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SCC issues key disclosure ruling

|Written By Robert Todd

The Supreme Court of Canada has issued long-overdue guidelines for the release of relevant police discipline and criminal records, meaning counsel no longer need to rely on serendipity to prompt such disclosure.

Marie Henein says the SCC ruling in McNeil is vital because counsel previously had to bring third-party records applications to obtain police disciplinary and criminal records.

The court ruled that “records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within the scope of the ‘first-party’ disclosure package due to the Crown, where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.”

The decision goes on to state, “The Crown, in turn, must provide disclosure to the accused in accordance with its obligations under Stinchcombe. Production of disciplinary records and criminal investigation files in the possession of the police that do not fall within the scope of this first-party disclosure package is governed by the O’Connor regime for third-party production.”

Marie Henein, who argued the case as amicus curiae, says the decision is vital, as counsel previously had to bring a third-party records application under such circumstances.

“Often defence don’t know the history, we don’t have access to the records, and so unless it’s really reported in the media, or you get information anecdotally, you will not be able to get access to that information,” she says.

“I think underpinning it is the reality that, if you’ve got an officer whose integrity may be compromised in a way that impacts on investigations, everybody needs to know about that. That is something that should be aired, it’s not something that should be protected.”

The court’s decision comes in the case of R. v. McNeil, a matter involving Lawrence McNeil, who was convicted of various drug-related charges in May 2004 at the Ontario Court of Justice.

After his conviction but before sentencing, McNeil went to the Court of Appeal to seek documents related to drug-related misconduct by his arresting officer, who later pleaded guilty to a criminal charge. McNeil planned to use the material to prepare an application to file fresh evidence on appeal.

The appeal court ruled there was no expectation of privacy for the criminal investigation files, and ordered the Attorney General of Ontario and Barrie Police Service to hand over the records to the federal prosecutor handling McNeil’s case. Based on the new evidence and submissions, the appeal court in September 2007 overturned McNeil’s convictions and ordered a new trial.

The Crown decided not to re-prosecute McNeil, and while the Supreme Court’s decision no longer affected him, the court appointed Henein and Jordan Glick to act as amicus curiae.

In its decision, the top court noted that, based on Stinchcombe, relevant records outlining serious misconduct by officers involved in an investigation of an accused should be included by police in first-party disclosure packages provided to the Crown.

“For the purposes of fulfilling this corollary obligation, the investigating police force, although distinct and independent from the Crown at law, is not a third party,” said the court. “Rather, it acts on the same first-party footing as the Crown.”

The court noted that the courts must, when considering the production of records under O’Connor, think about the overall relevance of the records to the case at hand. Once that’s been determined, said the court, the next step is a breeze.

“It may be useful to pose the question in this way:  if the third-party record in question had found its way into the Crown prosecutor’s file, would there be any basis under the first-party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no principled reason to arrive at a different outcome on the third-party production application,” stated the court.

But the decision went on to note that production orders may need to be subject to redactions and other restrictions to meet privacy guarantees.

“That is not to say, however, that residual privacy interests in the contents of criminal investigation files should be disregarded,” the court stated, later adding that courts “should ensure that a production order is properly tailored to meet the exigencies of the case but do no more.”

The decision also singles out George Ferguson’s January 2003 report, titled “Review and Recommendations Concerning Various Aspects of Police Misconduct,” as required reading for police.

“The kinds of information listed in the Ferguson report can provide useful guidance on those types of matters in respect of which a police force may well be advised to seek the advice of Crown counsel,” it stated.

Ian Roland, who acted as counsel for the intervener Police Association of Ontario in the case, says the court has provided some crucial guidance with McNeil. But he points to one fear: it may lead to an over-production of police discipline and criminal records.

“Crowns are very busy, there’s a lot of work and work pressure bearing down on Crowns all the time,” he says.

“The concern is they won’t take the time to go through a sophisticated or detailed consideration of matters - with respect in particular to the officer’s privacy interest - just out of the sheer volume of work and not having the time or inclination to go through the exercise will default to disclosing materials that they shouldn’t disclose. That’s the risk.”

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