Case Report – SCC broadens scope of Crown’s “first party” disclosure duty and more

25 Jan

On January 16th, the Supreme Court of Canada issued a unanimous judgement that broadens the scope of the Crown’s duty of disclosure to an accused person and facilitates an accused person’s right to third-party production.

On Crown-to-accused (“first party” or Stinchcombe) production, the Court held that the Crown is not a single entity for the purposes of its obligation to disclose information in its possession and control. It did, however, stress that the “investigating Crown” has a positive duty to build-out the Crown brief by making “reasonable inquiries” of other Crown agencies and departments. This duty, said the Court, includes a duty to collect and disclose records of police misconduct, at least where an officer is likely to be a witness at trial has record with some arguably relevant blemishes. The broadening of the Stincombe duty means that accused persons will no longer face the prospect of fishing for records of police misconduct or other similar information by bringing third-party (O’Connor) motions.

The Court also modified the two stage O’Connor process: an accused person must still establish “likely relevance” to justify a court review of third-party records, but at the second stage reviewing judges must now focus on the “true relevance” of the records rather than the competing interest in protecting personal privacy. If a judge concludes that records examined are truly relevant, the Court held they should be ordered to be disclosed despite any subject’s competing privacy interest. Reviewing judges should still be concerned with personal privacy, but the Court suggested that barring production was a less appropriate means of protecting personal privacy than means such as redaction and protective orders. While establishing this production-favoring rule, the Court stressed that there is a higher standard for production of records in sexual assault cases as such production is governed by the Criminal Code and Mills.

The Court has posted two more detailed summaries of the judgment, here (by Tilley) and here (by Warkentin).

R. v. McNeil, 2009 SCC3.

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