Disclosure by the prosecution

Disclosure by the prosecution

DATE: May 20, 2008

SUBJECT: DISCLOSURE BY THE PROSECUTION

BACKGROUND:

An accused has a Constitutional right to disclosure by the Crown. It is essential to the accused in making full answer and defence to a charge. It may also promote efficiencies in the criminal process. Non-contentious and time-consuming issues may be resolved without litigation. The accused may elect to admit guilt in the face of a fully disclosed case for the prosecution. As a result, Crown Counsel has a duty to ensure that disclosure is affected in accordance with this Guideline.

APPLICATION:

The disclosure obligations of Crown Counsel described in this Guideline apply to the presentation of all criminal offences and mutatis mutandis to all offences created by provincial legislation.

INTERPRETATION:

Reference in this Guideline to Crown Counsel's “Chief Crown Prosecutor” means, in the case of Crown Counsel in the Appeals & Criminal Law Policy or Special Prosecutions Branches, the Director of the respective Branch. In the case of General Counsel, “Chief Crown Prosecutor” means the Assistant Deputy Minister (Criminal Justice).

THE GENERAL RULE:

Subject to matters of privilege, Crown Counsel shall disclose to the defence all information in her/his possession which is relevant to the guilt or innocence of the accused on the charge(s) to which (s)he is subject. When determining the scope of relevance, Crown Counsel should err on the side of inclusion rather than exclusion and disclose all information unless it is clearly irrelevant.

Relevance

In determining the relevance of information in her/his possession, Crown Counsel should consider whether that information could reasonably be used by the defence:

  1. in meeting the case for the Crown; or
  2. in advancing a defence or making a decision which might affect the conduct of the defence (eg. whether the defence should call evidence).

Crown Counsel may be inhibited in her/his ability to assess relevance where information relating to that assessment is unknown or unknowable. For instance, the identity and evidence of defence witnesses or the nature and particulars of a defence may not be known to Crown Counsel. Relevance of information pertaining to those matters can not be determined. Nevertheless, where information of this nature is disclosed to Crown Counsel, the obligation to re-assess relevance and make appropriate disclosure will arise.

Possession

Crown Counsel is in possession of all relevant information in the possession of the prosecution’s investigative agency (the “investigative agency”). The police have a legal duty to bring all relevant information in their possession to the attention of Crown Counsel. Nevertheless, should Crown Counsel become aware of relevant information in the possession of the investigative agency which has not been provided to her/him or disclosed to the defence, (s)he has an obligation to obtain that information and effect disclosure in accordance with this Guideline.

Crown Counsel is not in possession of information which is beyond the control of the prosecution. So, for example, Crown Counsel does not have possession of otherwise relevant information held by individuals or organizations independent of government and not provided to the investigative agency or Crown Counsel.

As a general rule, Crown Counsel is not in possession of information held by other governments, government agencies, Crown Corporations or other Departments of the government of Alberta. Possession of that information is acquired, however, when it is provided to the investigative agency or to Crown Counsel during the course of the proceedings.

Crown Counsel is not in possession of anything returned to its owner or otherwise disposed of by the investigative agency in the course of a routine or established practice of dealing with that type of thing when acquired or used by the investigative agency during the course of a criminal investigation. For instance, Crown Counsel is not in possession of property which has been photographed and returned to the owner of that property in accordance with s.491.2 C.C.

Similarly, Crown Counsel is not in possession of anything which was acquired during the course of a prosecution, including any appeal(s) there from, but has been returned to the investigative agency or otherwise disposed of by Crown Counsel upon expiration of the applicable appeal limitation period.

MANDATORY DISCLOSURE:

Where a person has been charged with an offence, Crown Counsel must disclose to the defence the following items pertaining to that offence:

  1. The information and indictment
  2. A summary of the offence
    An example of such a summary would be a synopsis of the circumstances of the offence alleged to have been committed by the accused(s), as prepared by the investigating agency.
  3. Statements
    Statements or reports obtained from persons who have provided relevant information to the investigative agency or Crown Counsel must be disclosed to the defence, regardless of whether Crown Counsel intends to call the person providing that statement or authoring that report as a witness.

    Statements may be made in a variety of forms, including: (a) orally, to the investigative agency or to Crown Counsel; (b) notes summarizing or recording an oral statement; (c) a formal report or written statement; (d) an audio taped recording; (e) a videotaped recording; (f) a transcript of an audio taped or videotaped recording.

    Oral statements made to Crown Counsel containing relevant information not otherwise recorded must be disclosed. As a general rule, this form of statement should be reduced to writing and disclosed in that fashion (eg. by letter). However, circumstances may be such as to render other manners of disclosure more appropriate (e.g. by telephone or orally, where there is some urgency). Crown Counsel must disclose whether an oral, summarized or written statement (other than an oral statement taken during pre-trial interview) has also been videotaped or audio taped.

    If a witness has made more than 1 statement containing relevant information (as opposed to more than 1 form of a single statement), all of those statements must be disclosed. For example, if a witness is interviewed on 2 separate occasions by the investigative agency and provides 2 statements, each of which contain relevant information, both statements must be disclosed in accordance with this Guideline. Limitations on Crown Counsel’s obligation to disclose more than 1 form of a statement (e.g. both an audio taped statement and a transcript thereof), is addressed below. See: “MANNER OF DISCLOSURE”.

    What are sometimes referred to as 'Will Say' reports (an investigator’s, witness’ or Crown counsel’s summary of a statement) are not statements. Crown Counsel has a discretion to disclose these reports in any case where the statement(s) they purport to summarize have themselves been disclosed to the defence. Where no statement is provided, however, the information in the 'Will Say' report must be disclosed.
  4. Criminal Record(s)
    This includes the record of criminal convictions, absolute and conditional discharges of the accused and any co-accused.
  5. Any Relevant Scientific Report(s)
    This includes such items as forensic, medical and laboratory reports.
  6. Any Relevant Real Evidence, Documentary Evidence or Seized Goods
  7. This includes documentary evidence, audiotape or videotape recordings (other than statements), photographs and other things acquired by the investigative agency in relation to the investigation whether or not it is intended that they be tendered in evidence.
  8. Any Relevant Search Warrants & Documents Related Thereto
  9. Any Relevant Authorization(s) To Intercept Communications
  10. Witness Benefits
    This includes any special benefit or reward (such as immunity from prosecution, reduced sentences, etc.) and any offer or promise thereof known by Crown Counsel to have been extended by the investigative agency or Department of Justice (Alta.) to any person in order to secure evidence for the prosecution. This does not include payment of any expense incurred or arrangements made in the usual and ordinary course of facilitating the taking of evidence from a witness or ensuring her/his safety and security. For example, it would not include paying travel expenses and accommodations for witnesses who must be brought to the jurisdiction in order to secure their testimony. Likewise, it would not include expert witness fees.

Statements

Crown Counsel has a discretion to disclose to the defence the name, location, telephone number and/or fax number of any person who has provided a statement containing relevant information.

Where the defence requests the name, location, telephone number and/or fax number of any person who has provided a statement containing relevant information, for the purpose of conducting a pre-trial interview, and Crown Counsel elects not to disclose that information, Crown Counsel must:

  1. advise the defence that the witness will be contacted and advised of the defence request; and
  2. contact the witness to advise him/her of the defence request. Crown Counsel must thereafter advise the witness:
    1. that (s)he has a discretion to consent or decline to consent to such an interview. Under no circumstances shall Crown Counsel discourage or attempt to discourage a witness from consenting to such an interview;
    2. of her/his rights and obligations as a witness (either upon request for this information by the witness or otherwise in the discretion of Crown Counsel);
    3. of the procedures outlined in this Guideline to accommodate a pre-trial interview.

Where a witness elects not to consent to such an interview, Crown Counsel must so advise the defence.

Where a witness consents to such an interview, Crown Counsel must:

  1. so advise the defence; and
  2. facilitate that interview:
    1. by providing the defence with the witness’ name, location, telephone number and/or fax number or;
    2. should the witness request that the information not be disclosed:
      1. by arranging a mutually agreeable time, date and place for such an interview to occur; and
      2. should the witness so desire, by attending that interview.

Criminal Record(s) & Outstanding Charge(s)

Upon request by the defence:

  1. Crown Counsel must disclose to the defence the record of criminal convictions, absolute and conditional discharges of any person who was acting as a co-conspirator or party to the offence(s) with which the accused is charged;
  2. Crown Counsel may also seek out and disclose to the defence the record of criminal convictions, absolute and conditional discharges of any other person. In exercising that discretion, Crown Counsel should take into account the following criteria:
    1. the importance of the witness’ evidence to the case for the prosecution;
    2. the degree to which credibility of the witness impacts on the evidence to be given (e.g. Is the witness merely one link in an exhibit’s continuity chain or is that witness the complainant?);
    3. the nature of the convictions on the criminal record (e.g. Are they crimes of moral turpitude or not?);
    4. how old are the convictions? e.g. Are they so dated that they cannot truly be said to reflect on the witness’ credibility?
  3. Crown Counsel must disclose to the defence all criminal charge(s) known by her/him to be outstanding against a co-conspirator or party to the offence(s) with which the accused is charged;
  4. Crown Counsel may seek out and disclose to the defence any criminal charge(s) outstanding against any other person to be called as a witness.

Investigative File

As a general rule, Crown Counsel has no obligation to disclose to the defence any contents of the investigative agency file.

However, upon request by the defence, Crown Counsel must disclose to the defence that file or any portion thereof not subject to privilege that the defence establishes:

(a) that there are further materials on the investigative agency’s file that have not been disclosed; and

(b) that those further materials are potentially relevant.

Prosecution File

Similarly, Crown Counsel has no obligation to disclose to the defence any contents of Crown Counsel’s own file (eg. opinions, memoranda, letters, etc.). However, and upon request by the defence, Crown Counsel must disclose to the defence the contents of her/his file or any portion thereof not subject to work privilege, provided that the defence establishes:

  1. that there are further materials on the prosecution file that have not been disclosed; and
  2. that those further materials are potentially relevant.

Lost or Destroyed Information

When Crown Counsel becomes aware of the fact that relevant information which was in her/his possession has since been lost or destroyed, (s)he must notify the defence thereof together with the reason for that loss or destruction, as the case may be. This requirement does not apply to evidence returned or disposed of in the manner referred to under “POSSESSION,” supra.

Requests for Information / Follow-up Investigations

Where the investigative agency has conducted follow-up investigations at its own instance or at the instance of Crown Counsel, any relevant information derived therefrom must be disclosed in accordance with this Guideline. See: “Continuing Disclosure” post.

Where Crown Counsel has reasonable grounds to believe that a witness has or is attempting to obstruct the course of justice or otherwise mislead the court by any information (s)he has provided or failed to provide Crown Counsel or the defence, Crown Counsel must so advise the defence and, where appropriate, have an investigative agency review that conduct. Once that investigation is completed, Crown Counsel must disclose to the defence any relevant information derived therefrom.

As a general rule, Crown Counsel has no obligation to undertake follow-up investigations or answer disclosure-related questions posed by the defence. Where Crown Counsel exercises her/his discretion to do so, however, (s)he must disclose any relevant information derived from an investigation in accordance with this Guideline.

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MANNER OF DISCLOSURE

Controlled Disclosure

The accused is entitled to disclosure in accordance with this Guideline, regardless of whether the accused is represented by counsel. Nevertheless, the manner of disclosure to the unrepresented accused may be controlled in order to ensure the proper use and security of disclosure materials by her/him.

Crown Counsel has a discretion not to provide copies of disclosure materials to persons who are not members in good standing of the Law Society of Alberta. Rather, disclosure may be affected in this circumstance by controlled and supervised, yet adequate and private, access to those materials. Situations where Crown Counsel's discretion may be exercised in favour of controlled disclosure include those cases where the safety, security or privacy of a person providing relevant information to the prosecution might be jeopardized.

Crown Counsel has a discretion to provide controlled disclosure to a member in good standing of the Law Society of Alberta only where (s)he has reasonable grounds to believe that this procedure is necessary in order to prevent misuse of disclosure materials or otherwise with the approval of her/his Chief Crown Prosecutor.

Crown Counsel must advise all those receiving disclosure materials, in writing, of their permitted use(s) and may impose trust conditions upon defence counsel with a view to ensuring that disclosure materials are used only for the purpose of making full answer and defence. Appendix A or a reasonable facsimile thereof should be appended to all disclosure materials released to the defence.

Notwithstanding the above, the accused and/or her/his counsel must, in all cases, be provided with copies of the information and indictment, her/his criminal record and all statements made by her/him in relation to the charges under prosecution.

(See also the guideline: Disclosure of Material Which Constitutes the Offence Itself.)

Third Party Records

Crown Counsel should seek to obtain knowledge or possession of relevant information which is subject to a constitutional, common law or statutory privacy right only by judicial authorization (eg. by search warrant) or by waiver of that privacy right by the affected person. For instance, a person has a recognized privacy right in her/his medical records. Crown Counsel should seek to obtain knowledge of the contents or possession of those records only by judicial authorization or by waiver of the privacy right by the affected person. Where Crown Counsel considers it appropriate to seek knowledge or possession of information subject to a privacy right by waiver, (s)he must obtain that waiver in the form provided in Appendix B.

Notwithstanding the above, should Crown Counsel gain knowledge that a third party is in possession of relevant information, (s)he must disclose that fact to the defence.

In addition, should Crown Counsel come into possession of any relevant information which is subject to a recognized privacy right (whether by judicial authorization, waiver or otherwise), Crown Counsel must disclose that information to the defence.

Information Possessed by Government

Where Crown Counsel gains knowledge that any relevant information is in the possession of another government, government agency, Crown Corporation or Department of the government of Alberta, (s)he must disclose that fact to the defence.

In addition, should Crown Counsel come into possession of any relevant information which is in the possession of another government, government agency, Crown Corporation or Department of the government of Alberta, (s)he must disclose that information to the defence.

Copies

Disclosure of the information and indictment, summary of the offence(s), criminal record(s), scientific report(s), search warrant(s) and authorization(s) must be made by providing the defence with a copy thereof. That copy may be in hard copy or in electronic form.

As a general rule, all statements are first provided orally before being recorded in another form. If a statement is oral only, any record of relevant information contained in that oral statement should be disclosed. If an oral statement has been recorded in more than 1 form (e.g. by videotape and in writing) Crown Counsel must disclose that fact.

Crown Counsel has discretion to provide to the defence, upon request, more than 1 form of any statement.

Crown Counsel also has discretion to disclose real evidence, seized goods, documentary evidence, photographs, audio or videotaped statements to the defence by providing a copy thereof (where those items are reasonably capable of reproduction). In these circumstances, Crown Counsel has a discretion to: (a) seek recovery of or take steps to minimize the cost to the prosecution of providing those copies; and/or (b) ensure the proper use and security of those copies by imposing such conditions as (s)he considers reasonable, having regard to all the circumstances.

Where Crown Counsel is otherwise authorized or required to provide a copy of material(s) to the defence, Crown Counsel has a discretion to provide her/his copy of those materials in order to afford the defence with an opportunity of making its own copy thereof.

Inspection or Review

Where a copy of real evidence, seized goods, documentary evidence, photographs, videotapes, audiotapes, audio or videotaped statements is not provided, Crown Counsel must, upon request by the defence, take reasonable steps to afford the defence with an opportunity to hear, inspect and/or view those things.

Other

Where Crown Counsel acquires possession of any other relevant information which cannot be disclosed in a form or in the manner mentioned above, (s)he may exercise her/his discretion to disclose in any appropriate manner. For example, where Crown Counsel acquires previously undisclosed relevant information when interviewing a witness, that information may be disclosed to the defence by letter.

Crown Counsel has discretion to require of the defence a written acknowledgment of the disclosure materials provided.

TIMING OF DISCLOSURE

Initial Disclosure

The prosecution's duty to disclose will ordinarily be triggered by a request from the accused's counsel. As a result, Crown Counsel may presume that counsel for the accused will request disclosure when it is required.

Disclosure ought ordinarily to be effected before the accused enters an election or not guilty plea. Where, for any reason, this is not possible, disclosure must be effected upon request and as soon as practicable thereafter and, subject to the provisions of this Guideline governing "DELAYED DISCLOSURE" and "NON-DISCLOSURE", before preliminary inquiry and/or trial.

Special steps ought to be taken to ensure that an unrepresented accused is advised that disclosure materials are available upon request. In circumstances where that accused person is in custody and elects to plead guilty upon her/his first appearance in court, duty counsel, any officer of the court or the court itself should first ensure that (s)he has been made aware of the availability of disclosure materials.

Continuing Disclosure

The prosecution's duty to disclose is a continuing one. It commences after charge, through the time of trial and continues until expiration of any applicable appeal limitation period. Where additional relevant information is received after the initial disclosure process, Crown Counsel must effect disclosure of that information in accordance with this Guideline.

'Re-Disclosure'

Once disclosure has been effected in accordance with this Guideline, Crown Counsel has a discretion to 're-disclose' materials to the defence before or during trial. There is no legal obligation to provide second or subsequent copies of information or materials already disclosed to the defence. Nevertheless, where the defence establishes that disclosure materials have been innocently or accidentally lost or destroyed, Crown Counsel should exercise her/his discretion in favour of re-disclosure. In these circumstances, Crown Counsel has a discretion to: (a) seek recovery of or take steps to minimize the cost to the prosecution of providing any re-disclosure; and/or (b) ensure the proper use and security of any materials provided during re-disclosure by imposing such conditions as (s)he considers reasonable, having regard to all the circumstances.

Disclosure on Appeal

Crown Counsel assigned conduct of an appeal is entitled to presume that the prosecution has affected full disclosure at or before trial. (S)he has no duty to 're-disclose' previously disclosed information, merely because the accused has retained new or alternate counsel for her/his appeal. Nevertheless, where the appeal has been launched within the limitation period provided and the defence establishes that it has innocently or accidentally lost or destroyed disclosure materials, Crown Counsel should exercise her/his discretion in favour of re-disclosure. Where the appeal has been launched outside the limitation period provided and the disclosure materials are not readily available, Crown Counsel retains a discretion to re-disclose or not as (s)he considers appropriate.

In either of these circumstances, Crown Counsel has a discretion to: (a) seek recovery of or take steps to minimize the cost of re-disclosure; and/or (b) ensure the proper use and security of any materials provided during re-disclosure by imposing such conditions as (s)he considers reasonable, having regard to all the circumstances.

Disclosure on Executive Review

Where there is any executive review of a prosecution (e.g. s. 690 C.C.), Crown Counsel has a discretion to disclose or re-disclose relevant information to any person. Where a request is made by the Minister of Justice and Attorney General of Canada for access to or copies of any relevant information still in the possession of Crown Counsel, that information must be provided.

Delayed Disclosure

Notwithstanding anything to the contrary in this Guideline, Crown Counsel has a discretion to delay disclosure of relevant information where Crown Counsel reasonably believes that it is necessary to do so in order to:

  1. protect the identity of an informant;
  2. preserve an evidentiary privilege;
  3. comply with a court order;
  4. prevent prejudice to an ongoing investigation or reveal ongoing investigative techniques used by the investigative agency;
  5. respect a constitutional, common law or statutory privacy right;
  6. protect the safety or security (including protection from harassment or threats) of any person;
  7. seek judicial review of a request for disclosure by the defence.

Before Crown Counsel delays disclosure of any relevant information (s)he must:

  1. be of the opinion that to do so would not compromise the accused’s ability to make full answer and defence;
  2. advise her/his Chief Crown Prosecutor in writing of the information being withheld, the reason(s) for delaying disclosure of that information and any step(s) available or necessary to prevent or minimize prejudice to the defence in its ability to make full answer and defence as a consequence thereof;
  3. obtain approval from her/his Chief Crown Prosecutor to delay disclosure;
  4. advise the defence that relevant information has not been disclosed;
  5. advise the defence of the general nature of the undisclosed information, the reason(s) for delaying disclosure of that information as well as any step(s) the prosecution is prepared to take in order to prevent or minimize prejudice to the defence in its ability to make full answer and defence; and
  6. take such steps as are necessary to facilitate prompt judicial review of the delaying of disclosure where that review is initiated by the defence, or, in the opinion of Crown Counsel, is otherwise necessary or desirable.

A Chief Crown Prosecutor may relieve Crown Counsel of any or all of the responsibilities ordinarily attendant upon her/him when delaying disclosure if, in the opinion of the Chief Crown Prosecutor, compliance would compromise the interest sought to be protected by delaying disclosure.

In every case where disclosure is delayed and the defence is not notified thereof, the Chief Crown Prosecutor must provide a report to the Assistant Deputy Minister (Criminal Justice):

  1. summarizing the relevant circumstances of the case;
  2. summarizing the information not disclosed to the defence;
  3. providing the reason(s) for delaying disclosure of that information;
  4. providing the reason(s) for not notifying the defence thereof;
  5. identifying any steps the Crown is prepared to take in order to prevent or minimize prejudice to the defence in its ability to make full answer and defence; and
  6. stating that, in the opinion of the Chief Crown Prosecutor, delay of disclosure will or will not prevent the defence from making full answer and defence.

Subject to any direction from the Assistant Deputy Minister (Criminal Justice), where disclosure of relevant information has been delayed, that information must be disclosed to the defence forthwith where the reason for withholding or delaying disclosure no longer exists and, in any event, before trial.

Non-Disclosure

Permanent non-disclosure of relevant information will only be justified when:

  1. a court so orders or, upon judicial review, a court declines to interfere with Crown Counsel's exercise of discretion not to disclose;
  2. disclosure has been delayed in accordance with this Guideline, the defence has been so notified, the conditions justifying non-disclosure continue to exist and there is no application for judicial review of the prosecution's withholding of disclosure.

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APPENDIX A

TO THE ACCUSED:

TAKE NOTICE THAT, by accepting these materials:

  1. You agree to use them solely for the purpose of making full answer and defence to the charge(s) identified in those materials;
  2. You agree not to copy those material without the written permission of Crown Counsel assigned conduct of your case;
  3. You agree to keep these materials secure and not publish or otherwise disseminate them of their contents without the written permission of Crown Counsel assigned conduct of your case;
  4. In the event that you elect to make use of these materials for any other purpose, you agree to notify Crown Counsel of your intention to do so and seek permission of the court by filing a Notice of Motion in the trial court.

If you are unable or unwilling to comply with these conditions, you should forthwith return these materials to Crown Counsel and request that you receive controlled disclosure.

TO COUNSEL:

The attached disclosure materials are provided to you subject to the following trust conditions:

  1. THAT they will be used only for the purpose of making full answer and defence by the accused to the charge(s) identified in these materials;
  2. THAT they will be kept secure at all times. All reasonable steps will be taken to prevent them from being published or disseminated to any person not subject to these trust conditions or your client;
  3. THAT they will not be copied without the written permission of Crown Counsel;
  4. THAT if, for any reason, you cease to act for the accused, all of the attached disclosure materials will be delivered to any other counsel retained by the accused in the matter with the same trust conditions attached to them, or, on the request of Crown Counsel, returned to her/him;
  5. THAT all future disclosure provided on this file is subject to these conditions.

If you are unable or unwilling to comply with these conditions, you should forthwith return these materials to Crown Counsel and request that you receive controlled disclosure.

In order to ensure that the disclosure process is as complete as possible, your assistance is requested in advising Crown Counsel of any expert, alibi or other witness you intend to call together with their names, addresses, telephone numbers, resume, reports (where applicable) and a summary of their evidence. Should you wish to make any exclusion or remedy applications (Charter, s. 24), we would ask that you give notice of the application, the argument, the evidence and any remedy sought. Finally, should you be prepared to make any admissions of fact to shorten the length of any trial or preliminary inquiry, please address these to Crown Counsel as soon as possible.


APPENDIX B

WAIVER

I have been advised by Crown Counsel that I have the right to keep the following / the attached (circle one) information private and confidential:

 
 
 

I need not disclose this information to her/him except where ordered to do so by the court.

I have been advised that I may seek independent legal advice prior to deciding whether to disclose this information.

I have been advised by Crown Counsel that, should I elect to disclose any of this private information to her/him, the information ceases to be private. I expressly acknowledge that I have been advised that any relevant private information, which I disclose to Crown Counsel, will be provided to the accused and his lawyer(s).

With full knowledge of my right to privacy and the effect(s) of waiving that right, I hereby waive that right and give Crown Counsel and those (s)/he considers appropriate full right to review and use this information for the purpose of prosecution.

Person Waiving Privacy Right:
Witness:
Date: