“Full disclosure…”

            This is a turn of phrase, I am sure, each of us has used at some point to inform others that we are communicating honestly and transparently. While in most contexts the stakes of offering others ‘full disclosure’ are pretty low and intended to minimize the likelihood of awkward social interactions, the same cannot be said about the criminal law context. So, how does ‘full disclosure’ work in a context where an individual’s access to information can be either what preserves or deprives them of their liberty?

            Section 7 of the Canadian Charter of Rights and Freedoms guarantees that “[e]veryone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.” In the years since the Charter’s entrance into Canadian law and politics, the Supreme Court of Canada has articulated a number of these ‘principles of fundamental justice’, including an accused’s right to make full answer and defence. “The right to make full answer and defence,” the Court wrote in Stinchcombe, “is one of the pillars of criminal justice on which we heavily depend to ensure that the innocent are not convicted.”

            William Stinchcombe was a Calgary-based lawyer charged with numerous counts of theft, fraud, and breach of trust. A former secretary of his was called as a Crown witness at the preliminary inquiry, where she offered evidence that was favourable to Stinchcombe’s defence. Prior to trial, this same witness was interviewed multiple times by police where written and tape-recorded statements were taken. Stinchcombe’s defence counsel was informed of the existence of these documented statements, but not their contents. Defence’s requests for the disclosure of these statements were refused, and the Crown refused to call the secretary as a witness during trial (which would have allowed for the defence to cross-examine her). Defence sought an order with the trial judge to have the secretary called as a witness and for the contents of the earlier statements to police to be disclosed. The judge dismissed this application, and the trial continued. William Stinchcombe was convicted of breach of trust and fraud.

            On appeal, the Supreme Court of Canada was tasked with clarifying the procedures governing disclosure from the Crown prosecutors to defence counsel. In doing so, the Court held that the Crown has a “legal duty to disclose all relevant information to the defence” and that the disclosed “material must include not only that which the Crown intends to introduce into evidence but also that which it does not.” The Crown was also prohibited from making distinctions between evidence deemed to be ‘inculpatory’ and evidence deemed to be ‘exculpatory.’ The Court reasoned that this duty to disclose fit neatly within the framework governing the different roles played by Crown prosecutors and defence counsel. Quoting its earlier decision in Boucher v. The Queen (paras 23-4), the Supreme Court explained:

It cannot be over-emphasized that the purpose of a criminal prosecution is not to obtain a conviction, it is to lay before a jury what the Crown considers to be credible evidence relevant to what is alleged to be a crime.  Counsel have a duty to see that all available legal proof of the facts is presented:  it should be done firmly and pressed to its legitimate strength but it must also be done fairly.  The role of prosecutor excludes any notion of winning or losing; his function is a matter of public duty than which in civil life there can be none charged with greater personal responsibility.  It is to be efficiently performed with an ingrained sense of the dignity, the seriousness and the justness of judicial proceedings.

            Understanding this as the true role of a Crown prosecutor, the Court went on to explain that any “fruits of the investigation” in the hands of Crown prosecutors are not their personal property to be used for the securing of convictions, but rather materials that belong to the public and ought to be used only to ensure that “justice is done.” In disclosing these materials, therefore, the Crown also works to ensure that defence counsel can properly fulfil their role as adversary to the Crown and advocate for the accused.

            While the Supreme Court’s important decision in Stinchcombe served to create the regime governing and organizing disclosure, it only covered materials in possession of the Crown. It did not extend the obligation to disclose to include third parties in possession of materials relating to the accused person’s case. Nearly thirteen years later, however, the Supreme Court would be presented with this problem.

            Following an alleged drug transaction, Lawrence McNeil was arrested by Constable Rodney Hackett and other members of the Barrie Police Service. McNeil was charged with a number of drug-related offences, including possession for the purposes of trafficking, and subsequently convicted. The only witness called to testify against McNeil by the prosecuting federal Crown was Constable Hackett, and the trial judge’s findings largely relied on Hackett’s credibility as a police officer. Prior to his sentencing, however, McNeil discovered that Constable Hackett had been criminally charged with drug-related misconduct, which had also led to internal police disciplinary proceedings against him under the Ontario Police Services Act.

            Armed with this newfound information, McNeil’s defence counsel brought a preliminary motion before Ontario’s Court of Appeal and asked the court to order the production of all documents relating to Hackett’s misconduct, arguing that the information was necessary for him to present new evidence in his forthcoming appeal from his conviction. Predictably, this move was resisted by the Barrie Police, the provincial Crown responsible for prosecuting Hackett, and the federal Crown. Despite this institutional resistance, however, the Ontario Court of Appeal granted McNeil’s motion and ordered the production of the criminal investigation records concerning Constable Hackett on the third-parties involved. Unhappy with the Court of Appeal decision, the Attorney General of Ontario – as a third-party holding records concerning Hackett, not McNeil himself – sought leave to appeal to the Supreme Court of Canada.

            In its McNeil decision, the Supreme Court not only affirmed its earlier decision in Stinchcombe, but offered both the Crown and defence useful instruction on the role of the police in the disclosure process. The Court held:

The necessary corollary to the Crown’s disclosure duty under Stinchcombe is the obligation of police (or other investigating state authority) to disclose to the Crown all material pertaining to its investigation of the accused.  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.  Rather, it acts on the same first party footing as the Crown (para 14).

This ‘first party footing’, the Court continued, requires the inclusion records of police misconduct in situations where the “misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused” in the release of police investigative materials to the Crown (para 15). The Crown, then, is tasked with providing this disclosure to the accused (para 15).

            The court recognized, however, that not all records concerning misconduct will relate to or stand to impact the case against the accused person. And so, after receiving the details of police misconduct, the Crown is expected to “act as a ‘gate-keeper’”, sorting out what parts of this material, if any, should be turned over to the defence in compliance with the Crown’s Stinchcombe obligation of disclosure” (para 58). The court held that requiring the Crown to vet the misconduct-related information disclosed to it by the police prior to disclosing to the defence will allow criminal trials to “remain focussed on the issues to be tried” and prevent defence from potentially ‘squandering scarce judicial resources on fishing expeditions for irrelevant evidence’ (para 29).

            In our legal system the right of an accused person to ‘make full answer and defence’ has not only been given constitutional protection but is characterized as a ‘principle of fundamental justice.’ Given this ‘fundamental’ importance, it makes sense that the Supreme Court would be called upon to clearly articulate the roles of the three major parties involved in any criminal case: the Crown, the defence/accused, and the police. When an accused’s access to information relating to their case is limited, as Stinchcombe and McNeil demonstrate, not only are their s.7 Charter rights at stake in an ideological sense, but very serious miscarriages of justice can occur that result in wrongful convictions and penitentiary sentences. Therefore, full knowledge of the case built against them allows the accused to answer for and explain their alleged actions in ways that may work to exonerate them. And, further, providing disclosure to the accused also works in the service of the common law maxim underpinning our criminal justice system: the principle that the crown never loses. If an accused is found guilty beyond a reasonable doubt, the Crown wins because justice was done. If, on the other hand, an accused is acquitted, the Crown wins because the liberty and reputation of one of its citizens was justly preserved against false witness. Thus, it would seem that the full disclosure on disclosure is that it not only works to hold involved parties accountable to one another, it also allows them to do their jobs – as advocate, investigator, or prosecutor.