DATE: May 20, 2008
SUBJECT: DISCLOSURE IN CASES IN WHICH THE MATERIAL TO BE DISCLOSED IS THE SUBJECT MATTER OF THE OFFENCE ITSELF OR CONSTITUTES A SEPARATE OFFENCE
As outlined in the guideline Disclosure by the Prosecution, the Crown has a duty to disclose to accused persons that information which is in its possession and which is relevant to the guilt or innocence of the accused on the charge(s) alleged.
The Crown has discretion as to the manner in which this disclosure is to be provided. As a general rule, the most common manner of disclosure is simply the provision of copies of the required material at no cost to the accused. These copies are typically provided upon conditions that stipulate the use that can be made of the material and restrict its further dissemination.
The manner of disclosure is of critical concern in prosecutions in which the material that is to be disclosed is not only evidence, but constitutes the offence itself or constitutes a separate offence. Examples of such circumstance include the disclosure of:
- obscene photographs in respect of a prosecution for distributing obscene material (s. 163(1) of the Criminal Code);
- pornographic images in a prosecution for possessing, making or distributing child pornography (s. 163.1);
- audio recordings of the accused’s statements in a prosecution for advocating genocide (s. 318(1)) or promoting hatred (s. 319(2)); or
- video recordings of the acts that constitute a sexual touching in a prosecution for sexual interference (s. 151).
To disclose these items in the typical manner would not merely produce for an accused the required material relating to the investigation and prosecution of an offence, but would circulate the actual contraband materials that are themselves the subject of criminal prohibition. Moreover, the reproduction and disclosure of such materials would only add to the degradation and victimization of those who are depicted or referred to in the material. In other types of prosecutions (e.g., unauthorized possession of a restricted weapon (s. 91(2)), the disclosure of the subject-matter of the offence presents obvious safety concerns.
For all of these reasons, disclosure in such prosecutions requires a careful balancing between the constitutional right to information required to make full answer and defence, the privacy rights of any person depicted, and the overriding public interest in preventing the dissemination or other improper use of this material. This practice memorandum is intended to create a procedure that will attain this balance.
PARAMETERS OF THIS PRACTICE NOTE:
This practice memorandum applies to any material that has been seized in an investigation that has resulted in a prosecution, and in respect of which it would be an offence to distribute, circulate, possess for the purpose of distribution or circulation, or possess (“prohibited material”).
- Each Chief Crown Prosecutor shall create, for the office for which he or she is responsible, security measure that will ensure the safe and secure storage of any prohibited material received.
- If the Crown’s obligation to disclose as outlined in the guideline Disclosure by the Prosecution requires disclosure of prohibited material, the following applies (unless prior authorization for an alternative method of disclosure is granted by the responsible Chief Crown Prosecutor, Director or designate, or a court has ordered otherwise):
- defence counsel shall be given a reasonable opportunity to privately view the prohibited material, in circumstances approved by the Crown prosecutor:
- unrepresented accused shall be given a reasonable opportunity to view the prohibited material in a controlled setting (e.g., on the premises of the investigating agency, in an interview room of the institution in which the accused is being held in custody); and
- copies of the prohibited material shall not be made and shall not be permitted to be made.
- The following criteria shall apply to the consideration of whether to authorize an alternative method of providing disclosure:
- The nature of the prohibited material is a significant consideration. As regard obscene or pornographic material, the more graphic the depictions, the higher both the privacy and public interests in preventing their dissemination.
- Of significant concern is the scope of the risk to the privacy interests of persons depicted in any offensive written, audio or visual material. For example, where the material in question had been widely distributed, the provision of one copy to counsel on strict conditions may not significantly increase the risk of further distribution, or the magnitude of the invasion of privacy occasioned by the disclosure. Alternatively, that the persons depicted in the material are identifiable militates against granting the authorization sought.
- The volume of material, and its direct relevance to the proceedings is a relevant consideration. While large volume alone will not alone justify an alternative means of disclosure, large volumes of material with little or no immediate relevance to the proceedings may be disclosed in a different manner. However, where a controlled viewing would cause undue hardship for counsel, where for example multiple counsel reside in different cities, and the documents are stored in different centres, mere volume alone is an insufficient basis upon which to refuse to provide copies.
- A further relevant consideration is the ability of appropriately crafted trust conditions, or other technical means to offset privacy and public interest concerns otherwise imperilled by disclosure.
- There may exist a technological solution that will permit an alternative method of disclosure. Such solutions include disclosure on a sealed computer, where the images can not be transmitted or acquired in any way, or by way of software programs that accomplish these objectives, as well as automatically preventing access to certain data after a prescribed period of time, may bolster the effectiveness of undertakings and trust conditions.
- If prohibited material is to be disclosed to defence counsel other than by a controlled view, trust conditions ought be to imposed and the following principles apply:
- The trust conditions must be carefully crafted to address the circumstances and concerns arising in each case.
- Undertakings between counsel, or between counsel and the Court are of fundamental importance, and impose significant ethical obligations. For example, the Canadian Bar Association Code of Conduct provides:
The lawyer should give no undertaking that cannot be fulfilled, should fulfill every undertaking given, and should scrupulously honour any trust condition once accepted. Undertakings and trust conditions should be written or confirmed in writing and should be absolutely unambiguous in their terms. If the lawyer giving an undertaking does not intend to accept personal responsibility, this should be stated clearly in the undertaking itself. In the absence of such a statement, the person to whom the undertaking is given is entitled to expect that the lawyer giving it will honour it personally. If the lawyer is unable or unwilling to honour a trust condition imposed by someone else, the subject of the trust condition should be immediately returned to the person imposing the trust condition unless its terms can be forthwith amended in writing on a mutually agreeable basis.
- The use of undertakings, where an accused is represented by counsel may provide effective safeguards against improper use or distribution of sensitive material. Trust conditions must strictly regulate the control, access, storage, retention, and return of these materials. They can also appropriately prohibit the accused from possessing this material, and impose conditions regarding the return of the disclosure either at the completion of the case, or when counsel is removed from the record.
 In the context of child pornography, see discussion in R. v. Sharpe  1 S.C.R. 45 at para. 92
 Canadian Bar Association Code of Professional Conduct, revised 1996, at page 53