That's right. I think the answer to our question lies in how we define “relevance” and “clear irrelevance”. That is the operative standard we're working with. The police investigators go out and collect the evidence. There is a corollary obligation on them to turn over all the evidence to the prosecutor. The prosecutor will sift through it, but it all goes out to the defence. It was one of the rationales that informed Stinchcombe.
There is very little discretion exercised by the crown in separating the wheat from the chaff—between what is turned over from the police to the prosecutor and what is turned over from the prosecutor to the accused. The reason we don't exercise much discretion is that we don't want to quibble over what is clearly irrelevant. If it's clearly irrelevant, what difference does it make? We have to revisit our notion of what “clearly irrelevant” means. Certainly, as cases have mushroomed, you have your evidentiary component, which is what police officers do—the surveillance, the wiretaps, what will actually make up the case to meet. Then you have another component, which is corporate disclosure, and which essentially amounts to the communications exchanged between police officers and various investigative branches.
My point is, under the current disclosure regime, rather than quibbling about all the other corporate disclosure, which can actually be far more significant in volume than the actual court case to meet, we simply disclose it to the defence. Then it can take months if not years for the trial to come to pass as the accused sifts through all this other corporate disclosure, which has no bearing on the essence of the case. If we revisit “clear irrelevance”, I think we may actually be able to persuade the courts all the way up the chain to rethink the way they view disclosure, even in the light of the charter.