or institution, even if considered to be a “third party” for disclosure purposes, could be subject to the Crown’s disclosure obligation:

“the procedure set out in O’Connor provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown.”

(The O’Connor decision sets out an established procedure for obtaining documents from third parties which are required by the accused to assist in conducting the defence.)

The decision in McNeill is somewhat complicated by the fact that  while normally, the investigating Police Agency is so inextricably bound to the prosecuting Crown in a prosecution that although distinct and independent from the Crown at law, it is not a third party. Rather, it acts on the same first party footing as the Crown. This puts the onus on the Police to provide Records relating to findings of serious misconduct by police officers involved in the investigation against the accused where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

Implications of McNeill

The decision can be of great significance in the context of specialised prosecutorial institutions where the investigating and prosecuting bodies fall within the same legal entity. This could include Securities Agencies, Provincial Ministries of the Environment and Labour, Tax Prosecutors and many other similar bodies. In such cases, it is impossible to argue that the investigating officer is part of a “third party” entity.

For such institutions, a simple request of the Crown for production of any such records will suffice to trigger the Crown’s disclosure obligation. Similarly, as long as the request is well founded, any request for information from a Third Party will also oblige the Crown to take steps to obtain the requested information:

“When disclosure is demanded or requested, Crown counsel have a duty to make reasonable inquiries of other Crown agencies or departments that could reasonably be considered to be in possession of evidence. Counsel cannot be excused for any failure to make reasonable inquiries when to the knowledge of the prosecutor or the police there has been another Crown agency involved in the investigation. Relevancy cannot be left to be determined by the uninitiated. If Crown counsel is denied access to another agency’s file, then this should be disclosed to the defence so that the defence may pursue whatever course is deemed to be in the best interests of the accused. This also applies to cases where the accused or defendant, as the case may be, is unrepresented”

The key therefore is to make the relevant request. Of course, the principles set out in McNeil do not only apply to potential disciplinary proceedings against investigating officers:

The same duty to inquire applies when the Crown is informed of potentially relevant evidence pertaining to the credibility or reliability of the witnesses in a case.

Highlighting the breadth of the obligation under discussions, the Court cited favourably the principles set out in the Ferguson report which recommended:

The automatic disclosure by the police upon request by the Crown of the following information regarding acts of misconduct by a member of the Toronto Police Service who may be a witness or who was otherwise involved in a case before the court

  1. Any conviction or finding of guil[t] under the Canadian Criminal Code or under the Controlled Drugs and Substances Act [for which a pardon has not been granted.]
  2. Any outstanding charges under the Canadian Criminal Code or the Controlled
    Drugs and Substances Act.
  3. Any conviction or finding of guilt under any other federal or provincial statute.
  4. Any finding of guilt for misconduct after a hearing under the Police Services Act
    or its predecessor Act.
  5. Any current charge of misconduct under the Police Services Act for which a Notice of Hearing has been issued.

Anyone involved in the defence of Provincial or Federal prosecutions would be well served to consider the principles set out in McNeill in carefully fashioning a disclosure request that will best allow the defence to meet the case against it.

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