Bonjour. Good morning.
I am François Lacasse. My colleague Maître Yvan Poulin and I will split our presentation. I will make a brief overview of the law of disclosure, and my colleague will address the issue of disclosure in the context of a mega-case against organized crime.
In R. v. Stinchcombe—a case that you have heard of before, the 1991 leading case regarding disclosure obligations in criminal cases—the Supreme Court of Canada stated that there is a general duty on the prosecution to disclose all relevant information in possession of the crown. Prior to Stinchcombe, the disclosure procedures varied across the country from region to region, even from prosecutor to prosecutor. Basically, Stinchcombe changed all that by crystallizing a unified approach to disclosure.
The prosecution's disclosure obligations are a component of the right of every accused in Canada to make full answer and defence, a right that, as you know, is protected by section 7 of the Canadian Charter of Rights and Freedoms. Many rules govern disclosure, but I will address only the few key ones that are necessary to understand the impact of disclosure on prosecutions involving organized crime, which usually qualify as mega-cases.
The first key rule, the most important one that governs the nature of what must be disclosed, is the concept of relevance. In short, the courts have taken a very generous view of what relevance is. It is not restricted to evidence that can be adduced in court. It includes information that may be useful to the defence, whether inculpatory or exculpatory. If, in short, the information may have some use to the defence, it is relevant and thus must be disclosed. For prosecutors, it is basically defined in a negative way: only what is clearly irrelevant should not be produced, and in case of doubt, the case law tells us that we must err on the side of disclosure.
Finally in that regard, I should mention that information that is privileged need not be disclosed. This, in the context of organized crime, comprises essentially information protected by the privileges protecting informers' identities and investigative techniques.
As to timing, the obligation is triggered by a request for disclosure made by the accused or made on his behalf. Disclosure should be made before the accused is called upon to elect a mode of trial, or in summary cases, before the accused is requested to plead. That's very important as well in the context of megacases.
The law does not provide for a universal mode of disclosure. Although providing paper copies of the material is the means most resorted to, it is not the only form in use. Electronic format is a useful tool, especially in megacases, as will be discussed by my colleague.
Finally, costs and resources necessary to fulfill disclosure obligations are borne by the state. This aspect, you will guess, is also very important in the context of megacases.
In conjunction with disclosure, another very crucial factor must be taken into consideration when assessing the complexity of current criminal prosecutions; that is the challenges made by the defence to the investigation itself pursuant to the charter. This possibility entails that before assessing or determining guilt or innocence a criminal trial may and often is preceded by pretrial motions, the purpose of which is to determine the investigators' actions and to scrutinize those actions to determine their legality and constitutionality. In case of a charter breach, the law provides for remedies that can be fatal to a prosecution, including exclusions of evidence as well as stays of proceedings.
The meeting of these two aspects of modern criminal trials in Canada, disclosure and investigative review, has fundamentally changed the paradigm of criminal prosecutions in Canada. They are now focused basically on process.
That being said, I would submit nevertheless that Stinchcombe disclosure has undoubtedly served to promote fairness, transparency, and more accurate outcomes in criminal trials. However, disclosure comes with a price. It poses very significant challenges to the prosecution of organized crime cases, as will be discussed by my colleague, Maître Poulin.