Case Report – “Crown brief” production issue heading to BCCA

On February 3rd, the British Columbia Court of Appeal granted leave and expedited the appeal of an order that required the Vancouver Police Department to produce records that had become part of the Crown’s brief in a ongoing prosecution.

The plaintiff is the father of a man who was struck and killed by a motor vehicle in a hit and run. The defendant is the man charged criminally for the hit and run. The defendant’s criminal trial has been adjourned and will re-commence later this year. In the meantime, the defendant did not produce to the plaintiff the materials he received from the Crown in its disclosure. This led the plaintiff to apply for third-party production from the police. The Crown then objected, claiming litigation privilege and public interest immunity.

The Supreme Court ordered production last December. It ultimately applied a screening test like that endorsed by the Ontario Court of Appeal in D.P. v. Wagg and held that the Crown had not demonstrated that the balance of public and private interests weighed against production:

The Crown has tendered affidavit evidence suggesting that the criminal prosecution might be jeopardized by disclosure of any documents to the plaintiff because the material might find its way to potential witnesses, to the jury pool, or to persons who could seek to subvert the course of justice.  While the affidavit evidence contains general statements of possible adverse effects resulting from premature disclosure, it does not identify any specific concerns in the context of the Antunes prosecution.  Moreover, the possibility of any adverse effect can be materially reduced, or eliminated, by an appropriate undertaking from counsel and the plaintiff in the civil action.

Though this is a fairly discrete finding, in granting leave the Court of Appeal framed the issue broadly and as being about “the treatment of police investigations results in civil proceedings while criminal charges are outstanding” – that is, as being about the very principles reflected in Wagg. It indicated that hearing dates were available in late March and April and ordered the appellant’s factum to be delivered in late February.

Wong v. Antunes, 2009 BCCA 60.

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

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.