Friday, January 7, 2011

Deputy Commissioner wants RCMP disclosure obligations relaxed

According to newspaper reports, the RCMP is calling on the Harper government to relax the disclosure obligations of police officers in Canada. Senior Deputy Commissioner, Rod Knecht, intimates that the additional time police officers spend preparing disclosure comes at a cost to public safety. He would prefer that disclosure resources were instead spent on front-line policing.

This call for action is troubling. Several judicial inquiries have confirmed that non or insufficient disclosure of evidence contributed to wrongful convictions in Canada. In 2007, the Ontario Court of Appeal overturned the conviction of Steven Truscott. In 1959, Truscott was sentenced to death as a 14-year-old. He spent more than ten years in jail and lived his life stigmatized as the killer of Lynne Harper. The Ontario Court of Appeal found that a miscarriage of justice had occurred as a result of unreliable science, inadequate disclosure, faulty police investigating techniques and an unlikely theory of murder. Of note, a substantial amount of the fresh evidence heard at the Truscott appeal included information known to the Crown at the time of the original trial that was not disclosed to the defence. The Lamer Inquiry into the wrongful convictions of Ronald Dalton, Gregory Parsons and Randy Druken also chronicled flawed police investigations and disclosure.

While the volume of disclosure and the length of an average criminal trial has undoubtedly grown since the Supreme Court of Canada decision in R v. Stinchcombe, [1991] 3 S.C.R. 326, the Supreme Court has consistently held that persons charged with an offence have a constitutional right to disclosure of all information in the Crown’s possession or control, subject to proof from the Crown that the information is clearly irrelevant, privileged and in the public interest to withhold.

As Justice Sopinka, for the Court, recognized in Stinchcombe at 339-345, there will be cases where disclosure is more straightforward, as well as highly complex cases involving serious allegations and grave consequences to individual liberty that involve more lengthy and complex disclosure. The Court emphasized that the key to proper disclosure being made is whether an accused can make full answer and defence at trial. What exactly this means will vary to some extent from province to province and within a province by reason of local conditions, practices and the nature of the charge.

The need for accurate information and comprehensive disclosure has also been evidenced in matters of “national security”. Justice Dennis O’Connor’s Inquiry into the Actions of Canadian Officials in Relation to Mahrer Arar contains multiple references to the lack of transparency surrounding policing and national security activities. After finding that the RCMP passed inaccurate and unfair information to the United States that likely led to Maher Arar’s arrest and torture, Justice O’Connor included in his list of recommendations, amongst other things, that what is needed to ensure accountability of law enforcement is, subject to certain conditions, disclosure of information forming the basis of the charge, scrutiny by the courts and/or an independent review body. Bill C-38, which was created to alleviate some of the problems highlighted in the O’Connor Report and transparency in policing, has already drawn criticism about not going far enough to ensure access to information.

Consequently, if the police or CSIS are derelict in their responsibility to comprehensively record details of their investigation, there is the possibility that charges may be stayed under the Charter. There is also an increased likelihood of miscarriages of justice. Even if the non-disclosure does not rise to this level, it will likely lead to multiple adjournments to generate, for example, will say statements and other disclosure that was not prepared in the first instance. All of this comes at a cost to the taxpayer and even more the justice system.

It is for this reason that any non-disclosure legislation or practice grounded in administrative convenience would not survive a constitutional challenge where less restrictive alternatives are available and the right is a crucial component of a fair trial.

Whether the government ultimately chooses to “ease” disclosure obligations by hiring additional police officers in, for example, the isolated communities Knecht says are being “paralyzed” by disclosure obligations or improve the equipment and method available to officers in preparing records of their investigations are policy avenues that the government can consider. In the wake of recent debates and different community standards about the criminality of prostitution, use and possession of marijuana and other minor offences, it remains open to the government to consider whether to decriminalize or simply not enforce these acts as a more appropriate cost-cutting approach. What do you think?

Posted by Jeremy Tatum (Windsor Law II)


  1. I've often wondered why so much time, "after the fact" is required for document preparation and disclosure. Aren't those documents required for investigative purposes anyway? Just to lay the charge. Documents should be completed on the day of the offence (or shortly thereafter) and only require photocopying or electronic submission in future. Tasks which can be completed by administrative staff. Evidence which is not created but obtained should require even less time from front line officers as it is turned over to the Crown's office to sift through. Recent requests from Toronto Police Services for an increased budget make me wonder if there isn't a better way to trim expenses.

    I think we have a significant incongruity between what we expect of police investigations in court and the training provided to front line officers. It might be worthwhile to examine the educational process for officers since so much of what happens in court is dependant on their information. Perhaps there are efficiencies to be gained through officer education that can help with the budget. Many officers have little legal training beyond legislative offences, how can we expect them to adhere to complex jurisprudence when lawyers have a minimum of 7 years of postsecondary education before they can practice and police receive approximately 20 weeks with no postsecondary requirements. Since most of disclosure is about determining what should be handed to defence counsel most of the work should be conducted by the Crown's office, placing less strain on the police. Maybe the answer isn't to change our expectations of officers but to train the force we currently have to more efficiently meet those expectations, and ensure that the correct departments are performing the individual tasks involved in evidence collection and disclosure.

  2. A report was recently released on Canada's ailing access to and freedom of information laws. See