Report of the Attorney General’s

Advisory Committee
on

Charge Screening, Disclosure,

and
Resolution Discussions

Ontario
 KF Ontario. Attorney General's Advisory
9619 Committee on Charge Screening,
0571 Disclosure and Resolution
1993 Discussions
v. 1 Report

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KF
Ontario. Attorney General's Advisory
9619 Committee on Charge Screening,
0571 Disclosure and Resolution
1993 Discussions
v. 1 Report
c.2

ONTARIO
ministry of the
attorney general
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 MINISTRY OFTHB
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 MINISTRY OF THE
ATTORNEY GENERAL 1 8 1998
x LAW LIBRARY

Report of the Attorney General’s

Advisory Committee
on

Charge Screening, Disclosure,

and
Resolution Discussions

The Honourable G. Arthur Martin, O.C., O.Ont., Q.C., LL.D.

Chair

Ontario
Published by the
Ontario Ministry of the Attorney General

® Queen’s Printer for Ontario, 1993

Canadian Cataloguing in Publication Data

Ontario Attorney General’s Advisory Committee on Charge Screening, Disclosure and

Resolution Discussions.
Report of the Attorney General’s Advisory Committee on Charge Screening,
Disclosure, and Resolution Discussions

Includes bibliographical references.

ISBN 0-7778-1515-X

1. Prosecution-Ontario. 2. Indictments-Ontario. 3. Plea bargaining. I. Ontario

Ministry of the Attorney General. II. Title.

KE0574. A25057 1993 345.713’072 C93-092583-1

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 Advisory Committee to the Attorney General
on Screening of Criminal Charges,
Resolution Discussions and Disclosure

The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D.

Chair

Mr. B. Lee Baig, Q.C. Mr. D. Fletcher Dawson

Committee Member Committee Member

Mr. Joe DeFilippis Chief Julian Fantino

Committee Member Committee Member

Superintendent Wayne Frechette Ms. Mary Hall

Committee Member Committee Member

Mr. S. Casey Hill Mr. Earl Levy, Q.C.

Committee Member Committee Member

Inspector Roily MacDonald Ms. Katherine McLeod

Committee Member Committee Member

Mr. Daniel M. Mitchell Staff Sgt. Alfred W. Oakley

Committee Member Committee Member

Mr. W. Brian Trafford, Q.C. Ms. Beverly Ward

Committee Member Committee Member

David Butt
Researcher
.

v J
 The Advisory Committee to the Attorney General

The Honourable Marion Boyd

Attorney General

The Honourable
G. Arthur Martin,
O.C. Dear Madam Attorney General:
Chair
The undersigned are pleased to present the Report of the Attorney
Lee Baig General’s Advisory Committee on Charge Screening, Disclosure,
D. Fletcher Dawson and Resolution Discussions.
Joe DeFilippis
Julian Fantino
Wayne Frechette
Mary Hall
S. Casey Hill
Earl Levy The Honourable G. Arthur Martin, O.C., O. Ont., Q.C., LL.D.
Roily MacDonald Chair
Katherine McLeod
Daniel M. Mitchell
Alfred W. Oakley
Brian Trafford Mr. B. Lee BaigVQ.C. Mr. D. Fletcher Dawson Mr. Joe DeFilippis
Member Member Member
Beverly Ward
Members

rC^~:rj-t-JUcJk jUtC,
David Butt Superintendent Wayne Frechette Ms. Mary Hall
Researcher Member Member

720 Bay Street

9th Floor
Mr. S. Casey Hill Mr. Earl Levy, Q.C. Inspector Roily MacDonald
Toronto, Ontario Member Member Member
M5G 2K1

voice:
(416) 326-2099 IfcturCAUft L MCtacc/
Ms. Katherine McLeod Mr. Daniel M. Mitchell Staff Sgt. A. W. Oakley
fax: Member Member Member
(416) 326-4656

Mr. W. Ikian Trafford, Q.C. Ms. Beverly Ward

Member Member
 TABLE OF CONTENTS

INTRODUCTION.1

The Mandate and Proceedings of the Committee. 1

CHAPTER I: AN OVERVIEW OF THE ISSUES BEFORE THE COMMITTEE . . 11

A. The Importance of the Early Stages of the Criminal

Process . 11

B. Criminal Procedure and the Early Stages of the

Criminal Process .20

C. Principal Aspects of the Committee’s Recommendations .25

1. The Role and Responsibility of Counsel

and the Police.25

2. The Need for Sound Organization and Management .41

CHAPTER II: CHARGE SCREENING .51

A. The Threshold Test for Commencing or Continuing

a Prosecution.51

1. The Threshold Standards or Tests Currently

Applied. 52

2. The Prima Facie Case Threshold Test .55

3. The Proposed Standard of the Law Reform

Commission of Canada .59

4. The Committee’s Formulation of the

Threshold Test .60

5. The Threshold Test and the Public Interest.74

 LI

6. Various Public Interest Factors that May

be Relevant.77

The Gravity of the Incident.78

Political Consequences.80

The Victim .82

The Availability of Compensation,

Restitution, or Reparation.87

The Status in Life of the Accused

or Victim.89

Public Confidence and Public Order.92

National Security and International

Relations.95

Alternatives to Prosecution .96

Other Factors.99

7. The Scope of the Threshold Test. 104

8. The Threshold Test and Policies, Directives,

and Guidelines in General. 104

B. Should There Be Charge Screening in Ontario?. 113

C. Should Charge Screening Be Pre- or Post-Charge?. 120

D. The Mechanics of Post-Charge Screening. 127

1. The Timing of Post-Charge Screening . 128

2. Information Required by the Crown

for Charge Screening . .. 130

3. The Flow of Information Between Crown Counsel

and the Police. 133
 Ill

4. Other Aspects of Post-Charge Screening . 136

5. The Personnel Implications of Post-Charge

Screening . 141

CHAPTER III: DISCLOSURE . 143

A. The Evolution of Disclosure in Ontario . 144

B. The Stinchcombe Case. 145

C. The Committee’s Approach to Disclosure. 149

D. General Recommendations With Respect to Disclosure . 150

1. Disclosure Recommendations Pertaining

to Investigations . 150

2. Ethical and Legal Obligations Relating

to Disclosure. 166

The Police. 167

Crown Counsel . 170

Defence Counsel . 175

3. Disclosure and Summary Conviction Offences . 184

4. Other Recommendations. 189

E. Recommendations Relevant to a Proposed New

Disclosure Directive. 193

1. Purpose and General Principles

of Disclosure. 195

Possession and Control 197

 iv

The Meaning of "Relevant" for Disclosure Purposes. 199

Limitations on the Use of Information for Impeachment

Purposes . 202

The Represented Accused. 217

The Unrepresented Accused . 218

2. Particular Requirements . 221

Criminal Records of Witnesses . 238

F. Implementing Disclosure . 262

1. Police Disclosure to the Crown . 264

2. Paying for Disclosure. 266

3. Disclosure and Accused Persons in Custody. 273

CHAPTER IV: RESOLUTION DISCUSSIONS. 275

A. The Development of Resolution Discussions . 275

B. Recommendations Regarding Resolution Discussions. 291

1. Recommendations Relating to the Conduct

of Resolution Discussions . 291

2. Recommendations Concerning Courtroom Practice

Following Resolution Discussions. 315

C. Procedural Aspects of Resolution Discussions. 334

D. Pre-Hearing Conferences. 348

 V

CONCLUDING RECOMMENDATION. 387

APPENDICES

APPENDIX A: The Mandate of the Committee . 391

APPENDIX B: Disclosure Policy Statement . 395

APPENDIX C: Issues: Charge Screening, Disclosure,

Resolution Discussions . 397

APPENDIX D: Invitees for Consultation. 405

APPENDIX E: Submissions Received. 413

APPENDIX F: Invitees for Consultation - By Location . 417

APPENDIX G: Persons Who Made Oral Submissions . 431

APPENDIX H: Issues: Charge Screening, Disclosure,

Resolution Discussions - Revised for the Judiciary. 435

APPENDIX I: Study of the Cost of Disclosure. 443

APPENDIX J: Summary of the Committee’s Recommendations . 461

APPENDIX K: Windsor Joint Forces Court Services: A Successful

Approach to the Early Stages of the Criminal Process. 481

APPENDIX L: Financial Analysis of the Committee’s

Recommendations. 497
 INTRODUCTION
The Mandate and Proceedings of the Committee

In June, 1991, the Attorney General of Ontario, the Honourable Howard Hampton, formed

an Advisory Committee to study the early stages of the criminal process, namely, charge

screening, disclosure, and resolution or plea discussions. The Mandate of the Committee

is reproduced in its entirety as Appendix A to this Report. The Mandate reads in part as

follows:

1. The mandate of the Committee is to inquire into, and make

recommendations on, the practices of the Criminal Law Division relating to
disclosure, the vetting of cases, and the conduct of resolution discussions.

2. The objective of the Committee is to ensure the quality of the administration

of justice in Ontario, including the right to make full answer and defence, the privacy
of witnesses, and the need to preserve the truth-seeking capacity of the trial and the
public confidence in the administration of justice.

3. In so far as the Committee is to focus upon disclosure practices in Ontario,

it is to review the existing directive of the Attorney General, both as to principles
and to practical application, including the need to ensure uniformity of application
across the province, to increase the efficiency of the Courts, and to reduce the delay
in bringing matters to trial.1

4. In so far as the Committee is to focus upon the vetting of charges, it is to

consider and determine whether or not there should be vetting of charges and, if so,
at what stage of the proceedings the vetting should occur - pre- or post-charge.

5. In so far as the Committee is focusing upon resolution discussions, it is to

consider the principles underlying such discussions and the timing of them.

The current Attorney General's Directive on disclosure in criminal cases is reproduced as Appendix B
to this Report.
 -2 -

The Chair of the Committee was the Honourable G. Arthur Martin, O.C., O.Ont.,

Q.C., LL.D., formerly one of Canada's leading defence counsel, and then a Justice of the

Court of Appeal for Ontario, until his retirement at age 75. Pursuant to its Mandate, the

Committee had the following membership: four members of the Ontario defence Bar; four

members of the Ministry of the Attorney General's Criminal Law Division; one

representative of the Ministry of the Solicitor General; three representatives of the police

in Ontario; one representative of the Royal Canadian Mounted Police; and one

representative from the federal Department of Justice.

Members of the Committee were chosen by their respective constituent groups.

Defence counsel members of the Committee were Mr. B. Lee Baig, Q.C., Thunder Bay; Mr.

D. Fletcher Dawson, London; Mr. J. David McCombs, Toronto; and Ms Katherine McLeod,

Toronto. In late May, 1992, Mr. McCombs was appointed a judge of the Ontario Court of

Justice, General Division. Mr. Justice McCombs withdrew from the Committee upon his

appointment. He was replaced by Mr. Earl Levy, Q.C., of Toronto.

The four representatives of the Ministry of the Attorney General's Criminal Law

Division were Ms Mary Hall, Crown Attorney, Scarborough; Mr. S. Casey Hill, General

Counsel, Crown Law Office - Criminal, Toronto; Mr. Daniel M. Mitchell, Crown Attorney,

Thunder Bay; and Mr. W. Brian Trafford, Q.C., Director of Criminal Prosecutions, Toronto.

Mr. Trafford was appointed a judge of the Ontario Court of Justice, General Division, as

the Committee's Report was being printed. The representative of the Ministry of the

Solicitor General was Ms Beverly Ward of Toronto, the Director of the Ministry's Policy

Development and Coordination Branch. The representatives of the police in Ontario were

Chief Julian Fantino, London City Police; Superintendent Wayne Frechette, Criminal

Investigations Branch, Ontario Provincial Police, Toronto; and Staff Sergeant Alfred W.

Oakley, Windsor Police Services. The Committee member from the Royal Canadian

Mounted Police was Inspector Roily MacDonald, Commercial Crimes Section, Toronto.
 -3-

The Federal Department of Justice representative on the Committee is Mr. Joe DeFilippis,

Senior Counsel, Criminal Prosecutions Section, Toronto Region.

The Committee has been assisted in their work by a staff of two counsel, Ms C. Jane

Arnup and Mr. David Butt, both of the Crown Law Office - Criminal in Toronto. Ms Arnup

was the Committee's Secretary, until her appointment in March, 1993, as Chair of the

Ontario Criminal Code Review Board. She was assisted most ably by Ms Rose Price. Mr.

Butt was the Committee's Researcher.2 Special thanks are due to Mr. Butt for his

important contribution in the preparation and writing of this Report to reflect the views of

the Committee.

Throughout the summer of 1991, the Committee formulated its procedure, and

individual members of the Committee met with their constituent groups. By the end of the

summer, in addition to establishing its procedure, the Committee had identified and

expressed 43 principal issues pertaining to charge screening, disclosure, and resolution

discussions, the three matters within its mandate. The principal concerns pertaining to the

screening of criminal charges included such issues as the strength of the Crown's case

necessary to initiate or continue with a prosecution, the range of factors apart from evidence

relevant to a decision to prosecute, the timing of charge screening, the types of information

necessary to screen a charge, and the effect of charge screening on subsequent conduct of

the prosecution. The principal concerns pertaining to disclosure included its scope, witness

privacy concerns, witholding disclosure, timing of disclosure, defence obligations, police

obligations, and efficient disclosure practice. The principal concerns relating to resolution

discussions included timing, the role of the pre-trial conference, the role and input of the

victim, the effect of resolution agreements and joint submissions as to sentence, and the

conduct of sentencing proceedings after an agreed resolution. The principal issues relating

2
Emile Carrington, Alex Kurke, and David Maylor, articled students-at-law with the Crown Law Office -
Criminal, at the Ministry of the Attorney General, provided Mr. Butt with diligent research assistance.
 -4-

to charge screening, disclosure, and resolution discussions are set out in their entirety in

Appendix C.

The Committee concluded early in its existence that its working methods would be

in large measure consultative. In the summer of 1991, the Committee, guided by a

subcommittee formed for this purpose, prepared a list of groups and individuals whose input

would be sought on all matters within the Committee's Mandate. Those invited to make

oral and/or written submissions to the Committee included members of the defence bar,

Crown counsel, and police organizations from across Ontario, from every province and

territory in Canada, and from representative American organizations. Leading criminal law

scholars from law schools in Ontario were invited to make written submissions. In addition,

the Committee sought the input of numerous victim or witness groups, and special interest

groups or organizations with a potential interest in the functioning of the justice system in

Ontario. In total, some 252 groups or individuals were invited to make submissions to the

Committee. All groups and individuals were sent the Committee's principal issues relating

to charge screening, disclosure and resolution discussions and invited to discuss those or

other issues of concern within the Committee's mandate. These invitations were sent out

in September, 1991, requesting written submissions by late November, 1991. Those who had

not responded by November were invited a second time to make written submissions. The

groups and individuals invited to make submissions are listed in Appendix D to the

Committee's Report. The written submissions received by the Committee are listed in

Appendix E.

The Committee formed the view that in order to appreciate fully the strengths and

weaknesses in the administration of justice across the province, it would be necessary to do

more than consult with a broad range of interested parties. It would also be necessary to

consult with parties interested in or involved in the administration of justice in many diverse

regions and communities across the province. Consequently, the Committee sought

submissions not only from a broad spectrum of individuals or groups, but also from

interested parties in 36 Ontario communities large and small, from Sioux Lookout to St.
 -5-

Catharines. Appendix F of the Report breaks down by location the groups and individuals

listed in Appendix D that were invited to make submissions.

In addition to soliciting written submissions from interested groups and individuals,

the Committee also heard oral submissions throughout the autumn of 1991. Again, those

invited to make oral and/or written submissions in person were sent the Committee's

principal issues relating to charge screening, disclosure and resolution discussions in

advance, and invited to discuss those or other issues of concern within the Committee's

Mandate. In-person submissions were organized so as to have in attendance before the

Committee at each hearing, groups or individuals with some identity of interest. This kept

the repetition of similar submissions to a minimum, while allowing all participants to make

their views fully known. Following completion of the original schedule of hearings, an

additional session was held to accommodate all those who had been unable to attend as

initially planned. The schedule of hearings and the participants on each date were as

follows:

Tuesday, 15 October, 1991 Elected Law Society Benchers with experience in

criminal law

Wednesday, 16 October, 1991 Defence Counsel, Toronto

Tuesday, 22 October, 1991 Crown Counsel, Toronto and area

Wednesday, 23 October, 1991 Defence Counsel, outside Toronto

Tuesday, 5 November, 1991 Crown Counsel, outside Toronto

Wednesday, 6 November, 1991 Police

Tuesday, 12 November, 1991 Organizations

Wednesday, 13 November, 1991 Various invitees, unable to attend as originally

scheduled
 -6 -

A complete list of those who attended and were invited to present oral and/or written

submissions to the Committee is found at Appendix G of this Report.

The position of victims of crime has been of particular interest to the Committee.

Consequently, the Committee was careful to solicit input as to the concerns of victims. The

Committee received much information in response to its solicitations that was very helpful.

This included important information on victims with special needs, such as child victims, or

victims with physical or mental handicaps. The Committee is grateful for the assistance of

this type that was received, and has accorded these responses careful and comprehensive

attention.

The oral and written submissions received from other groups and individuals has

likewise been of great assistance to the Committee. Many individuals and groups put forth

considerable effort - often, no doubt, at some expense - to aid the Committee in its work.

Such effort alone is much appreciated. The Committee has heard and been able to review

numerous thoughtful, eloquent, and wise observations about the administration of justice

throughout Ontario, from diverse communities large and small. The Committee has

benefitted not only from the quality of the submissions made, but also from the breadth and

variety of experience with the criminal justice system which the submissions represent. The

process of hearing and reviewing submissions was not only informative, but educational for

all members of the Committee, who extend their gratitude for the assistance which the

submissions provided.

In addition to receiving submissions, the Committee has, of course, reviewed the

relevant case law and the literature. The Committee's Mandate necessarily covers a large

range of issues that have, to varying degrees, already received careful consideration in

various jurisdictions by the courts, scholars, Royal Commissioners, and law reformers alike.

The Committee has been greatly aided by much of this writing. It has informed the views

of Committee members, narrowed issues, and more than occasionally provided the weight

of authority where necessary to resolve a close question.

 -7-

The Committee's mandate provided that it was to consult with the judiciary prior to

completing its final report. Before engaging in discussions with the judiciary, the Committee

thought it appropriate to revise its statement of the principal issues pertaining to charge

screening, disclosure, and resolution discussions. The Committee was concerned that it not

seek the views of judges on issues that might arise in court for decision before those same

judges. The revised statement of principal issues, as provided to the judiciary, is Appendix

G of this Report.

Following revision of the statement of the principal issues pertaining to charge

screening, disclosure, and resolution discussions, the statement was submitted to the Chief

Justice of Ontario, the Chief Justice of the Ontario Court, and the Chief Judge of the

Provincial Division, for circulation among the judiciary as they saw fit. A representative

group of the Committee then attended upon the judges of the Court of Appeal, the judges

of the Ontario Court (General Division), and the judges of the Ontario Court (Provincial

Division). At each meeting with the judiciary, there was a different representative group

of the Committee so as to ensure that as many Committee members as possible had the

benefit of some judicial insight into the issues at hand. The only constant attendees at all

three meetings were the Chair and the Committee staff, Ms Arnup and Mr. Butt. The dates

of the three meetings with the judiciary, and the judges in attendance on those dates, were

as follows:

Court of Appeal
19 November, 1991 The Hon. C.L. Dubin, C.J.O., The Hon. J.W. Morden, A.C.J.O.,
The Hon. Mr. Justice H. Krever, The Hon. Mme Justice L.
Arbour, The Hon. Mr. Justice C.A.A. Osborne, and The Hon.
Mr. Justice D.H. Doherty

General Division
21 November, 1991 The Hon. F.W. Callaghan, C.J.O.C., The Hon. R.R. McMurtry,
A.C.J.O.C., The Hon. Mr. Justice T.G. Zuber, The Hon. Mr.
Justice A.G. Campbell, The Hon. Mr. Justice D.G. Humphrey,
The Hon. Mr. Justice M.J. Moldaver, and The Hon. Mr. Justice
J.D. Watt
 -8 -

Provincial Division
2 December, 1991 His Honour Chief Judge S.B. Linden, Her Honour Judge A.E.
Bonkalo, His Honour Regional Senior Judge J.D. Evans, His
Honour Judge W.S. Gonet, His Honour Judge W.P. Hryciuk,
His Honour Regional Senior Judge B.W. Lennox, Her Honour
Judge D.K. Livingstone, His Honour Judge A. Zuraw

In addition to meeting with the judiciary on the above dates, the Committee, after

consultation with Chief Justice Callaghan and Chief Judge Linden, had its members from

Northern Ontario interview Mr. Justice S. Loukedelis, Senior Regional Judge of the General

Division Northeast Region, Mr. Justice S.R. Kurisko of the General Division Northwest

Region, His Honour Regional Senior Judge G.E. Michel of the Provincial Division

Northeast Region, and His Honour Judge R.D. Clarke of the Provincial Division Northwest

Region. The Committee also received written submissions from His Honour Judge C.E.

Perkins, and His Honour Judge C.R. Merredew.

The Committee thankfully acknowledges the valuable time, assistance, and

unqualified support it has been afforded by the judiciary at all levels throughout Ontario.

The judicial perspective has been vital to the Committee's deliberations, and we are grateful

that it has been provided to us so generously and comprehensively.

After hearing and receiving all of the above oral and written submissions, the

Committee embarked on a detailed consideration of the issues covered by its Mandate. The

Committee met regularly, but was limited to evenings and weekends, as all Committee

members, including the Chair, are unpaid volunteers. Full-time professional commitments

necessarily had to be maintained throughout the Committee's deliberations. Subcommittees

were struck where study of particular issues was thought necessary to the Committee's

deliberations. For example, a subcommittee was formed to ensure that the concerns of

victims of crime were fully addressed. As a result, the Committee has been careful to

accord, wherever appropriate, due recognition to the position and interests of victims in the

Committee's recommendations. Ultimately, the Committee's deliberative processes led it

to make some recommendations that go beyond the principal issues it initially identified as
 -9-

worthy of consideration. These additional recommendations were thought necessary to

round out the Committee's consideration of the issues within its Mandate.

The Committee's Mandate required it to consider the financial implications of any

recommendations it might make. The financial implications of various proposals relating
to charge screening, disclosure, and resolution discussions were, therefore, carefully
considered by the Committee. However, while the Committee is aware that public money
for the administration of justice must be spent responsibly, and with restraint, costs were
none the less a secondary concern. The Committee has sought first and foremost to ensure
that its recommendations are fair, and can enhance the administration of criminal justice
in Ontario. The Committee has not refrained because of the expense entailed, from making
any recommendations thought necessary.

In July, 1992, the Committee made a confidential interim report to the Attorney
General. At that time, most of the Committee's recommendations were provided to the
Attorney General in summary form. This interim report served two purposes. First, it
informed the Attorney General of the progress being made by the Committee in its work.
Second, it provided a small group of senior officials in the Attorney General's Ministry, who
were privy to the contents of the confidential interim report, with an appropriate opportunity
to begin assessing in detail the financial and other implications of the Committee's
recommendations. The Committee is grateful for the capable assistance provided by
financial planning experts within the Ministry of the Attorney General's Criminal Law
Division. The Committee also received helpful input as to the financial implications of its
recommendations pertaining to police practices from financial personnel within the Ministry
of the Solicitor General. A summary of the financial analysis of the Committee's
recommendations prepared by the Ministries of the Attorney General and Solicitor General,
accompanied by the Committee's commentary thereon, is attached as Appendix L to this
Report.
 -10 -

The deliberations of the Committee have culminated with the delivery of this Report

to the Attorney General, and to the public. Consistent with the Committee's Mandate, the

Report seeks to convey practical proposals that, in the Committee's view, accord with sound

principles. Therefore, while reference is made to the case law and literature where

appropriate, the emphasis is on addressing practical concerns in the administration of justice

in Ontario. As such, the Report is not a scholarly treatise on the subject matter it covers.

Neither is the Report a dissertation on comparative pre-trial criminal procedure. The

Committee has had the benefit of abundant written material from other jurisdictions on the

issues within its Mandate. These materials have provided much food for thought from both

a practical and a theoretical perspective. None the less, the Committee's broad

consultations within Ontario have clearly demonstrated the need for an approach to the

early stages of the criminal process that reflects not only Ontario's experience, but more

particularly, that is sensitive to the varying experiences of localities across the province in

administering criminal justice. Therefore, the Committee has found itself agreeing with and

endeavouring to adhere to an earlier observation made in the Report of the Ontario Courts

Inquiry that recommendations must be tailored to the needs of this province.3

To the greatest extent possible, the Committee sought consensus in arriving at

recommendations. Building consensus within a fifteen-member committee, particularly one

whose membership is as diverse as this Committee's, can at times be unwieldy, and is

inevitably a time-consuming exercise. However, at the same time, the Committee benefitted

greatly from the diverse perspectives that such a broadly representative and hard-working

membership was able to contribute. At the end of the day, the Committee is pleased with

the level of consensus it has been able to achieve among its diverse membership on a large

number of thorny practical and conceptual issues. While the Committee takes full

responsibility for any shortcomings in its work, the Committee also hopes that its efforts will

contribute toward maintaining and perpetuating the highest of standards in the

administration of criminal justice, which currently exist in Ontario.

3
See the Report of the Ontario Courts Inquiry (the Zuber Report), Queen's Printer for Ontario, pp. 3-4.
 CHAPTER I: AN OVERVIEW OF THE ISSUES BEFORE THE COMMITTEE

A. The Importance of the Early Stages of the Criminal Process

As the Mandate requires, the focus of the Committee's deliberations and recommendations

has been on the initial stages of the criminal trial process. The importance of the early

stages of the criminal process cannot be overstated. Much of this importance arises from

the nature of criminal law itself, its great worth as part of the fabric of a community and a

nation.1 In R. v. MacDougall (1991), 1 O.R. (3d) 247 at 261-262, the Court of Appeal

endorsed the following vision of the criminal law, expressed by the Law Reform Commission

of Canada in its 1977 report, Our Criminal Law, at p. 27:

Criminal law operates at three different stages. At the law-making stage it

denounces and prohibits certain actions. At the trial stage it condemns in
solemn ritual those who commit them. And at the punishment stage it
penalizes the offenders. This, not mere deterrence and rehabilitation, is what
we get from the criminal law - an indirect protection through bolstering our
basic values.

The initial stages of any process so central to a community are bound to be

important, simply by virtue of being part of that process. However, the initial stages of the

criminal process have additional significance that arises from the axiom that the criminal law

is to be used sparingly. Again, in MacDougall, supra, at p. 262, the Court of Appeal, quoting

with approval from the Law Reform Commission of Canada, made this latter point:

... criminal law is not the only means of bolstering values. Nor is it necessarily
always the best means. The fact is, criminal law is a blunt and costly instrument
- blunt because it cannot have the human sensitivity of institutions like the
family, the school, the church or the community, and costly since it imposes
suffering, loss of liberty and great expense.

1 It has been recognized for centuries that the criminal law fulfils one of the highest purposes of organized
society. See, for example, Thomas Hobbes, The Leviathan (1651) (Penguin Edition 1968), Part II, Chapter 17,
at p. 223; William Blackstone, Commentaries on the Law of England (1769), Volume IV, Chapter I, at pp. 2-3;
and Immanuel Kant, The Philosophy of Law: An Exposition of the Fundamental Principles of Jurisprudence as
The Science of Right (translated 1887 by W. Hastie), at pp. 195-196.
 -12 -

So criminal law must be an instrument of last resort. It must be used as little as

possible. The message must not be diluted by overkill... [emphasis added by the
Court of Appeal]

Anyone concerned that the criminal law is to be used sparingly must of necessity pay

particular attention to its early stages. It is in the early stages where the criminal process

gathers a momentum that is not easily overcome, and where it displaces other perhaps more

sensitive means of addressing the problem at hand. This theme will be developed further

by the Committee in relation to the public interest factors that govern the commencement

and continuation of a prosecution.

Apart from the criminal law being costly and blunt, as the Court of Appeal observed,

there are other reasons for using it with restraint, which naturally focus attention on the

early stages of the process. It cannot be forgotten that the criminal law is always capable

of being used oppressively, or of appearing to be used oppressively. Abuse or misuse of the

criminal process is always a matter of grave concern. As one commentator has observed,

"the threat of imprisonment makes the criminal sanction an especially grave and terrifying

one."2 The danger of at least perceived misuse of the criminal law commences at the

earliest stages of the process: just as the possibility of imprisonment looms from the moment

the charge is laid, so does the danger of misuse of this possibility. Consequently, to avoid

any perception of misuse, it is necessary to remain concerned about how the criminal

process operates in those early stages.

To further appreciate the importance of the early stages of the criminal process, it

is necessary to understand another of its qualities, apart from its blunt nature, its cost, and

its potential for oppressive misuse: that is, the breadth of the impact of the process as a

whole, considered at each of its various stages. Professors Kamisar, LaFave, and Israel

A. S. Goldstein, "The State and the Accused: Balance of Advantage in Criminal Procedure" (1960), 69 Yale
L.J. 1149.
 -13-

helpfully characterize the criminal process by drawing an analogy to a funnel.3 The funnel

analogy helps to illustrate how, from the perspective of those members of the public directly

involved, the criminal process has its widest impact at its earliest stages. Clearly, at the

earliest stages of the criminal process, when there are the greatest numbers of accused

persons, there are also the greatest numbers of victims, witnesses, investigating officers,

defence counsel, Crown counsel, and various support personnel involved.

Given that the criminal justice funnel is broadest where cases first enter, it follows

that sound policy at the earliest stages in this fundamentally important area of social

regulation has the greatest potential to enhance the reputation of the administration of

justice among the broadest group of participants. Conversely, any shortcomings in the initial

stages of the process will adversely affect more participants than anywhere else in the

system. Seen in this way, the early stages of the criminal process have heightened

importance. Therefore, added to the concerns that these early stages work well because the

criminal law is fundamentally important, yet blunt, costly, and potentially oppressive, is the

concern that the early stages work well because they have the broadest impact on those

involved. In short, while the administration of justice must be sound at every stage, nowhere

is soundness more important than at the outset.

The importance of sound practices and procedures at the lip of the criminal justice

funnel in Ontario is emphasized by considering the actual number of people involved.

Currently, the Ontario Court (General Division), Ontario Court (Provincial Division), and

3
Professors Y. Kamisar, W.R. LaFave and J.H. Israel, in Modem Criminal Procedure 6th ed., 1986, state
as follows at p. 15:

If one were to draw a diagram of the criminal justice process, charting the numbers
of persons processed at each stage, the shape of the diagram would be roughly that of
a funnel. A great number of persons are subjected to the process at its initial stage
(pre-arrest investigation), and at each subsequent stage, fewer and fewer persons are
involved. There are more persons investigated as suspects than arrested, more persons
arrested than charged, more persons charged than finally brought to adjudication, more
persons adjudicated than found guilty, and more persons found guilty than subjected
to incarceration.
 -14-

Youth Court, combined, dispose of more than 600,000 criminal charges a year.4 While

accused persons often face multiple charges,5 it is none the less obvious that great numbers

of accused persons are directly affected by the criminal process at its early stages. Further,

for every accused, there are also one or more investigating officers, defence counsel, Crown

counsel, untold numbers of victims and witnesses, and, unless a charge is withdrawn prior

to first appearance, court room personnel, such as judges, juries, registrars, and court

reporters. Thus, the total number of people directly involved in the criminal process in

Ontario in a typical year can safely be estimated to be in excess of one million. Most of

these people will invariably have some direct involvement in the earliest stages of the

criminal proceeding. Therefore, all of these people will be directly affected to a greater or

lesser extent by the manner in which the early stages of the criminal justice process unfold.

While the principal focus of the system must clearly be upon the accused person, all of the

others have vital roles to play, without which the system could not function. The roles,

rights, and responsibilities of all these people must be accommodated as fully as the other

values of the criminal justice system permit. Thus, the needs which the criminal process

must meet in its early stages are not only diverse, but very broad.

The funnel analogy, particularized by reference to the actual size of the criminal

justice system in Ontario, demonstrates the great potential of the system to have a broad

impact early in the criminal process. In a way, however, even the funnel analogy fails to

capture the true impact of the criminal justice process in its early stages. Therefore, the

4 According to the Attorney General's Court Statistics Annual Report for Fiscal 1990-1991, the Ontario
Court (Provincial Division), Youth Court, and the Ontario Court (General Division) combined, disposed of the
following numbers of criminal cases between 1987 and 1991. (These numbers exclude provincial offences in adult
court and summary conviction appeals.) 1987-88: 481,118; 1988-89: 503,432; 1989-90: 555,289; 1990-91: 608,702.

5 For example, in Youth Court, in 1987-88, when there were 68,762 charges received there were 44,639
young persons charged. In 1988-89, there were 76,811 charges received and 48,719 persons charged. In 1989-
1990, there were 86,771 charges received with 55,698 persons charged and, in 1990-1991, there were 103,752
charges received with 62,049 persons charged.
 -15-

analogy fails to capture every aspect of the great need for the early stages to operate in a

fundamentally sound and fair manner.

The vast majority of cases in the Ontario Courts are ultimately resolved by way of

guilty plea. For example, in the Ontario Court (Provincial Division), between January 1 and

December 31, 1992, a plea was entered to approximately 286,160 charges. Of those, 230,

434, or 81 per cent, were guilty pleas.6 Furthermore, fully 48.6 per cent of those guilty

pleas were entered less than two months after the charges were laid, and 68 per cent were

entered less than four months after the charges were laid.7

The high rate of early guilty pleas may tend to indicate that most criminal charges

are responsibly laid. However, the high rate of early guilty pleas is also a reason for

vigilance and careful attention, on a number of fronts, to the early stages of the criminal

process that immediately precede such a high proportion of guilty pleas. The funnel

analogy of the criminal process illustrates the importance of sound early practices and

procedures because of the breadth of the impact that those practices and procedures can

have. However, what the funnel analogy fails to capture is that, very shortly after entering

the criminal justice system, a large number of cases exit by way of guilty plea without ever

passing through the various later stages, such as preliminary inquiry and trial, where the bulk

of the procedural protections in the administration of justice exist. In other words, for a

large proportion of accused persons, victims, and witnesses, the early stages of the criminal

process are the only stages they ever encounter: these early stages, in effect, are the criminal

6 Ministry of the Attorney General ICON data base. Numbers are approximate because statistics are kept
by disposition, rather than plea. For example, the statistics do not reveal whether a dispostion by way of a stay
was before or after plea. The estimate provided is the most conservative based on the statistics. See also O.E.
Fitzgerald, The Guilty Plea and Summary Justice (1991), at p. 1, wherein the author asserts that 70-95 per cent
of all cases are resolved by way of guilty plea; and Sentencing Reform: A Canadian Approach - Report of the
Canadian Sentencing Commission (1987), at p. 406.

7
Ministry of the Attorney General ICON data base. During the same period of time 238,799 charges were
withdrawn by the Crown. Such a statistic is consistent with widespread resolution discussions that result in a plea
to some of the charges initially sworn in an information.
 -16 -

justice system for those people. As one commentator has stated, "the trend towards a

summary process dependent upon guilty pleas has quietly shifted the entire focus of criminal

procedure from its traditional foundation in the trial process."8 Consequently, it is not

inaccurate to say that if the early stages of the criminal trial process are not functioning

properly, the administration of criminal justice itself is not functioning properly.

The Supreme Court of Canada is but one of many voices which have echoed the

wisdom that prompt resolution of criminal allegations is deeply important to any

community.9 Consequently, it might be said that the significant rate of early guilty pleas

in Ontario is going some distance toward meeting this important need for prompt justice.

Since the accused does have a right to plead guilty to a crime, subject to certain limitations

hereinafter discussed, failing which the Crown is put to the strict proof of the offence, a

large proportion of free and voluntary early guilty pleas may be evidence of a widespread

perception among those most directly affected, that the criminal justice system in its early

stages has operated fairly: that is to say, the police. Crown counsel, and defence counsel

have all discharged their important responsibilities fairly and effectively. The perception

that the trial process by and large unfolds fairly may be further reflected in the fact that only

a tiny fraction of criminal cases handled by the trial courts make their way to an appeal of

any kind, and of those appeals, almost two out of three are dismissed.10

Fitzgerald, supra, at p. 1. See also pp. 213-227 where the author argues, by drawing comparisons to
European criminal procedure, that a strictly adversarial approach to the guilty plea process is unwarranted.

J See for example Askov v. The Queen (1990), 59 C.C.C. (3d) 449 at 474-475 (S.C.C.); R. v. Morin (1992),
71 C.C.C. (3d) 1 (S.C.C.).

1(1 In 1988-89, when the trial courts were disposing of a total of 503,432 charges across Ontario, the
Summary Conviction Appeal Court disposed of 2,640 cases, and the Court of Appeal for Ontario heard and
disposed of 956 cases. In 1989-90, when the trial Courts disposed of 555,289 charges, the Summary Conviction
Appeal Court disposed of 2,534 cases and the Court of Appeal 1,153 cases. In 1990-91, when the trial courts
disposed of 608,702 charges, the Summary Conviction Appeal Court disposed of 2,563 cases and the Court of
Appeal 771. While each case disposed of on appeal may have involved more than one charge, it remains clear
in any event that only a tiny fraction of the outcomes at trial are thought sufficiently erroneous to even warrant
an appeal. Furthermore, between 1987 and 1991 the Court of Appeal has dismissed an average of 61.3 per cent
of those cases that have been appealed. (Source: Ministry of the Attorney General Court Statistics Annual
Report, 1990-1991, and the Court of Appeal for Ontario.)
 -17-

While concerns for efficiency and cost are undoubtedly secondary to concerns about

justice, the rate of guilty pleas in Ontario may also tend to show that the criminal justice

system is, in the main, operating efficiently. This, of course, is important to those who must

administer the criminal justice system, and to all of us who must pay for it. The

administration of criminal justice, which includes providing police services, courthouses and

court staff, judges, prosecutors, and defence lawyers under the Ontario Legal Aid Plan,

costs taxpayers in the province of Ontario in excess of two billion dollars annually.11 We

can only speculate how much greater the cost to the public would be if there were not such

a large scale and prompt resolution of criminal matters through early pleas of guilty.

On the other hand, early guilty pleas do not meet the societal need for prompt justice

simply by being prompt. Yet this is all that the statistics reveal with any certainty about

these pleas. There are, therefore, a number of concerns about the early stages of the

criminal justice process that arise from the prevalence of early guilty pleas, because these

early stages of the process are the only stages most lay participants ever encounter.

First and foremost is the concern that the dispositions meted out early in the criminal

process be fundamentally fair, and represent an acceptable reconciliation of the interests of

the accused and the community. High standards of fairness must be scrupulously preserved

and vigorously perpetuated.

11 This figure is based on information from a number of sources. The Ministry of the Attorney General's
Criminal Law Division and Courts Administration Division provided figures relating to the cost of providing
Provincial Division Judges, court houses, court service personnel, and Crown counsel and their support staff.
The Ministry of the Attorney General's Policy Development Branch provided information pertaining to
expenditures under the Ontario Legal Aid Plan. The Ministry of the Solicitor General's Police Servicing Division
provided figures for expenditure on Municipal Police Services and the Ontario Provincial Police. Information
regarding expenditure for the R.C.M.P. in Ontario was provided by the Canadian Centre for Justice Statistics,
and figures on s. 96 judges came from the Canadian Law List, 1991, and the Judges Act, R.S.C. 1985, c. J-l. The
cost of the administration of criminal justice is only an estimate, as the figures from the foregoing sources by
and large do not differentiate among expenditures for the administration of the criminal, quasi-criminal, and civil
law.
 -18-

Fair dispositions through early pleas will depend to a great extent on responsible

charging decisions, the timing and quality of disclosure, and the diligence and integrity of

both Crown and defence counsel in arriving at early resolution. All of these important steps

are essentially taken by counsel or the police in the exercise of their independent

professional judgment. They are all taken in the context of an adversarial system, where

judicial supervision is necessarily limited, and therefore the decisions of counsel are often

determinative. For example, in R. v. Naraindeen (1990), 80 C.R. (3d) 66 at 74, the Court

of Appeal for Ontario has held that

trial judges in most cases do, and should, give great weight to the decision of
counsel for the prosecution, as a representative of the public interest with
heavy responsibilities, to accept a plea of guilty to an included or lesser
offence.

Therefore, the concern that early pleas be fair and just is in large measure a concern about

the competency and responsibility of counsel engaged in prosecutions for both the Crown

and defence.

A second concern with the early stages of the criminal process substituting for the

entire process arises from the axiom that justice must not only be done, but be seen to be

done. Even if one accepts in its entirety that Crown and defence counsel in resolution

discussions discharge their respective duties with flawless integrity and competence, there

is often very little record in the early stages of the process that this is the case. It is

therefore important that, without hampering the conduct of early resolution decisions, there

be procedures in place to provide assurance that the proposed outcomes jointly put forward

by Crown and defence counsel in brief sentencing hearings are properly responsive to the

events in issue.

A third concern about resolving such a large proportion of the criminal caseload so

early in the process is closely related to the second one. Victims of crime, whose

participation and perspective is crucial to both the proper functioning of the criminal process
 -19-

and its repute in the eyes of the community, have no formal role to play early in the

proceedings. Unlike a trial, where victim participation in the witness box is often essential,

early pleas may be negotiated from start to finish between opposing counsel in the privacy

of one or the other's office, based simply on the paper record of the case. Victims,

therefore, may be excluded entirely from a process that may affect them profoundly.

Accordingly, it is imperative that victims be kept apprised of developments in the case at

its early stages. There has been increasing recognition recently that, generally speaking, the

criminal justice system must address the needs of the victim as effectively as can be done

without undermining the rights of an accused person.12 The need for such concern about

the victim's legitimate interests clearly extends to the early stages of the criminal trial

process.

To summarize, then, the Committee views the focus of its attention, the early stages

of the criminal process, as of superordinate importance for a number of reasons. First,

these stages are an important part of the criminal law, which itself is deeply necessary to an

organized and peaceful society. Second, the criminal law is a social instrument to be used

sparingly because it is costly, blunt, and potentially oppressive. Any concern that a social

process be resorted to sparingly, inevitably focuses concern on the early stages wherein that

process is invoked, and wherein it gathers momentum. Third, the early stages of the

criminal process have perhaps the broadest impact of any stage in that process. And fourth,

the early stages represent the entirety of the criminal process for very many of its lay

participants. This in turn places a premium on the fairness, openness, accountability, and

cost-effectiveness of the system in its early stages.

12 Many jurisdictions have formally recognized or legislated victim's rights. See, for example, An Act
Respecting Services for Victims of Crime, R.S.N. 1990, c. V-5; the Victims of Crime Act, S.P.E.I. 1988, c. 67; the
Victims' Rights and Sendees Act, S.N.S. 1989, c. 14; the Victim's Sendees Act, S.N.B. 1991, c. V-21; An Act
Respecting Assistance for Victims of Crime, S.Q. 1988, c. 20; the Justice for Victims of Crime Act, S.M. 1986-87,
c. 28, Cap. J40,An Act Respecting Victims of Crime, S.S. 1989-90, c. V-6.01; and the Victims' Rights and Sendees
Act, S.B.C. 1988, c. 64. See also the Victim's Charter, published by the Home Office (U.K.), 1990. The Ontario
Legislature's Standing Committee on Government Agencies is currently studying the desirability of similar
proposals in Ontario.
 -20 -

The substance of the Committee's recommendations, and the discussions thereon,

seek to embody all of the foregoing reasons why the early stages of the criminal process are

so important. The Committee has endeavoured, throughout its deliberations, to arrive at

conclusions that respect and respond to these portentous issues and significant interests

which arise whenever a criminal charge is laid.

B. Criminal Procedure and the Early Stages of the Criminal Process

Perhaps surprisingly, the great importance of the early stages of the criminal process has

been matched with only comparatively recent attention to these stages by the courts and

commentators. This is not to say that those making important early decisions in a

prosecution, such as whether to lay a charge, and if so what charge, are unaccountable. The

Attorney General is answerable to the Legislature for the exercise of prosecutorial discretion

by his or her agents. It does appear, however, that this important constitutional power is

exercised infrequently.13 Therefore, one might have expected more long-standing judicial

authority governing the early stages of a prosecution. The case reports have long been filled

with precedent governing the conduct of preliminary inquiries, trials, sentencing proceedings,

and appeals. The scholarly journals have likewise long been filled with academic

commentary covering the same ground. Yet the authoritative writing, be it judicial or

scholarly, has turned its concerted attention relatively infrequently to early matters such as

charge screening, disclosure, and resolution discussions.14

J. Edwards, The Law Officers of the Crown (1984), at p. 231; D.C. Morgan, "Controlling Prosecutorial
Powers - Judicial Review, Abuse of Process and Section 7 of the Charter" (1986-87), 29 Crim. L.Q. 15, at p. 16.

14 See, for example, P. Finkle and D. Cameron, "Equal Protection in Enforcement: Towards More
Structured Discretion" (1989), 12 Dalhousie L.J. 34, wherein the authors argue that the Charter should permit
judicial review of prosecutorial discretion. The authors acknowledge, however, (at p. 58) that "if the law is
treated as a process that necessarily includes the decision on whether or not to enforce, the courts will have
embarked on a new and largely unexplored path."
 -21 -

As late as 1981, for example, the common law seemed to be that pre-trial disclosure

was not a right of the accused, but rather was in the discretion of the Crown.15 A second

example is the common law doctrine of abuse of process, which is perhaps the most ready

avenue of access to a court's review of the initial stages of a criminal proceeding. It is of

relatively fresh vintage, and limited in scope to the "clearest of cases" where there has been

an "affront to fair play and decency": see R. v. Young (1984), 13 C.C.C. (3d) 1 at 31 (Ont.

C.A.); Jewitt v. The Queen, [1985] 2 S.C.R. 128 at 136-137. The union of the common law

abuse of process with section 7 of the Charter is even more recent: see Keyowski v. The

Queen (1988), 40 C.C.C. (3d) 481 at 483-484 (S.C.C.) and R. v. Gostick (1991), 62 C.C.C.

(3d) 276 at 285 (Ont. C.A.). Further, direct review of, or even inquiry into, the exercise of

prosecutorial power by the Legislature, the body to which the Attorney General is

constitutionally accountable, is rare. And, it was only in 1985 that the Court of Appeal for

Ontario recognized that some review of prosecutorial discretion in preferring a direct

indictment may be possible under section 7 of the Charter, see R. v. Arviv (1985), 19 C.C.C.

(3d) 395 at 404.16 To some it may seem surprising that the bulk of the cases handled by

the criminal justice system are resolved without the guidance provided by the bulk of the

long-settled rules of criminal procedure.

No doubt, the relative scarcity and recent vintage of the case law governing the early

stages of the criminal process is at least in part a result of the relative infrequency of

intractable difficulties being brought to the attention of the courts. This in turn is, generally

speaking, most likely attributable to the professionalism and integrity of counsel for the

Crown and defence. It is the Committee's view, supported by the submissions made at the

oral hearings by both Crown and defence counsel from across the province, that at present

most counsel are similarly capable of conducting criminal litigation competently in its early

stages, where judicial supervision is at a minimum. However, the machinery of the

See R. v Lalonde (1971), 5 C.C.C. (2d) 168 at 174; quoted with approval in R. v. Savion and Mizrahi
(1980), 52 C.C.C. (2d) 276 at 283 (Ont. C.A.).

16 Leave to appeal to S.C.C. refused, (1985), 19 C.C.C. (3d) 395n.

 -22 -

administration of justice is at present both vast and complex to administer, and must serve

the needs of a great variety of communities. Therefore, the Committee sees great potential

benefit in a thorough review of the practices and procedures at the front end of the criminal

justice system to address the areas of potential concern outlined above.

The Committee's work has, therefore, been focused by its mandate solely in the

realm of procedure; namely, the earliest procedural issues in the criminal process, charge

screening, disclosure, and the conduct of resolution discussions. At this stage in the

development of our law, the intimate connection between sound procedure and just results

is well settled. It has long been recognized that "the history of liberty has largely been the

history of the observance of procedural safeguards": McNabb et al. v. U.S., 318 U.S. 332

(1942) at 347, per Frankfurter J.

The intimate connection between criminal procedure and criminal justice is not

difficult to appreciate. As stated above, the criminal law is at once deeply necessary to any

organized society, and deeply susceptible to grave misuse. There may be no greater wrong

committed in a society than a criminal wrong. This speaks to the absolute necessity of

preventing such wrongs with the most effective sanctions society is prepared to endorse. On

the other hand, there can be no greater abuse of authority than to wrongfully subject

someone or wrongfully permit someone to be subjected, to a criminal conviction. Simply

put, the criminal law is a powerful instrument, which can be used equally powerfully for

good or ill. It is therefore an important part of the role of criminal procedure to ensure that

the criminal investigative and prosecutorial power necessarily vested in organs of the state

is vibrant and effective, but at the same time carefully controlled, and exercised only

beneficially. No less important is the role of criminal procedure in ensuring that the

adversarial responsibilities of those who undertake to defend accused persons can be and

are discharged effectively.

As stated above, there is a clear need for sound procedures at the early stages of the

criminal process. Furthermore, the existing authorities on these early stages are not
 -23-

comprehensive and are relatively recent. However, it is not the view of the Committee that

these stages of the process should be as fully rule-bound as is the criminal trial. Quite the

contrary. The Committee accepts and, indeed, will in the course of the substance of its

report echo and amplify the wisdom expressed, for example, by the Supreme Court of

Canada in Smythe v. The Queen (1971), 3 C.C.C. (2d) 366 at 370, that "enforcement of the

law and especially the criminal law would be impossible unless someone in authority be

vested with some measure of discretionary power." The Supreme Court of Canada has

recently reaffirmed this proposition by concluding, after a thorough review of the authorities

on point, that, "while not absolute, the principle of prosecutorial discretion is an important

and useful part of our criminal law."17 It is necessary, however, in the Committee's view,

to carefully scrutinize the vitally important early stages of the process, so that the inevitable

discretionary latitude accorded the professional participants is exercised in a sound,

thoughtful, and educated way, with the benefit of experience where necessary, and with the

guidance of some rules where appropriate.

It is the Committee's view that sound procedure in the early stages of the criminal

process cannot be understood simply in terms of fixed rules for proceeding. A

comprehensive set of rules governing this stage of the process would be impossible to write,

and any such attempt would be inevitably unwieldy and counterproductive to administer.

Furthermore, approaching the issue of sound procedure for the early stages of the criminal

process with a rule-oriented perspective overlooks other more sensitive and effective ways

of regulating human behaviour. Often, there is simply no substitute for education,

experience, reason, professionalism, and common sense. There is certainly no substitute

for integrity.

R. v. V.T. (1992), 71 C.C.C. (3d) 32 at 42. In addition to the authorities reviewed by the Supreme Court
in R. v. V.T., see for example Cotroni v. U.S.A., [1989] 1 S.C.R. 1469 at 1497-1498. The high standard to be
proven before a case can be stayed for abuse of process in the early stages, (''the clearest of cases," see Young,
supra) is consistent with a recognition that much of what occurs in the early stages is necessarily discretionary,
and that the exercise of that discretion cannot be unduly fettered by the courts: R. v. V.T., supra, at 42; R. v.
Durette (1992), 9 O.R. (3d) 557 at 569-571 (C.A.).
 -24-

Over-reaching procedural rules, in an area so heavily dependent on the exercise of

sound discretion in good faith, suffer the additional disadvantage of being too inflexible.

Fixed rules may well impede the development of sound practices that respond to changing

conditions. The Committee agrees that in the realm of criminal procedure, and especially

in the early stages of the process,

alternative modes of arriving at truth are not - they must not be - forever
frozen. There is room for growth and vitality, for adaptation to shifting
necessities, for wide differences of reasonable convenience in method.18

Such an admonition is particularly relevant in a province with communities as diverse

as Ontario's, and a criminal justice system as large as Ontario's. For example, in Dancing

With a Ghost,v> Mr. Rupert Ross eloquently illustrates some of the cultural differences

between the native and non-native people of northern Ontario that can markedly affect the

administration of justice:

I suspect that it is commonplace for signals to be misread when Native and

non-Native people meet, commonplace for each of us to hear things which the
other never intended, and to go away with entirely mistaken impressions. We
are not aware that we act within conventional sets of rules ourselves. We
assume instead that the way we behave, express ourselves, and interpret
others is the way all people do it....

This, then, is the nature of the task at hand: learning to go beyond what we
think we see and hear to ask what a person from a different culture and with
a different sense of reality is truly trying to tell us.20

18
A. MacLcish and E.F. Pritchard Jr. (eds.), Law and Politics: The Occasional Papers of Felix Frankfurter
1939, Harcourt Brace Jovanovich Inc., reprinted, Peter Smith, 1971 at pp. 192-193.

1' R. Ross, Dancing With a Ghost: Exploring Indian Reality, Octopus Publishing Group, 1992.

20
Ross, supra, at p. 5.
 -25-

Accordingly, sound procedure in the early stages of the criminal process is, in the

Committee's view, a much broader concept than simply a fixed set of procedural rules. It

encompasses not only rules but also practices, attitudes, ethics, sensitivity, and sound

organization and management.

The Committee, therefore, sees its Report as involving more than simply a summary

of its recommendations, which can be readily stated in capsule form. It has been the

Committee's goal, in the preparation of this Report, to provide more than a few limited

rules which may be of assistance to the conduct of the early stages of the criminal trial

process. While keeping the volume of the Report to a minimum, the Committee has also

endeavoured to provide something of educational value to the general public and to the

professional and lay participants in the criminal process: a springboard to the more

thoughtful, sensitive, responsible, and informed exercise of the discretion that will inevitably

play a major role in the early stages of the criminal process.

C. Principal Aspects of the Committee's Recommendations

i. The Role and Responsibility of Counsel and the Police

In order to command public confidence, the administration of criminal justice must operate

fairly, with integrity, and with such reasonable expedition as is consistent with the other

objectives of the criminal justice system. As one former Crown counsel, also an elected

Bencher, said to the Committee, the object is not to put as many accused as possible in jail

as quickly as possible, but to achieve justice.

An accused is entitled to his or her legal and constitutional protections as a matter

of right. Among the constitutional rights of an accused is the right to be presumed innocent

until proven guilty beyond a reasonable doubt in a fair and public hearing before an

independent and impartial tribunal. These rights may of course be waived, for example, by

a plea of guilty, subject, of course, to the Court's overriding duty to preserve the integrity
 -26 -

of its process. In many cases, it is to the advantage of an accused who is guilty to plead

guilty at the earliest reasonable opportunity.

Fairness requires the Crown prosecutor to disclose to the accused the case he or she

must meet, and to disclose to the accused any evidence in the Crown's possession or under

the Crown's control that is favourable to the accused. The requirement of fairness does not,

however, preclude due regard being paid to matters such as the privacy of innocent people,

or the protection of the safety of witnesses.

The police, Crown counsel, and defence counsel are integral parts of the criminal

justice system, even though they perform different functions. In discharging their respective

functions, it is the duty of each to act responsibly and with integrity. Responsibility and

integrity are fundamental to the discharge of the duties of the police, Crown counsel, and

defence counsel alike, and any failure in this respect undermines public confidence in the

administration of criminal justice.

The need for all participants in the early stages of the criminal justice process to act

with uncompromising integrity cannot be overstated. Integrity on the part of all is a crucial

assumption that underlies virtually all of the Committee's recommendations and discussions.

Integrity is, of course, the highest professional duty of counsel, as an officer of the Court.21

Likewise, it is the essence of a police officer's oath of office.22 As one member of the

Court of Appeal observed to the Committee, without integrity, no system of justice, no

matter how ingeniously designed and lavishly funded, can function. This is particularly true

of the early stages of the criminal justice process.

21
The Law Society of Upper Canada, Rules of Professional Conduct, Rule 1, Integrity.

22 O. Reg 144/91 under s. 45 of the Police Services Act, R.S.O. 1990, c. P.15; Ontario Gazette, Vol. 124-16,
pp. 1467-68, 20 April, 1991.
 -27-

The Supreme Court of Canada, in R. v. Swain (1991), 5 C.R. (4th) 253 at 281, has

recently reaffirmed the long-settled notion that our system of criminal justice is essentially

adversarial. Accordingly, criminal proceedings continue to be in large measure driven by

the actions of counsel on behalf of either the Crown or defence, which contrasts with

inquisitorial systems of justice where the Court may in large measure direct the inquiry into

alleged criminal wrongdoing. The many necessary steps that precede the trial of a criminal

action are in an adversarial context undertaken by counsel, without supervision. It is Crown

counsel, in consultation with the police and victims and, perhaps, defence counsel, who

decide what charges are to be taken to court. It is Crown counsel, again, perhaps, in

consultation with the police, who make initial decisions about disclosure. It is Crown and

defence counsel who decide, subject to rulings on admissibility, what evidence will be

presented for consideration by the Court. And it is Crown and defence counsel, after

consultations or instructions, who conduct in their entirety the resolution discussions that

spell the outcome of such a vast proportion of the charges coming before the courts.

All of these decisions precede a trial in open court, and therefore, for the most part,

precede formal judicial supervision. However, all of these decisions have potential to

gravely affect the liberty and well-being of the accused, and, in some instances, the victim

or other witnesses. Charging decisions determine whether an accused must face the anxiety,

expense, and perhaps embarassment of a criminal trial. When the evidence is strong,

charging decisions may in large measure determine whether there will be a conviction.

Charging decisions may affect an accused's liberty for years, including both pre- and post¬

trial liberty.23 On the other hand, charging decisions that are not appropriately sensitive

to the devastation suffered by the victim may engender considerable trauma and

disillusionment on the part of the victim with the administration of criminal justice, and may

open the justice system to criticism from the public at large. Sexual assault, for example,

has been said to be a much under-reported crime, due in part to a perceived failure by the

23
J. Vorenburg, "Decent Restraint of Prosecutorial Discretion" (1981), 94 Har\\ L. Rev. 1521 at 1525-1526.
 -28 -

justice system to respond to the plight of the victim.24 (The current growth in frequency

of sexual assault prosecutions is, however, evidence that the situation is changing.)

Disclosure decisions, made by the Crown and investigative agencies, are no less important.

We need look no further than the factual findings of the recent Royal Commission on the

Donald Marshall, Jr., Prosecution for telling examples of non-disclosure, both before and

after conviction, that would have meant, in the opinion of the Royal Commissioners, a not

guilty verdict at trial or re-trial,25 instead of years of incarceration for a murder that Mr.

Marshall did not commit. On the other hand, the very lives of confidential informants are

greatly at risk in some undercover investigations if disclosure is not handled with sensitivity

and careful timing. In other words, disclosure decisions can be literally a matter of life or

death for confidential informants. Third, plea resolution decisions obviously have significant

and potentially long-lasting consequences for accused persons, given the difficulty of setting

aside a plea entered into with the advice of counsel,26 and given the law that joint

submissions as to sentence, although not decisive, are entitled to great weight.27

Much has been said and written about the judge as decision maker in the criminal

trial, and the highest standard of integrity expected of him or her in discharging such an

important responsibility. It is easy to see from the foregoing, however, that while the judge

is, of course, the ultimate decision maker in the criminal trial process, the decisions of

counsel are also very likely to affect greatly the liberty of the accused and the well-being of

victims or witnesses. Furthermore, counsel are called upon to make these important

“4 Canada, Report of the Canadian Federal-Provincial Task Force on Justice for Victims of Crime, Minister
of Supply and Services, 1983, at p. 16; P. Marshall, "Sexual Assault, the Charter and Sentencing Reform" (1988),
63 C.R. (3d) 216 at 217.

25
Royal Commission on the Donald Marshall, Jr., Prosecution (the Marshall Commission), Vol. 1, Factual
Findings, pp. 71-72, 79-83.

26 Brosseau v. The Queen, [1969J 3 C.C.C. 129 at 138-139 (S.C.C.); Adgey v. The Queen (1973), 13 C.C.C.
(2d) 177 at 188-189 (S.C.C.); R. v. R.T. (1992), 10 O.R. (3d) 514 (Ont. C.A.).

27 R. v. Rubenstein (1987), 41 C.C.C. (3d) 91 at 94 (Ont. C.A.) .

 -29-

decisions frequently in the course of any one criminal case. And, unlike the trial judge's

decisions, counsel's decisions about charging, disclosure, or resolution of the case are rarely

made in open court with reasons transcribed as part of a public record, and are rarely

subject to direct appellate review. It follows, then, that since the need for integrity flows

from the way in which decisions are made, and from their importance, the standard of

integrity expected of counsel conducting a criminal case is very high indeed, and must

remain so.

Integrity is not the cornerstone of the administration of adversarial justice simply

because of the importance of the decisions to be made by counsel and the Court. Integrity

is likewise fundamentally important because of the complement it fosters, namely, reliability.

No decision taken in the context of an adversarial criminal proceeding is without

consequences for other participants in the process. For example, charging decisions by the

prosecution affect plea positions taken by the accused, disclosure decisions affect the

preparation of the defence, and resolution decisions affect the necessity for attendance at

trial of witnesses and investigating officers. Because parties who stand in adversarial

relationships to each other will be greatly affected by each other's decisions in discharging

their own duties, there is an inherent necessity that those decisions be reliable. Simply put,

if Crown counsel, defence counsel, and police officers cannot rely upon each other with

respect to the information they convey to each other about the case at hand, none of these

three parties can properly do his or her own job, and the administration of justice as we

presently understand it becomes unworkable.

The Committee, therefore, emphasizes at the outset that the principal theme

animating its discussions and recommendations that follow is the requirement of integrity,

which includes reliability, on the part of all professional participants in the administration

of criminal justice.
 -30-

In addition to integrity, the Committee wishes to emphasize the great importance of

responsibility by the police, Crown counsel, and defence counsel in the administration of

criminal justice.

Defence counsel's central professional responsibility is, of course, to his or her client.

The following statement, from the speech of Lord Reid in Rondel v. Worsley, [1969] 1 A.C.

191 at 227-228, perhaps best captures the principle:

Every counsel has a duty to his client fearlessly to raise every issue, advance
every argument and ask every question, however distasteful, which he thinks
will help his client's case.

This statement has been adopted in substance in the commentary to Rule 10 of the Law

Society of Upper Canada's Professional Conduct Handbook.2* The Committee agrees with

this time-tested understanding of defence counsel's primary responsibility, and is of the

opinion that it must remain at the heart of defence counsel's many responsibilities. Further,

it would appear that an accused person is now entitled, under section 7 of the Charter, to

the reasonably effective assistance of counsel: see R. v. Silvini (1992), 9 C.R. (4th) 233 (Ont.

C.A.), where it was held that a lawyer acting for two co-accused, thereby creating a potential

conflict of interest, had fallen below the requisite standard in failing to apply for separate

trials.29 Accordingly, the recommendations that follow are premised on the assumption

that defence counsel will at all times competently and diligently discharge their important

responsibilities. Defence counsel's responsibility to his or her client must, however, also be

exercised in accordance with the ethical standards of the profession. For example, defence

28 . ,
The opening sentence of the second paragraph of the Commentary to Rule 10 of the Law Society's
Professional Conduct Handbook reads as follows:

The lawyer has a duty to the client to raise fearlessly every issue, advance
every argument, and ask every question, however distasteful, which the lawyer
thinks will help the client's case and to endeavour to obtain for the client the
benefit of every remedy and defence authorized by law.

29
See also D. Littlefield, "Silvini: Divided Loyalty" (1992), 9 C.R. (4th) 250.
 -31-

counsel must never knowingly adduce evidence which he or she knows is fabricated; he or

she must not mislead the Court.

Crown counsel's traditional responsibilities, often stated through the years, are two¬

pronged. The Royal Commissioners inquiring into the prosecution of Donald Marshall, Jr.,

stated them in this way:

The Crown prosecutor occupies a dual role, being obligated on the one hand
to prosecute vigorously those accused of crime, and on the other hand to
ensure that the power of the State is used only in pursuit of impartial
• • 30
justice.

The dual nature of Crown counsel's traditional responsibilities has given rise to some

expressions of concern that its two facets are at times inherently contradictory. For

example, one writer has commented that Crown counsel are "in the unenviable position of

serving several masters at the same time."31 This has led some to call for a reconsideration

of the role of Crown counsel.32 The Committee acknowledges these concerns.

Reconciliation by Crown counsel of his or her function as an advocate and an impartial

30 • ....
The Marshall Commission, Vol. 1, at p. 241. The leading statement of this principle is no doubt that of
Rand J. in Boucher v. The Queen (1954), 110 C.C.C. 263 at 270 (S.C.C.). See also R. v. Savion and Mizrahi
(1980), 52 C.C.C. (2d) 276 at 289 (Ont. C.A.) per Zuber J.A. for the Court:

By reason of the nature of our adversary system of trial, a Crown prosecutor is an

advocate; he is entitled to discharge his duties with industry, skill and vigour. Indeed
the public is entitled to expect excellence in a Crown prosecutor just as an accused
person expects excellence in his counsel. But a Crown prosecutor is more than an
advocate, he is a public officer engaged in the administration of justice ....

31
A.W. MacKay, 'The Influence of the Prosecutor: Plea Bargaining, Stays of Proceedings, Controlling the
Process" in S. Oxner (ed.), Criminal Justice (1982), p. 69 at 76. See also A. Maloney, Q.C., 'The Supreme Court
and the Role of Crown Counsel" (1980), 1 Sup. Ct. L.R. 472; W.C. Gourlie, The Role of the Prosecutor: Fair
Minister of Justice with Firm Convictions" (1982-83), 12 Man. LJ. 31; and J.A. Sutherland, The Role of Crown
Counsel: Advocate or Minister of Justice?" (1990), unpublished LL.M. Thesis, University of Toronto.

32
Sutherland, supra, at pp. 247-248; S.Z. Fisher, "In Search of the Virtuous Prosecutor: A Conceptual
Framework" (1988), 15 Am. J. Crim. Law 197; B.L. Gershman, "Why Prosecutors Misbehave" (1986), 22 Crim.
L. Bull. 131; R.N. Jonakait, The Ethical Prosecutor's Misconduct" (1987), 23 Crim. L. Bull. 550.
 -32-

minister of justice may frequently be difficult. But this has not led the Committee to

conclude that it is necessary to rethink the dual nature of the role of Crown counsel.

It cannot be forgotten that Crown counsel is only one of the participants in an

adversarial system of justice. Crown counsel performs his or her duties in the context of a

system that ascribes fundamentally important, and counterbalancing, responsibilities to

defence counsel, and to the judge. It is the interaction of these three parties in the criminal

process, and not the action of Crown counsel alone, that ensures just outcomes to criminal

proceedings.33 Further, the dual role of Crown counsel as advocate and minister of justice

is too important to the administration of justice in an adversarial system, and too deeply

embedded in our legal traditions, to be lightly cast aside. As stated above, little is more

important to the preservation of organized society than the active denunciation of criminal

wrongdoing. In an adversarial context, this important objective must be achieved in large

part by an effective advocate for the prosecution. On the other hand, prosecutors acting on

behalf of the state in an adversarial criminal proceeding wield such significant power, much

of it not subject to judicial control in advance, that the importance of prosecutors acting as

"ministers of justice" cannot be overstated.

It is commonplace that those charged with decision-making in the conduct of human

affairs will be faced with difficult choices. Given the importance of the decision-making role

they occupy, Crown counsel cannot expect that their duties would be any different in this

respect. Accordingly, the difficult decisions that Crown counsel's dual role as both advocate

and minister of justice casts upon them are not going to be eradicated by reformulating the

role; it is expecting too much of the mere statement of one's duties that such a statement

should be capable of answering every conceivable problem that could arise. Difficult and

close decisions will continue to present themselves on any view of Crown counsel's proper

role, which, of course, only serves to highlight the great need for Crown counsel to possess

in abundance the irreducible virtue of sound judgment. In this regard, it is the Committee's

33
B.A. Green, 'The Ethical Prosecutor and the Adversary System" (1988), 24 Crini. L. Bull. 126.
 -33-

opinion that Crown counsel faced with difficult decisions should not hesitate to consult with

more senior Crown counsel.

It is, therefore, the Committee's view that Crown counsel's dual role as both

advocate and minister of justice, fulfilled with the utmost integrity and sound judgment, is,

like the complementary roles of defence counsel and the judge, essential to the

administration of justice in Ontario. In keeping with such a view, it cannot be

overemphasized that the effectiveness and worth of the Committee's recommendations

depend greatly on the assumption that, like defence counsel, Crown counsel will adhere

diligently to this conception of their responsibilities.

Crown and defence counsel, of course, owe unquestionable allegiances to the

community (as both advocate and minister of justice), and the client, respectively. However,

it cannot be forgotten that both Crown and defence counsel are also officers of the Court.

Lord Reid captured this aspect of counsel's responsibility in the same breath that he stated

counsel's primary duty to the client, as quoted above. After making the point that counsel

must fearlessly pursue every issue that will help the case, His Lordship continued:

But, as an officer of the court concerned with the administration of justice, he

has an overriding duty to the court, to the standards of his profession, and to
the public, which may and often does lead to a conflict with his client's wishes
or with what the client thinks are his personal interests.34

Counsel's responsibility as officers of the Court makes them more than simply

representatives of a particular interest or set of interests. They are not merely agents. They

are independent professionals, and key participants in a system of administering justice.

Consequently, counsel's efforts as advocates are necessarily constrained by the system within

which they function, and to which they owe allegiance. They must advocate on behalf of the

34
Rondel v. Worsley, supra, at 227-228. See also G.A. Martin, 'The Role and Responsibility of the Defence
Advocate" (1969-70), 12 Crim. L.Q. 376.
 -34 -

interests they represent, be they those of an accused person, or the community at large, in

a manner that invites and enhances public respect for the justice system.35

The responsibility of counsel to act in a manner consistent with the due

administration of justice takes on particular importance as the criminal justice system

becomes increasingly vast, complex, and potentially unwieldy. As the criminal justice

system's prevailing "modes of arriving at truth" adapt to "shifting necessities,"36 responsible

counsel will likewise adapt, diligently and effectively furthering the interests they represent

in the context of the newly evolved practices or procedures. In short, when the practice of

criminal law changes for the better, so must its practitioners.

The Bar is, and in the Committee's view, of course, must remain, resolutely

independent. However, it cannot be forgotten that an independent Bar is nothing more

(and nothing less) than one important aspect of our system of administering justice, and that

system belongs to, and is for the benefit of, the community. Therefore, given the

independence of the Bar, it is solely a matter of professional responsibility that the Bar, as

servants of the administration of justice and, ultimately, the community, adapt to the needs

of the community as necessary.37 The Committee assumes, and indeed calls upon, that

sense of responsibility in many of its recommendations.

35
See generally, "Problems in Ethics and Advocacy," Law Society of Upper Canada Special Lecture Series
(1969), at p. 279.

36
See Frankfurter, supra, note 21.

37 ... .
Other jurisdictions have relied less on the Bar's sense of professional responsibility to ensure that the
system's needs are met, and have implemented statutory regimes regulating the conduct of a case by counsel.
For example in the United States, the federal Speedy Trial Act of 1974, 18 U.S.C. chapter 208, provides, at s.
3162(b), entitled "Sanctions" that the wilful failure of counsel for either the prosecution or the defence to proceed
to trial "without justification as consistent with section 3161 of this chapter" may result in a reduction of defence
counsel's fee by up to 25 per cent, a fine of up to 25 per cent of the fee which defence counsel would be entitled
to charge on a private retainer, for a prosecutor a fine of up to $250.00, and for either prosecution or defence
counsel, denial of the right to practice before the court in question for up to 90 days, or the filing of a report
with the appropriate disciplinary committee.
 -35 -

Like counsel, the police are also under the highest of duties to discharge their

function in the criminal justice system responsibly.38 Again, like counsel, this sense of

responsibility is well developed, and readily understood. The need for the criminal

investigators to act responsibly flows from three basic facts. The first basic fact, already

stated above, is that there is a tremendously important societal need to apprehend and

convict perpetrators of criminal acts, that is, the actual perpetrators of criminal acts. Thus,

the first responsibility of the criminal investigator is to pursue his or her investigative duties

skilfully and diligently, yet with the scrupulous dispassion that permits the evidence to tell

its own story. The codes of conduct39 to which the police are subject speak directly to this

need to be diligent, impartial, honourable, and incorruptible.

The second and third basic facts that, in the Committee's view, most directly inform

an understanding of the criminal investigator's responsibility, are that the investigator may

exercise many broad powers, and that in many circumstances the investigator may exercise

these powers at his or her discretion. The Committee sees it as self-evident that anyone

who may, in certain circumstances (e.g. where obtaining a warrant is not feasible), decide,

without prior authorization, to enter a private dwelling house, to arrest, charge, or

incarcerate, must exercise those powers with the utmost responsibility.

The police, as public officials performing a variety of important tasks in the

community, have a great many responsibilities placed upon them by a variety of rules,

regulations, statutes, and, indeed, by public expectations. For example, when investigating

38
Many very important police functions have little to do with the administration of criminal justice. Among
these functions are crime prevention, traffic control, assisting those in need, and public education. Therefore,
the notion of professional responsibility developed in this discussion relates primarily to the criminal investigator.

39
See, for example, the Police Sendees Act, R.S.O. 1990, c. P.15, ss. 56, 135(1) and the Schedule to O. Reg.
791, "Code of Offences" under the Police Services Act, R.R.O. 1980; the Royal Canadian Mounted Police Act,
R.S.C. 1985, c. R-10, ss. 37, 38 and Royal Canadian Mounted Police Regulations, 1988, Part II, "Discipline", Can.
Gazette, Part II, Vol. 122, No. 15, p. 3181 at 3191.
 -36-

a crime, the police are usually the first persons to have contact with the members of the

public affected. It is, therefore, of the utmost importance that they conduct their

investigations accurately, and with sensitivity. The police are also accountable to the public

in many ways that are beyond the Committee's mandate, for example, through the Police

Complaints Commission, and police services boards. However, two important sources of the

general duty upon the police to discharge their functions responsibly are statutory codes of

conduct, and the decisions of the courts. Codes of conduct are applied through disciplinary

proceedings internal to the police community, while the decisions of the courts, often in the

context of sections 7 to 10 of the Charter, are an external source of guidance, indirectly

constraining particular exercises of power when the consequences are inconsistent with

someone's legal rights. Case law that prescribes the realm of responsible conduct on the

part of the police is legion. It is essentially the jurisprudence of sections 7 through 10 of the

Charter. The extent of the case law on this aspect of police responsibility bespeaks, in the

Committee's view, the great importance of an unfailing respect by the police for the legal

rights of all persons, as those rights are contained in the Charter. This respect for legal

rights, then, along with scrupulous and scrupulously impartial investigation of crimes, are the

two pillars of a criminal investigator's responsibilities.

The Committee recognizes that the two pillars of a criminal investigator's

responsibilities will inevitably force upon the investigator some difficult decisions. In many

circumstances, it will be difficult to reconcile the responsibility to respect the legal rights of

individuals with the effective detection of crime. The Committee, therefore, thinks it

essential that, like Crown counsel, criminal investigators possess sound judgment in

abundance. The Committee likewise thinks it important that, whenever difficult decisions

arise, investigators seek the advice of more senior and experienced officers, or Crown

counsel, where practical.

 -37-

At the early stages of the criminal trial process, after a charge has been laid, the

police officer involved in the prosecution will, typically, have already fulfilled most of his or

her responsibilities as an investigator. The crime will have been carefully and impartially

investigated, employing only those techniques that respect the legal rights of persons

encountered in the course of the investigation. However, the responsibility to respect an

accused person's legal rights does not end when the Crown assumes carriage of the

prosecution. At least since the Supreme Court of Canada's decision in the Stinchcombe

case, the police officer's responsibility to respect the constitutional rights of the accused

person has encompassed the duty to provide the Crown with the information necessary for

the Crown to make full disclosure.

As a matter of law, police officers exercise their discretion in conducting

investigations and laying charges entirely independently of Crown counsel.40 The police

seek the advice of the Crown only where they think it appropriate. And while it is no doubt

prudent to do so in many cases, the police are not bound to follow the advice of Crown

counsel, as that advice relates to the conduct of the investigation and the laying of charges.

The Crown likewise exercises independent discretion in the conduct of the prosecution

before the courts, having no obligation to prosecute simply because a charge is laid by the

40 Police officers in Ontario maintain the status of a constable at common law, from which their
independence derives. This independence is not simply independence from Crown counsel, but is plenary, in
that police officers are to make investigative and charging decisions based solely on the circumstances of the case,
without regard to any extraneous influences. See the Police Sendees Act, R.S.O. 1990, c. P-15, s. 42(3); Attorney
General for New South Wales v. Perpetual Trustee Co. (Ltd.), [1955] A.C. 457 at 489-490 (P.C.); Re a Reference
under the Constitutional Questions Act, [1957] O.R. 28 (C.A.); R. v. Commissioner of Police ex parte Blackburn,
[1968] 2 Q.B. 119 (CA..); Re Metropolitan Toronto Board of Commissioners of Police and Metropolitan Toronto
Police Association (1975), 8 O.R. (2d) 65 (C.A.); Nicholson v. Haldimand Norfolk Regional Board of
Commissioners of Police, [1979] 1 S.C.R. 311 at 321, per Laskin C.J.C.; T.M. Brucker, "Disclosure and the Role
of the Police in the Criminal Justice System" (1992), 35 Crim. L.Q. 57; Prof. J.L1.J. Edwards, The Attorney
General, Politics and the Public Interest (1984), at pp. 37-39, 405. See also p. 80 where Professor Edwards notes
that "objection to the integration of both investigating and prosecution roles in the same body of officials has
been voiced over a long period of our political history."
 -38 -

police.41 The mutual independence of the Crown and the police is recognized, for

example, in the fact that different ministers of the Crown are responsible for each: the

Attorney General, as the chief law officer of the Crown, and the Solicitor General, as the

Minister responsible for providing police services.42 As stated in the House of Commons

by the first Solicitor General of Canada:

It seems to me that to vest the authority for the investigative functions of the
government in the same person who is going to conduct the criminal process
is foreign to the spirit of justice.43

This relationship of independence between Crown counsel and the police appears to

differ from the relationship between investigators in the United States, and a District or U.S.

Attorney. While the practice varies among the various states and the federal government,

it appears that American prosecutors may be, generally speaking, actively involved in

charging decisions,44 and in the conduct of the investigation.45

Campbell v. Attorney General of Ontario (1987), 31 C.C.C. (3d) 289 (Ont. H.C.); aff'd 35 C.C.C. (3d) 480
(Ont. CA.); leave to appeal to S.C.C. refused, 35 C.C.C. (3d) 480n; J.L1.J. Edwards, The Law Officers of the
Crown (1964), at pp. 199-225; P.C. Stenning, Appearing for the Crown (1986), at p. 294. Crown counsel's
important status, as an officer of the court and an impartial minister of justice, necessitates Crown counsel's
independence from the police to preserve the independence of the court itself. Like that of the police, Crown
counsel's independence is plenary, in that prosecutorial decisions are made solely in the public interest on the
circumstances of the case, and without regard to inappropriate influence from any quarter.

4“ In England, the police are under the auspices of the Home Secretary, whereas prosecutions are under
the auspices of the Attorney General. Canada created a separate Solicitor General and Attorney General in
1966. Ontario was the first province in Canada to follow the lead of the Federal Government with the
Government Reorganization Act, S.O. 1972, c. 1, s. 97. See, generally, the Marshall Commission, Vol. V, at pp.
1-27.

H.C. Debates, Vol V., at p. 5524, May 25, 1966.

44 McDonald v. Goldstein, 83 N.Y.S. 2d 620, 622 (1948); aff'd 79 N.Y.S. 2d 690; Pugach v. Klein, 193 F.
Supp. 630, 634-635 (1961); People ex rel. Daley v. Moran, 445 N.E. 2d 270, 272 (Ill. S. Ct. 1983); Manning v.
Municipal Court of Roxbury Dist., 361 N.E. 2d 1274, 1276-77 (Mass. Sup. Jdcl. Ct. 1977); The American Bar
Association Standards for Criminal Justice (3rd ed. 1992) Standard 3-3.4, "Decision to Charge," part (a) states that
"the decision to institute criminal proceedings should be initially and primarily the responsibility of the
prosecutor."
 -39-

The mutual independence of Crown counsel and the police has many advantages.

As will be discussed in greater detail below, separating the investigative and prosecutorial

powers of the state is an important safeguard against the misuse of both. Such separation

of power, by inserting a level of independent review between the investigation and any

prosecution that may ensue, also helps to ensure that both investigations and prosecutions

are conducted more thoroughly, and thus more fairly.46 The police and Crown counsel can

focus on their particular areas of expertise. As stated by the English Royal Commission on

Criminal Procedure (1981) at pp. 146-149:

The police will retain unimpaired their law enforcement role and the primary
responsibility for bringing detected offenders before the courts.... Thus the
police will be required to sustain their standards of training and performance
in all aspects of their investigative work, including case preparation. The
prosecutor will have an independent role in the later stages of the process and
an enhanced role because of that. His experience of the courts' view of cases
... and his role and status in the system will add weight to his advice to the
police ....

However, the independence of Crown counsel and the police also places upon the

police some important responsibilities. Most importantly, the Crown is entitled to rely on

the police, as the investigative source of most of the information relevant to the guilt or

innocence of an accused person, to bring forward accurately and completely whatever has

a bearing on the case.

45 For example, in the United States the grand jury is a powerful investigative tool employed by both United
States Attorneys, and state District Attorneys. See LaFave and Israel, Criminal Procedure (1984, as updated),
Chapter 8, ss. 8.1, 8.3; The National District Attorney's Association, National Prosecution Standards, 2nd ed.,
1991, states that prosecutors have an "affirmative duty" to investigate crimes: s. 39, "Investigations," s. 41
"Subpoena Power and Grants of Immunity" and commentaries thereon. Therefore, United States Attorneys or
District Attorneys will typically have their own investigative staff, answerable directly to them: National
Prosecution Standards, supra, s. 8.3, "Investigators," and commentary thereon. The American Bar Association
Standards for Criminal Justice (3rd ed. 1992), Ch. 3, The Prosecution Function," Standard 3-3.1, Investigative
Function of Prosecutor" states in part (a) that, "a prosecutor has an affirmative responsibility to investigate
suspected illegal activity when it is not adequately dealt with by other agencies."

46 See generally, the Marshall Commission, Vol. I, at pp. 223-235.

 -40-

There is one further reason why, in the Committee's view, integrity and responsibility

on the part of the police, the Crown, and defence counsel are absolutely essential to the

administration of justice in Ontario, and to the successful implementation of the

Committee's recommendations. During the course of the Committee's oral hearings, the

point was repeatedly made that Crown counsel need to be accorded generous latitude by

the Attorney General to exercise their discretion in the circumstances of each individual

case. The submissions to the Committee, from Crown and defence counsel alike, were

virtually unanimous that Crown counsel conducting any given case ought not to be

constrained by binding directives applicable across the province.

As will become apparent in its recommendation, the Committee accepts the

submission that directives binding the discretion of Crown counsel in the conduct of a case

should be few and far between. In the Committee's view, it is important to preserve a

prosecutor's independent discretion for two reasons. First, in the Committee's view,

comprehensive prosecutorial discretion is necessary to appropriately respond to the infinite

variety of circumstances that may lead to an allegation of criminal wrongdoing. For

example, in any class of cases in which a charge of break and enter is laid, the needs of the

community, the victim, the witnesses, and the accused may vary so greatly that the charge

laid is the only feature common to those cases. Only a broad discretion as to how those

cases are to be prosecuted or resolved will adequately address such important and extensive

differences. Second, comprehensive prosecutorial discretion is, in the Committee's view,

necessary to preserve and perpetuate sensitivity in the administration of criminal justice to

unique local conditions, local practices, and local needs. The administration of justice by

Crown Attorneys is now, and has been since the earliest days of this province,47

decentralized to the county or district level, consciously structured to accord due

47 The Upper Canada County Crown Attorneys' Act, 1857, 20 Vic., c. 59; P. C. Stenning, Appearing for the
Crown (1986), at pp. 114-121; Crown Attorney's Act, R.S.O. 1990, c. C.49, ss. 1-3; K. Chasse, F. Armstrong, 'The
Attorney General and the Traditional Crown Prosecutor - An Alternative View of Prosecutorial Powers" (1984),
2 Crown's Newsletter 1.
 -41-

consideration to the particular needs of localities large and small. The Committee is of the

view that this tradition is sound, has served the various localities throughout the province

well, and should be preserved.

While the Committee is of the view that Crown Attorneys, acting locally, ought not

to have their discretion unduly fettered by binding directives applicable across the province,

such a recommendation is made only on the assumption that Crown counsel, the police, and

defence counsel will at all times conduct themselves responsibly and with integrity in the

relative autonomy of local conditions. The grant of any discretionary power always gives

rise to the possibility that it may be misused. And the greater the discretionary power, the

more serious are the consequences of its misuse. Accordingly, the Committee wishes to

emphasize that the discretionary latitude it is recommending at the local level places a heavy

premium on responsibility and integrity.

2. The Need for Sound Organization and Management

Apart from the vitally important roles and responsibilities of the professional

participants in the early stages of the criminal process, the second principal theme animating

the Committee's recommendations throughout is the need for sound organization and

management of the criminal litigation process. The Committee has been informed by the

General Division judges during the course of its consultations that, save for exceptional

cases, General Division trials can be held in Toronto within three months of committal, and

outside Toronto within six months of committal. The judges of the Provincial Division

informed the Committee that in downtown Toronto trials can, generally speaking, be held

within one to four months, and outside Toronto trials can be held within six to eight months.

It appears, therefore, that, for the most part, all courts across the province are operating

within the administrative guidelines discussed by the Supreme Court of Canada in R. v.

Morin, [1992] 1 S.C.R. 771. However, this is no reason for complacency. Delay in the

courts must be kept to a reasonable minimum, and thus the justice system must at all times

be well organized and well managed.

 -42-

To say that the administration of criminal justice, in its early stages, must be sound

in organization and management, is merely to state the obvious. It is well documented,48

and readily apparent to even the most casual observer, that the criminal justice system in

Ontario is vast and complex, and, therefore, potentially unwieldy. It is, however, important,

in the Committee's view, to identify certain general features of the justice system that

account for its potential unwieldiness, in order to discover the principles that should govern

our efforts to ensure that the system is both fair, and efficiently run.

Managing any organization is, perhaps, easiest if all personnel involved in the

organization are engaged in co-operative or complementary tasks, and are accountable to

one overseer with unconstrained managerial authority and a clear vision of what the

organization is to accomplish. By comparison with such a best-case scenario, the criminal

justice system poses significant management challenges. First, the major participants in the

criminal justice system, namely, the police, the Crown, the defence Bar, the judiciary, and

the government that funds the system, are all independent of each other. No one of these

groups can tell the others how to perform their jobs. Quite the opposite. This sort of

resolute independence is a cornerstone of fairness, the first principle in any justice system.

However, from a management perspective, a vast and complex system is being run with no

one overseer at the helm.

Second, all of the major participants in the administration of justice are not only

independent, but have significant abilities, indeed, responsibilities, to draw on the resources

allocated by the government to the administration of justice in the execution of their duties.

The police must exercise their discretion to investigate and lay charges with respect to

allegations of criminal wrongdoing having regard to the public interest. Crown counsel

makes decisions as to the conduct of trials in which the public interest in achieving justice

is the dominant factor. Defence counsel, acting responsibly as an officer of the Court,

48
The Zuber Report, supra, at p. 4; the Joint Committee on Court Reform Report on Ontario Court
Administration (1992).
 -43-

conducts the defence as he or she sees fit, as a matter of the constitutional right of the

accused being represented. And, of course, a trial judge runs his or her court room in a

manner that is, first and foremost, fair. All of the decisions involved may have significant

consequences for the overall cost of administering the criminal justice system. Thus, the

administration of criminal justice is one of those rare situations where those who actually

make the decisions that result in expenditures, are officially unaccountable to government,

who must pay the bill.

Third, our system of criminal justice is essentially adversarial. This means that the

major participants in the system are often not working co-operatively, in a managerial sense,

but, rather, are working at cross-purposes to each other. During a criminal trial, Crown

counsel requires the resources necessary to keep a courtroom in operation while he or she

meticulously builds a case against an accused. However, at the same time, in cross-

examination, and thereafter during the defence case in-chief, defence counsel requires

similar resources to, perhaps, just as meticulously destroy the case the Crown has built.

Obviously, then, adversarialism has a significant impact on t le cost of administering justice.

Few would doubt its important contribution to fair outcomes, and thus the adversarial

system remains a cornerstone of our justice system. But it does not remain so without cost.

Fourth, the administration of criminal justice is not characterized by the pursuit of

a single goal that can be stated in concrete terms. By way of contrast, a private corporation

may exist for the maximization of profit. A non-profit, charitable organization may exist to

assist children in need in a particular community. Objectives such as these are easily stated,

and it is relatively apparent when they have or have not been obtained. In contrast, the

aims of the justice system are not so easily stated, nor so easily recognized when they are

obtained. Naturally, the justice system seeks to administer justice, but this is not a single

idea, like maximizing profit, or helping hungry children. Rather, obtaining justice is a

question of reaching a satisfactory result in the unique circumstances of each individual case.

Yet cases vary infinitely, one from another. What is just in one case may be manifestly

unjust in the next case. Therefore, in contrast to private business organizations, or local
 -44-

charities, it is inappropriate to think of managing the justice system through the use of

quotas, or targets, or through applying fixed formulas to the daily tasks at hand.

In sum, the Committee sees the principal challenges to the efficient yet fail

management of the criminal trial process as arising from the combination of the

independence of the major participants, their ability to draw on the system's resources

without direct accountability, the inherently adversarial nature of the process, and the fact-

specific nature of just outcomes. It must be emphasized that, in the Committee's view, all

of the foregoing features of the criminal justice system are deeply necessary. Yet it is

equally true that all of these features are, both individually and collectively, impediments

to the efficient management of the criminal trial process. Therefore, in the Committee's

view, the management challenge for the criminal trial process is to discern how to achieve

efficiency without sacrificing the basic principles of the justice system.

How, then, is this challenge to be met? How can the criminal trial process be both

fair, and effectively and efficiently managed? Obviously, the Committee's recommendations

have been formulated with both justice and, to a lesser extent, efficiency in mind. However,

in addition, there are, in the Committee's view, five general principles that can best guide

the search to accommodate efficiency and the competing values discussed above when

implementing the Committee's recommendations. It is hoped that the discussion of these

five general principles that follows will assist the various jurisdictions across the province in

achieving the objectives contemplated by the Committee's recommendations, while

remaining duly sensitive to prevailing local conditions and sound local practices.

The first and, in the Committee's view, most important principle is that of full co¬

operation and involvement among all of the parties involved in the administration of justice

in the search for fair yet efficient procedures. Since the police, the Crown, the defence Bar,

and the judiciary are all independent of each other, the full participation of any of these

parties in attempts to devise procedures to make the criminal justice system more workable,

yet still fair, is strictly a matter of co-operation. New procedures cannot be imposed on any
 -45-

one of these groups, but must be designed and implemented in a fully consultative way. Full

co-operation from all of these parties also remains essential when any new methods of

proceeding are up and running. There are co-operative dependencies among the police,

Crown counsel, defence counsel, and the judiciary in virtually every aspect of the criminal

justice system's practical day-to-day functioning. In effect, each of these parties

independently possesses the power to nullify the system's continued viability. Therefore, the

continued commitment and active co-operation of each of these groups, none of whom can

be controlled by any of the others, is essential. Such co-operation and commitment must

be maintained through clear and on-going communication and consultation among the

police, bar and bench wherever necessary. As stated recently by Barbara Mills, Q.C., the

Director of Public Prosecutions in England,

Each part of the system must retain its own identity and independence, but
must recognise that the parts are also interdependent. Isolation of any one
part will risk damage to the smooth operation of the whole of the system.49

The second general principle that, in the Committee's view, must be present, if the

competing demands of justice and efficiency are to be satisfactorily reconciled, is willingness

on the part of all of the co-operative participants to change, to some extent, the ways in

which they have traditionally carried out their respective functions. The Committee's

recommendations have, as will be seen, implications for the way in which all participants in

the criminal trial process discharge their responsibilities. The police and Crown counsel will

have to adapt to early and full disclosure, and will be obliged to spend more time preparing

for, and engaging in, early resolution, rather than merely preparing for trial. Likewise,

defence counsel will have to adjust to spending much more time with a client's file in the

early stages. The judiciary can aid the processes of early resolution greatly through the

mechanism of the pre-hearing conference. There is also a need for communication between

the Provincial and General Divisions in any given jurisdiction, so that counsel can meet their

49
Crown Prosecution Service Annual Report 1991-92, at p. 8.
 -46-

obligations in both courts with a minimum of conflict in scheduling. Finally, if full

disclosure and early resolution is conscientiously pursued, the judiciary will see early pleas

and joint submissions becoming increasingly common.

The participants in the criminal justice system must, however, be willing to change

more than simply the concrete way in which they conduct their roles as police officers,

Crown counsel, defence counsel, or judges. The participants must also be willing to

approach the administration of justice from a unique perspective that preserves the

fundamental need for fairness, while at the same time meeting the great need for efficiency.

Simply put, they must be willing to take initiatives to properly and fairly resolve cases early.

In doing so, the participants must place less emphasis on adversarialism and more emphasis

on co-operative case management.

Police forces, for example, must be prepared to spend greater time and resources

overseeing cases after the initial investigation is complete: anticipating and avoiding

investigative problems that might hamper the prosecution before they arise, rather than

waiting for the Crown counsel's direction, and doing only what the Crown insists is

necessary, often when a particular problem is already well out of hand.

Likewise, Crown counsel must take early initiatives in managing their cases. For

example, Crown counsel must discuss anticipated problems in a prosecution and proposed

solutions with the police where necessary. Crown counsel must devote time to ensuring that

the defence has full disclosure as early as possible, so that meaningful resolution discussions

can likewise occur early. Crown counsel must familiarize himself or herself with the

prosecutions at hand early on, and take a realistic view of both the strengths and weaknesses

of a case. He or she must not hide behind an adversarial posture, but rather must

participate co-operatively in meaningful resolution discussions. Further, Crown counsel must

take reasonable positions on issues to be resolved, according the accused as much benefit

for early resolution as the law and the circumstances of the case will permit.
 -47-

Defence counsel must also devote time and effort to an accused's case very early in

the process: diligently acquiring disclosure, and carefully reviewing it right away. Like

Crown counsel, defence counsel must realistically assess the case against the accused,

looking closely for gaps in the evidence or possible defences, while acknowledging the actual

strengths of the Crown's case, and, where appropriate, engaging in reasonable resolution

discussions. Conducting a case in this way does not mean sacrificing the interests of the

accused. Quite the contrary. It means being vigilant at the early stages of a case to ensure

that, if the accused's best interests lie in an early resolution, those interests are fully served.

The judiciary, too, may take initiatives early in the trial process, for example, assisting

in appropriate ways to encourage early disclosure and resolution discussions between

counsel. A judge may participate, within the limits of appropriate judicial conduct, in

resolution discussions to assist in narrowing issues. He or she may also facilitate the early

final disposition of cases by being available to preside over pre-hearing conferences and take

pleas, and by giving joint submissions sufficient weight so as to ensure, without sacrificing

the interests of justice in any particular case, that early co-operative resolutions are

encouraged.

The fourth general principle that is, in the Committee's view, necessary to achieve

efficiency without sacrificing fairness, is comprehensiveness. Charge screening, disclosure,

and resolution discussions are, in the Committee's view, all closely interrelated. In the

Committee's view, it is essential that any reform of pre-trial out-of-court practices recognize

this fact.

For example, effective charge screening facilitates resolution by weeding out

unnecessary charges. It also streamlines disclosure. Full and early disclosure in turn

permits more wide-ranging and informed resolution discussions. Early and regular

resolution discussions also assist in streamlining ongoing disclosure requirements. On the

other hand, without charge screening, any disclosure system would necessarily have to cope

with greater volume. Without charge screening, there would likewise need to be a greater
 -48-

number of resolution discussions, which would also tend to be lengthier. And, full disclosure

without any subsequent commitment by Crown and defence counsel to review the material

early, and meet early to narrow issues, would do little to improve the efficiency and fairness

of the criminal justice system. Therefore, the three activities of screening, disclosure, and

resolution discussions must be seen by all participants as component parts of a necessarily

integrated method of managing cases prior to trial.

The fifth and final key to successful case management in the criminal trial process

must be, in the Committee's view, a willingness to commit resources to it at the outset. The

Committee's recommendations with respect to charge screening, disclosure, and resolution

discussions will inevitably require an increase in resources by the police and the Crown. In

a slightly different way, defence counsel will likewise be required by the Committee's

recommendations to apply their own resources up front. File review and preparation, which

hitherto may have been done only on the eve of a trial date, set, perhaps, some months

before, will have to be done much earlier, to permit meaningful early resolution discussions.

On the occasions where early resolution discussions are not fruitful, this may mean

additional work on the part of both Crown and defence counsel in preparation for trial.

The initial increase in resources and effort required by the Committee's

recommendations will be somewhat speculative, because the recommended procedures must

be put in place before any benefits will accrue. But without an initial commitment of

resources, the considerable benefits to the efficient administration of justice, which the

Committee is optimistic its recommendations entail, will not be realized.

Maintaining the co-operation necessary to the successful operation of

recommendations such as the Committee has put forward requires open and ongoing

communication among the police, the Crown, the defence Bar, and the judiciary.50 But,

50 The Committee observes that in England a formal body, the Criminal Justice Consultative Council, has
been established recently to facilitate such communiciation. See the Crown Prosecution Service Annual Report
1991-92, at p. 8.
 -49-

no less important to maintaining that co-operation are the benefits that the

recommendations can afford to each of the participant groups: benefits which, from

everyone's perspective, more than offset the costs. First and foremost is the goal of

resolving cases in a fundamentally just manner. But, in addition to being fair, the

Committee is hopeful that its recommendations will contribute to making the criminal trial

process more efficient. The increase in early resolution of cases contemplated by the

Committee's recommendations means that the police can save considerable amounts in

police witness costs, thereby putting more officers back into the community. It is hoped that

early resolution will free Crown counsel to perform other duties. And, of course, it is

expected that the accused will benefit from early and just resolution. It is these potentially

significant benefits that can, in the Committee's view, more than offset the costs and

inconvenience that may be entailed in putting the recommendations which follow into

practice.

Finally, it is, in the Committee's view, important to reiterate that the five principles

guiding the management of the criminal trial process out’ined above should be put into

effect at a local level.

 CHAPTER II: CHARGE SCREENING

A. The Threshold Test for Commencing or Continuing a Prosecution

It is a fundamental principle of the administration of justice in this country that not only

must there be sufficient evidence of the commission of a criminal offence by a person for

a criminal prosecution to be initiated or continued, but the prosecution must also be in the

public interest.

The question of what standard to apply when determining the sufficiency of evidence

and the public interest in prosecuting is an extremely important one. In the Committee's

view, the proper standard, or proper threshold test, must be one that does not unduly

restrict Crown counsel's prosecutorial discretion, but at the same time prevents the process

of the criminal law from being used oppressively, where there is no realistic prospect of a

conviction on the evidence. The prosecution must also be in the public interest. Crown

counsel, when assessing whether it is in the public interest to recommend commencing

criminal proceedings against a person, or discontinuing cr minal proceedings against an

accused, must take into account more than the sufficiency of the evidence against that

person: all relevant circumstances must be considered, keeping in mind that "the

contemporary view favours restraint generally in the exercise of the criminal law power."1

It is sometimes overlooked that the police are also entitled to exercise their discretion

whether to invoke the criminal process against a particular person. The extent of the police

discretion has not, perhaps, been clearly articulated. Patently, the police possess a discretion

in deciding whether there is sufficient evidence to warrant the laying of a criminal charge.

They are also entitled not to invoke the criminal process in the case of minor offences

where the giving of a caution would suffice.

1 R. v. McDougall, supra, at 127.

 -52-

1. The Threshold Standards or Tests Currently Applied

The threshold test for whether there is sufficient evidence to warrant the laying of

a criminal charge is not uniform throughout Canada. In British Columbia, Quebec, and

New Brunswick, a system exists which requires pre-charge approval by a Crown prosecutor.2

Yet, even in those provinces which require pre-charge approval by the Attorney General or

his or her agent, the test is not uniform.

British Columbia has the highest standard. In that province, a charge ought not to

be laid unless there is a "substantial likelihood" of conviction. The recent report of the

"Discretion to Prosecute Inquiry," or the Owen Report, released in November 1990,

recommends that the threshold test be changed to require Crown counsel to be satisfied that

there exists a "reasonable likelihood" of conviction.3 This recommendation has, however,

not been accepted by the Criminal Justice Branch of the Attorney General of British

Columbia.4

It is to be observed that s. 504 of the Criminal Code reads, in part:

Any one who, on reasonable grounds, believes that a person has committed
an indictable offence may lay an information in writing and under Oath
before a Justice, and the Justice shall receive the information,...

In Quebec, the directive governing the Attorney General's Prosecutors indicates that prior

to approving the laying of a charge they must be

2 The Law Reform Commission of Canada, Working Paper 62, "Controlling Criminal Prosecutions: The
Attorney General and the Crown Prosecutor", at pp. 69-70.

3 "Discretion to Prosecute Inquiry" Report, at p. 105.

4 British Columbia Ministry of the Attorney General, Criminal Justice Branch Response to Commissioner
Stephen Owen's Final Report of the Discretion to Prosecute Inquiry, March, 1991, at pp. 11-14.
 -53-

legalement et moralement convaincus qu'un crime a ete commis et que c'est

l'accuse qui l'a commis. Ils doivent done etre raisonnablement convaincus
de pouvoir etablir la culpabilite de l'accuse.5

Accordingly, it appears that prosecuting counsel in Quebec are not to authorize the

laying of the charge unless they are reasonably satisfied that a conviction can be obtained.

The same directive containing the threshold test standard for Quebec indicates that the

assessment of the evidence is to include any information provided by the defence, with such

follow up to that information as is necessary in consultation with the police.

In New Brunswick, the threshold test is whether there is "a reasonable prospect" of

conviction.6

In provinces without formal pre-charge screening systems in place, there is some

variety in the standard applied to the task of charge screening by Crown counsel. It appears,

from written material provided to the Committee, that Alberta favours the "reasonable

likelihood of conviction" test, with a higher threshold test in certain complex cases.

Manitoba also applies the "reasonable likelihood of conviction" standard.7 The Nova Scotia

Pilot Project on post-charge screening applied the "reasonable chance of conviction"

standard.8 In Newfoundland, the threshold test applied is whether, despite the presence of

reasonable and probable grounds to believe an offence has occurred, there is "no probability

5 Quebec Minister of Justice, Manuel de Directives, ''Accusation - Autorisation de la Denonciation ou Depet

de 1'Acte D'Accusation'', No. ACC-3, revised 9 October, 1991.

6 See New Brunswick Department of Justice, Public Prosecutions Operations Manual, Topic 120, "Criteria
for Prosecutions", (ii) "Guidelines."

7 Manitoba Department of Justice Public Prosecutions, Policy Directive, "Laying of Charges", 1 February,
1990, Guideline No. 2:INI:1.1.

o
Nova Scotia Public Prosecution Service, Memorandum from John C. Pearson, Director of Public
Prosecutions, "Post-Charge Screening Pilot Project", 17 June, 1991, Reference No. 05-91-0004-02.
 -54-

of conviction."9 See also The Royal Commission of Inquiry into the Response of the

Newfoundland Criminal Justice System to Complaints (the "Hughes Commission") wherein the

Commissioner, the Honourable S.H.S. Hughes, Q.C., indicated at Volume 1, p. 430, that if

there is a properly laid charge, a prima facie case, no absence of jurisdiction or other legal

impediment, and a "possibility" of a conviction, the prosecution should proceed.

In Ontario, at present, there is no province-wide or uniform policy as to the threshold

test to be applied. Crown counsel having carriage of each individual prosecution ensure,

as part of their preparation for the case, that the case is sound, and that it is in the public

interest to proceed.

In Great Britain, the Director of Public Prosecutions has, in the past, stated that the

test normally applied is whether "it seems rather more likely that there will be a conviction

than an acquittal." This has become known as the "51 per cent rule," in that in order for a

prosecution to proceed, there must be at least a 51 per cent chance that it will result in a

conviction.10 This rule appeared for some time to have been adopted for the most part

by federal authorities in Australia. However, where the public interest in prosecuting was

sufficiently strong, the guidelines in Australia for a while seemed to permit a prosecution

to proceed even if a conviction were not more likely than an acquittal, provided a conviction

was "reasonably open on the evidence."* 11 It therefore appeared that for a time in

Australia, the threshold test for the sufficiency of the evidence varied with the strength of

the public interest in the prosecution. However in 1990, the Prosecution Policy of the

Commonwealth was amended. Currently in Australia, the Prosecution Policy provides, at pp.

9 Newfoundland Department of Justice, Director of Public Prosecutions, Policy Statement, 'The Decision to
Prosecute", 2 May, 1989, at pp. 4-5.

10 "Discretion to Prosecute Inquiry" Report, at pp. 30-31. See also, J.L1.J. Edwards, The Law Officers of the
Crown (1984), at pp. 413-417; Glanville Williams, "Letting off the Guilty and Prosecuting the Innocent", [1985]
Crim. L.R. 115.

11 See the Prosecution Policy of the Commonwealth of Australia (Canberra: Australian Government
Publishing Service, 1st ed., 1986), reproduced in part in the Marshall Commission, Vol. 6, at pp. 144-147.
 -55-

3-4, that "a prosecution should not proceed if there is no reasonable prospect of a conviction

being secured."

In England presently, the English Crown Prosecution Service has adopted the

standard of whether there is a "realistic prospect of a conviction."12 In the United States,

the Principles of Federal Prosecution state that a federal prosecutor should proceed to

prosecute if "the admissible evidence will probably be sufficient to obtain and sustain a

conviction."13

2. The Prima Facie Case Threshold Test

The prima facie case test does not permit an assessment by Crown counsel of the

credibility of witnesses. The credibility of witnesses is a question for the trier of fact. In

Mezzo v. The Queen (1986), 27 C.C.C. (3d) 97 (S.C.C.), Mr. Justice McIntyre, delivering the

main majority judgment of the Supreme Court of Canada, said at p. 102:

In this, he has adopted as the measure of sufficiency the concept of a prima

facie case, that is, a case containing evidence on all essential points of a
charge where. If believed by the trier of fact and unanswered, would warrant
a conviction.

In United States v. Sheppard (1976), 30 C.C.C. (2d) 424, Mr. Justice Ritchie, delivering

the majority judgment of the Supreme Court of Canada, in what has been described as the

"classic statement of the rule," said at p. 433:

With the greatest respect I cannot accept the proposition that a trial judge is
ever entitled to take a case from the jury and direct an acquittal on the
ground that, in his opinion, the evidence is "manifestly unreliable." If this

17
"Code for Crown Prosecutors", Crown Prosecution Service Annual Report, 1991-92, at pp. 47-55.

13 United States Department of Justice, July, 1980; United States Attorney's Manual, Title 9.27, Part B, s. 2.
 -56-

were the law it would deprive members of the jury of their function to act as
the sole judge of the truth or falsity of the evidence and would then, in my
opinion, be contrary to the accepted role of the judge in our legal system.

[emphasis in original]

It is argued by those who support the prima facie case concept as a threshold test of

the sufficiency of the evidence to warrant a prosecution that the credibility of witnesses is

a question for the trier of fact, and any attempt by Crown counsel to assess the credibility

of witnesses in deciding whether to invoke the criminal process involves usurping the

function of the trier of fact.14

The Committee agrees that the credibility of witnesses is generally for the trier of

fact, particularly where the assessment of credibility is based on the demeanour of the

witness. The Committee considers, however, that, in some cases, some assessment of the

credibility of witnesses is not only desirable, but necessary, before invoking the criminal law

process. For example, if the only witness for the Crown had previously fabricated false

charges, there was no evidence supporting the story of the witness, and the story of the

witness was at variance with the other incontrovertible facts, Crown counsel, even if there

could be said to be a prima facie case, might properly consider that there was no reasonable

prospect of conviction and decline to invoke the process of the criminal law.

Similarly, Crown counsel does not ordinarily consider the defences open to an

accused in deciding whether to initiate or to discontinue criminal proceedings. However,

in some cases, it is necessary to do so. To take an extreme example, if the accused was in

jail at the time of the commission of the offence, and, hence, could not have committed it,

the public interest would clearly not be served by pressing on with the prosecution, despite

the apparent strength of the Crown's evidence. Such information would properly lead to

criminal proceedings being discontinued. To take another example, if the defence advanced

14
See, for example, Edwards, supra, at p. 414.
 -57-

is self-defence, of which Crown counsel has notice, and a number of reputable witnesses who

did not know either the deceased or the accused, saw the entire event which is the subject

matter of the charge, and state that the accused was viciously attacked and acted entirely

in self-defence, it would be entirely proper for Crown counsel to take cognizance of this

evidence in deciding whether to discontinue criminal proceedings.

A final illustration on the consideration of defences will suffice. Suppose the defence

is alibi, of which Crown counsel has notice, and the alibi is that the accused was at work

when the offence is alleged to have been committed. An investigation by the police shows

the alibi is supported by the accused's employer and the accused's work record, such as a

computer timecard. In the absence of some indication that the evidence of alibi is false,

Crown counsel would be entitled to withdraw the charge.

Such consideration of defences is, however, limited to those situations where the

defence has come to the attention of Crown counsel, or should reasonably be known. It is

not part of the proper exercise of prosecutorial discretion *o endeavour to anticipate and

consider every possible defence that might be raised in a particular case. Further,

information provided by the defence need not necessarily be taken at face value in assessing

whether a prosecution should proceed. It may be investigated further, as seems appropriate

to Crown counsel in consultation with the police.

The admissibility of evidence is generally a matter for the trial court, as are

credibility and likely defences. But, like credibility and expected defences, it may, in some

circumstances, be appropriate for Crown counsel to consider admissibility when deciding

whether to commence or continue a prosecution. If, for example, evidence crucial to the

prosecution's case is clearly or obviously inadmissible, there may be little point in

proceeding with the prosecution, unless admissible evidence on the point can be obtained.
 -58-

Considerable caution must be exercised, however, in reaching a conclusion that

evidence is clearly or obviously inadmissible. For example, in recent cases15 the Supreme

Court of Canada has occasioned a movement away from the strict categorization of evidence

as admissible or inadmissible depending upon whether it is hearsay, and, if so, whether it

fits the criterion of an established exception to the rule that hearsay evidence is

inadmissible. The Supreme Court has instead adopted a more flexible, principle-based

approach, in which the admissibility of hearsay evidence depends upon its reliability, and its

necessity to prove a fact in issue.16 The result of this evolution in the law of evidence is

that it may be more difficult for Crown counsel, in determining whether a threshold test for

the commencement or continuation of a prosecution has been met, to conclude that

proposed hearsay evidence is so clearly inadmissible that the prosecution cannot continue.

It has been said before the Committee that the 51 per cent rule imposes too high a

burden on Crown counsel in deciding whether to recommend the institution of criminal

proceedings against a person or whether to withdraw a criminal charge if laid. It is said that

where the outcome of a prosecution depends on the admissibility of evidence which is in

dispute, Crown counsel may be unable to predict that a conviction is more likely than not,

yet may be of the opinion that there is a prima facie case, and that the public interest

requires that the case be prosecuted.

Likewise, it may be extremely difficult to ascertain how a key witness for the

prosecution will testify in open court, and how that witness will react to cross-examination.

This may be particularly true of child witnesses, or witnesses with special communication

needs, due to, for example, physical or mental handicap. Therefore, it may not be possible

to say that a conviction is more likely than not. However, based on other considerations,

such as physical evidence, or the statements that the witness has given to investigators, and

15 R. v. Khan (1990), 59 C.C.C. (3d) 92; R. v. Smith (1992), 75 C.C.C. (3d) 257; R. v. K.G.B., 25 February,
1993, unreported (S.C.C.).

16
See Smith, supra, at 267-271.
 -59-

the serious allegations those statements contain, it may well be that it is in the public
interest to prosecute the matter.

The 51 per cent rule suffers from another flaw, noted by Professor Edwards, and
indeed acknowledged by one Director of Public Prosecutions in England: namely, that in
matters of prosecutorial discretion, "it is not possible to evaluate to a percentage degree of
accuracy."17 Professor Edwards comments that using such an approach to the sufficiency
of the prosecution's case

is unhelpful because of the false conception implicit in such language that the
prosecutor's decision-making bears the stamp of scientific objectivity. Nothing
could be more misleading insomuch as it obscures the reality of the
. . oi
situation.

3. The Proposed Standard of the Law Reform Commission of Canada

The Law Reform Commission of Canada has concluded in its Working Paper 62,
Controlling Criminal Prosecutions: The Attorney General and the Crown Prosecutor (1990), at
pp. 79-82, that the prima facie case test is unsatisfactory in that it does not allow scope for
an assessment of the credibility of the evidence. The Commission has, therefore, stated that
its standard falls between that of a prima facie case, and the standard that requires a greater
likelihood of conviction than not (the 51 per cent rule).

The standard proposed by the Law Reform Commission of Canada, essentially, is

this:
(1) Whether Crown counsel believes that there is evidence on which a reasonable jury
properly instructed could convict the suspect (i.e. a prima facie case); and, if so,
(2) Whether the prosecution has a reasonable chance of obtaining a conviction.

17 Edwards, supra, at p. 416.

18
Ibid.
 -60 -

However, the Law Reform Commission states that the prosecutor should also take

into account whether considerations of public policy make a prosecution desirable despite

a low likelihood of conviction.

According to the Law Reform Commission, the appropriate starting point is that

Crown counsel must believe that there is a prima facie case, that is, there is evidence

whereby a reasonable jury properly instructed could convict the accused. The Law Reform

Commission is also of the view that it is appropriate for Crown counsel to engage in some

weighing of that evidence, and that it would be wrong to clog the courts with prosecutions

that an experienced Crown counsel fully expects to fail, simply because there is some

evidence on each element of the offence. The Law Reform Commission expresses the view

that the experience of Crown counsel is an asset that should be used in the criminal justice

system, to aid in assessing the sufficiency of the case that can actually be presented in court.

4. The Committee's Formulation of the Threshold Test

The Committee is of the view that the following three step method of formulating

a threshold test for the commencement of a prosecution is helpful.

At whatever level of authority the decision is ultimately taken to prosecute or

not to prosecute, the evaluation process involves three separate but inter¬
related stages....

The first objective is to ensure that there are no insuperable legal or

jurisdictional obstacles that could constitute a fatal flaw to the prosecution of
a case....

The second stage ... is concerned with the issue whether the evidence in the
case is sufficient to justify instituting criminal proceedings....

... Having decided that the evidence is sufficient to justify criminal

proceedings, [the prosecutor] must then go on to consider whether the
provable facts and the whole of the surrounding circumstances are such that
 -61-

it is incumbent upon [him or her], in the public interest, to institute a

prosecution....19

In accordance with this approach to the threshold test for commencing or continuing

a prosecution, the Committee is of the view that there must, of course, be at least a prinia

facie case. A case that does not meet this hurdle, as it has been defined in cases such as

Mezzo, and Sheppard, supra, will not ever be left with the trier of fact in any event. It

should never be proceeded with, as it will needlessly subject an accused person to the ordeal

and expense (which will be borne by the state if the accused receives legal aid) of a criminal

prosecution, and will needlessly expend limited judicial and prosecutorial resources in the

fruitless effort of reaching a foregone conclusion.

The second stage in formulating an appropriate threshold test is, in the Committee's

view, much more involved. For the reasons stated above, the Committee rejects the idea

that the threshold test for commencing a prosecution in Ontario should be the 51 per cent

rule.

However, for the reasons also stated above, the Committee is of the view that Crown

counsel, in determining the future of a prosecution, should do more than ascertain the

existence of evidence capable of making out each of the necessary elements of the offence.

The Committee agrees with the Law Reform Commission that prosecutorial experience can

and should be brought to bear on a case. Such experience is an important resource, that

ought to be well utilized in a system where discretion is so necessary, and where the

consequences of the discretionary decisions to be made are so weighty. Since the

Committee is of the view that some assessment of the credibility of witnesses, the

admissibility of evidence, and a consideration of likely defences is both desirable and

necessary, the Committee is, therefore, also of the view that a higher threshold standard

than a prima facie case is necessary to institute or continue a prosecution.

19
Edwards, The Attorney General, supra, at pp. 413, 423.
 -62-

As stated above, the Law Reform Commission of Canada has proposed a rule that,

in addition to the prima facie test, there must be "a reasonable chance" of conviction. The

Law Reform Commission of Canada has stated that its proposed test is a higher standard

than the prima facie case test, and lower than the 51 per cent rule. The Law Reform

Commission's test, therefore, occupies a similar middle ground to the test which the

Committee ultimately favours. For this reason, the Law Reform Commission's test has

much to recommend it.

The Committee has, however, ultimately settled on a differently worded test. In the

Committee's view, the threshold test of a "reasonable chance" of conviction suffers from the

shortcoming that the word "chance" may suggest an element of luck, in the minds of some

people. It would be unfortunate if any member of the public were to perceive that the

decision to put the liberty of an individual in jeopardy by invoking the criminal process

involved an element of chance, in the sense of fortuitousness. As one member of the

Committee put the point, "conducting a criminal trial is not simply a throw of the dice."

There is of course an accepted use of the word, "chance," that imports no element

of luck. For example, to ask about the chances of winning a particular appeal, one is

seeking a professional assessment of the merits of the position advanced, and the degree of

probability that that position will prevail: luck has nothing to do with such an assessment.

Similarly, a "reasonable chance of conviction" can be seen as a reasonable degree of

probability that the trial will end in conviction: likewise a standard that embraces no notion

of luck. However, given the dual meaning of the word "chance," it is, in the Committee's

view, preferable to formulate the threshold test using a word that captures the idea of one

of those meanings, i.e. a degree of probability, without any possible connotation of the other

meaning, i.e. luck.

The "reasonable likelihood of conviction" test was recommended by the Owen Report

to replace the existing test used in British Columbia, which required a "substantial likelihood

of conviction" as the appropriate threshold test. "Likelihood" means the state of being likely
 -63-

or probable. Standing alone, the word "likelihood" conveys the meaning of more likely than

not. This is similar to the 51 per cent rule. However, the word 'likelihood" is often

qualified. For example, one might say that a proposed plan has little likelihood of success,

or that there is a strong likelihood that the plan will succeed.

The word likely" is often equated with the word "probable" and either word, standing

alone, means that a certain event is more likely than not to happen. However, "reasonably

probable" indicates a lesser degree of certainty than the word "probable" standing alone.

In Air New Zealand Ltd. v. Commerce Commission, [1985] 2 N.Z.L.R. 338, Davison, C.J.,

said at p. 342:

on a graduated scale one might place expressions of likelihood in the

following order of certainty: possible; distinct or significant possibility;
reasonably probable; probable; highly probable.

In the threshold test proposed in the Owen Report, that there must be "a reasonable

likelihood" of conviction, the word "likelihood" is modified by the word "reasonable". It

might therefore be argued that it means something less than probable, i.e. something less

than more likely than not. However, the Committee concludes that the threshold test of "a

reasonable likelihood" of conviction may nonetheless be interpreted as requiring a judgment

by a person invoking the criminal process that a conviction is more likely than not,

particularly when one considers the British Columbia standard which Commissioner Owen

suggested it replace. The risk of such an interpretation arises from the use of the word

likelihood" in the test. Standing alone, the word "likelihood" clearly does mean more likely

than not. As stated above, it is, practically speaking, impossible to quantify the percentage

below which it cannot be said that there is "a reasonable likelihood" of conviction. This is

a matter of sound judgment. Therefore, a phrase which invites such numerical

quantification ought to be avoided.

Although likelihood" is modified by "reasonable" in the test proposed by the Owen

Commission, the difficulty with the word "likelihood" remains, in the same sense that
 -64-

difficulties remain with the word "chance" in the "reasonable chance" of conviction test.

Both pose some risk of misinterpretation, which makes a phrase less vulnerable to

misinterpretation desirable.

A reasonable prospect of conviction is the threshold test adopted in New Brunswick,

although it appears that it is interpreted in that province as requiring that a conviction be

more likely than not.20 This test has also recently been proposed by the federal

Department of Justice in lieu of the "reasonable likelihood" of conviction threshold test.21

The word "prospect" is a word of wide meaning and, essentially, indicates a mental

survey of the future. One dictionary definition of prospect is "outlook" for the future; for

example, the outlook for A's recovery is poor or, as the case may be, is good. Another of

the dictionary meanings of prospect is "expectation." The Shorter Oxford English Dictionary,

3rd Edition, Volume 1, at page 655, defines expectation, in part, as "the degree of

probability of the occurrence of any contingent event."

An expectation with respect to the happening of a future event may cover a broad

spectrum of certainty of the happening of that event. An expectation may be slight or very

strong. In this sense, therefore, the "prospect" of something happening is very much like the

"chance" of something happening, using the meaning of "chance" that has no connotation of

luck. The "reasonable prospect" standard, is therefore much like the "reasonable chance"

standard. "Prospect," however, does not have the association with games of chance that led

the Committee to reject the "reasonable chance" formulation.

20 New Brunswick Department of Justice Public Prosecutions Operations Manual, Topic 120, "Criteria for
Prosecutions."

21 77je Decision to Prosecute, Department of Justice (Canada), July, 1992.

 -65-

In the threshold test adopted by New Brunswick and the federal Department of

Justice, the word "prospect" is qualified by the word "reasonable."22 Even if it could be said

that there is little difference in substance between the "reasonable prospect" of a conviction

threshold test and one interpretation of the "reasonable likelihood" of a conviction threshold

test, the former is none the less preferable. The reasonable prospect test poses less risk

of misinterpretation as a "more likely than not" standard because it does not employ the

word "likelihood."

Ultimately, therefore, the Committee adopts, as the threshold test at the

second stage of the review of charges conducted by Crown counsel, the "reasonable prospect

of conviction test," which entails considering the matters discussed above. This standard is

higher than that of a prima facie case but, the Committee emphasizes, it does not require a

conclusion that a conviction be more likely than not.

1. The Committee recommends that for the purposes of a threshold test regarding the

screening of charges by the prosecutor, the test of a "reasonable prospect of conviction" be

adopted for all offences.

2. The review to detemiine whether the threshold test has been met should include an

assessment of the probative value of the evidence, including some assessment of the credibility

of witnesses.

3. The review to determine whether the threshold test has been met should include

consideration of the admissibility of evidence. The threshold test will not be met where evidence

necessary to the prosecution is clearly or obviously inadmissible.

22 For a discussion of the word "reasonable", particularly in relation to the word "probable", see The Royal
Commission of Inquiry> into the Response of the Newfoundland Criminal Justice System to Complaints (the "Hughes
Commission") Vol. 2, Appendix L, at pp. 313-326.
 -66 -

4. The review to determine whether the threshold test has been met should include a

consideration of any defences, for example alibi, that should reasonably be known, or that have

come to the attention of the Crown.

5. The same threshold test applies for commencing, continuing, or discontinuing a

prosecution.

A reasonable prospect of conviction as a threshold test has the additional advantage

of being already established and well known in Canada. This is, in the Committee's view,

an important factor given that there are presently in Canada various threshold tests being

applied in various jurisdictions.

In England, the Code for Crown Prosecutors adopts the standard of a "realistic

prospect of conviction." The English test of a "realistic prospect of conviction" has much to

commend it. It is similar to the threshold test recommended by the Committee. However,

for reasons discussed above, the Committee favours the test of a "reasonable prospect of

conviction." None the less, the existence or otherwise of a "realistic prospect of conviction"

is properly a factor in the assessment of a reasonable prospect of conviction. For example,

it is difficult to think that there could be a reasonable prospect of conviction if the prospect

of conviction is not realistic; that is to say, the prospect of conviction is divorced from the

practical realities of the case Crown counsel has before him or her at the time the decision

is to be made.

Occasionally, the 51 per cent rule has been alternatively stated as a "reasonable

prospect of conviction" standard, i.e. the wording the Committee has adopted. See, for

example, Edwards, supra, at p. 414, and the New Brunswick Department of Justice Public

Prosecutions Operations Manual, Topic 120, "Criteria for Prosecutions," (ii) "Guidelines."

The test proposed by the Committee does not, however, require a 51 per cent chance of

conviction.
 -67 -

The threshold test of a reasonable prospect of conviction is, in the Committee's view,

an objective standard based on the legal and factual soundness of the Crown's case after

making some allowance for an appropriate assessment of credibility, likely defences, and the

admissibility of evidence. Whether the threshold test is satisfied should not depend, for

example, on the reluctance of juries to convict in certain kinds of cases. Basing a decision

to discontinue a prosecution on such a consideration assumes that the jury selected, if the

prosecution proceeds, will follow some pattern that may be discernible from looking at a

large number of jury verdicts. This improperly usurps the function of the particular jury to

be selected, by ascribing to them the conclusion they will likely reach.23

Neither should the assessment of whether there is a reasonable prospect of conviction

depend on questions such as whether the jury is likely to understand the evidence in, for

example, a complicated fraud. Again, taking this sort of consideration into account usurps

the jury's function by assuming the level of comprehension a jury will bring to the case.

Likewise, the assessment of whether there is a reasonable prospect of conviction

should not depend on a particular prosecutor's view that, because of particular

characteristics or demeanour, a witness is unlikely to make a favourable impression on the

jury, or unlikely to withstand cross-examination. The case may, of course, end up being tried

by a judge sitting alone.' There may be little or no cross-examination, or it may be

ineffectual. With the recent increase in prosecutions where both victim and accused are

members of the same family, the attitudes toward the prosecution of important witnesses

may be more difficult to assess or predict because of pre-existing tensions or loyalties within

the family. A victim who is a key witness for the prosecution may have a physical or mental

handicap, or may be suffering from a recognized clinical condition, such as Child Sexual

Abuse Accommodation Syndrome, which complicates any assessment of that witness'

23 See, for example, Glanville Williams, "Letting Off the Guilty and Prosecuting the Innocent", supra, at p.
118; American Bar Association, Standards for Criminal Justice, 2nd ed. 1980, as updated, chapter 3, 'The
Prosecution Function", s. 3.9.
 -68 -

demeanour or behaviour, and may even require expert evidence to explain it at trial.24

Further, the views of prosecutors may vary as to the impression that a particular witness may

make. The Supreme Court of Canada has recognized the dangers of assessing credibility in

accordance with outdated or stereotypical notions of human behaviour.25 These dangers

have recently been demonstrated to be particularly serious and potentially far reaching by

the Hughes Commission of Inquiry, which studied the response of the Newfoundland

criminal justice system to complaints of criminal conduct at Mount Cashel. As stated by

Commissioner Hughes at p. 430 of his Report,

My concern with this subject is based upon my belief that prevention of

recurrence of the events of Mount Cashel, and many more besides, largely
depends on a resolute prosecution of offenders where there is a prima facie
case and no absence of jurisdiction or other legal impediment.

While the Committee adopts a somewhat more stringent threshold test for the

commencement of a prosecution than that recommended by Commissioner Hughes, it

cannot be overemphasized that Crown counsel cannot substitute their own particular

subjective views about criminal proceedings for the objective indications in the evidence.

Accordingly, assessments of demeanour and other characteristics of prosecution

witnesses are best left for the public forum of the trial court, where any errors in judgment

can be best prevented or corrected. Ultimately, criminal justice should be administered

even-handedly, which can best be ensured by having an objective test focused on the quality

of the Crown's case, rather than on the subjective assessments of particular Crown counsel.

Thus, the review of credibility or other capacities of witnesses undertaken for purposes of

the threshold test should be founded on objective indicators, such as incontrovertible

24 R. V. R^4.C. (1990), 78 C.R. (3d) 390 (B.C.CA); R. v. F.E.J. (1990), 74 C.R. (3d) 269 (Ont. CA.); R. v.
S.R. and D.R. (1992), 73 C.C.C. (3d) 225 (Ont. C.A.); Khan v. College of Physicians & Surgeons of Ontario (1992),
76 C.C.C. (3d) 10 (Ont. CA).

25 Lavallee v. The Queen (1990), 55 C.C.C. (3d) 97; R. v. Seaboyer, R. v. Gayme (1991) 66 C.C.C. (3d) 321;
R. v. W.K.L. (1991), 64 C.C.C. (3d) 321; R. v. R.W. (1992), 74 C.C.C. (3d) 134; R. v. Khan, supra, (S.C.C.)
 -69-

evidence from an independent source that a particular witness is mistaken or lying. A

decision as important as who is or is not to be prosecuted should not depend on the

happenstance of who is assigned to the case.

As the Committee has observed, some assessment of the credibility of witnesses is

appropriate in deciding whether the threshold test is satisfied. However, this assessment of

the credibility of witnesses has a limited purpose and is of a limited kind. Once the

threshold test is satisfied, the credibility of witnesses is for the trier of fact.

It is also generally inappropriate, in the Committee's view, for the prosecution to turn

on the prosecutor's personal feelings or opinion as to whether or not the accused is guilty.

This is inconsistent with Crown counsel's role as a Minister of Justice. A prosecution clearly

cannot commence unless an informant, usually a police officer, has reasonable grounds to

believe, and does believe, that the accused has committed the offence for which he is

charged.26 However, after the information is laid, an important aspect of Crown counsel's

prosecutorial responsibilities is to maintain an impartial independence from the police or

other informant, and an objectivity with respect to the prosecution that the police may not

have, due to their minds having been made up in the course of the investigation. As stated

by one experienced Canadian prosecutor,

In performing his or her "quasi judicial" role, the prosecutor must not be
affected by personal animus towards the accused. During the prosecution

26 Criminal Code, s. 504 See also R. v. Peavoy (1974), 15 C.C.C. (2d) 97 at 106 (Ont. H.C.) where Henry
J. stated:

A person swearing an information, particularly a law enforcement officer, is

not at liberty to swear the information in a perfunctory or irresponsible
manner with a reckless disregard as to the truth of his assertion. To do so is
clearly an affront to the Courts and is at variance with the right of the citizen
to be left alone by the authorities unless there is reasonable and probable
grounds for invading his liberty by compelling his attendance before the
Courts.

See also Nelles v. Ontario, [1989] 2 S.C.R. 170 at 193, per Lamer J. (as he then was).
 -70 -

process, Crown counsel is called upon to make numerous decisions of crucial

importance to the accused and the integrity of the criminal justice system.
There is a danger that personal conviction concerning the guilt of the accused
will cloud the prosecutor's ability to act as dispassionate and impartial
decision maker.27

If only those cases were prosecuted in which Crown counsel firmly believed in the guilt of

the accused, the settled notion that "the purpose of a criminal prosecution is not to obtain

a conviction"28 may well be compromised in practice by prosecutors who, having formed

the opinion that the accused is guilty, would therefore see it as their duty to obtain a

conviction. In the discussion of public interest factors that may affect the course of a

prosecution which follows, infra, the point is made that a prosecutor's animus toward an

accused person is irrelevant.29

The Committee recognizes that there is support in the legal literature for the

proposition that a prosecution should not be instituted or proceed where the prosecutor has

a genuine doubt as to the guilt of the accused. Perhaps the most famous example is

Christmas Humphreys' statement: "I have never myself continued a prosecution where I was

at any stage in genuine doubt as to the guilt, as distinct from my ability to prove the guilt,

of the accused."30 Certainly, Crown counsel with a genuine doubt as to the guilt of an

accused is duty bound to carefully explore the reasons for that doubt as they might be

revealed in the Crown Brief or investigative file, and to recommend any further

27 J.C. Pearson, The Discretion to Prosecute, Federation of Law Societies National Criminal Law Program,
Materials, s. 3.1 (1992), at p. 18.

28 Boucher v. The Queen, [1955] S.C.R. 16 at 23.

29 The United States Principles of Federal Prosecution likewise state that a prosecutor's own feelings about
an accused are irrelevant to whether the prosecution should proceed or not: see Part B, s. 6.

30 C. Humphreys, "The Duties and Responsibilities of Prosecuting Counsel", [19551 Crini. L.R. 739 at 740.
See also, for example, the American Bar Association Standards for Criminal Justice, supra, s. 3.54(i), which
includes as a factor to consider in determining whether to proceed with a prosecution "the prosecutor's
reasonable doubt that the accused is in fact guilty"; Glanville Williams, "Letting off the Guilty and Prosecuting
the Innocent®, supra, at 115-116.
 -71 -

investigations as appear necessary. Such investigations may demonstrate that it is necessary

to withdraw the charge, or that it is not in the public interest for the prosecution to proceed.

If, however, following such review and investigation, there remains a reasonable prospect

of conviction, and if the prosecution is otherwise in the public interest, the prosecution

should usually proceed. On the other hand, the prosecutor's belief in the guilt of an accused

counts for nothing if, on the evidence, there is no reasonable prospect of conviction.

It has long been recognized in our law that at various stages in the criminal process

the requisite standard of proof varies. For example, a charge is properly laid, even though

there is nothing more than reasonable grounds to believe that the accused person is

guilty.31 Likewise, an accused is properly committed for trial even if there is nothing more

than a prima facie case.32 But ultimately, an accused person will, in most cases, be entitled

to an acquittal unless, at the end of the case, guilt is proven beyond a reasonable doubt.33

As proof beyond a reasonable doubt is a higher standard than whether there is a reasonable

prospect of conviction, it may well be that a reasonable doubt about the guilt of the accused

can exist notwithstanding that the latter standard is met. However, in the Committee's view,

the existence of such a doubt cannot, generally speaking, justify preventing the community

from passing judgment as to the guilt or innocence of an accused where there is a

reasonable prospect of conviction and the prosecution is otherwise in the public interest.

Crown counsel need not and ought not to be substituting his or her own views for

those of the trial judge or jury, who are the community's decision makers. It cannot be

forgotten that much of the public's confidence in the administration of justice is attributable

to the trial court process that ensures that justice is not only done, but is seen to be done,

and to the appellate court process that ensures an orderly and reasoned review of trial

31 Criminal Code, s. 504.

32 United States v. Sheppard, supra.

Even an onus on the Crown of proof of all elements of an offence beyond a reasonable doubt is not an
inflexible rule. See, for example, Wholesale Travel Group Inc. v. The Queen (1991), 67 C.C.C. (3d) 193 (S.C.C.).
 -72 -

decisions where necessary. Granting Crown counsel the power to initiate or discontinue

prosecutions based on a subjective assessment of whether or not the accused is guilty would,

in some circumstances, be tantamount to replacing these open, impartial, and community-

based processes with the unexplained, unreviewable decisions of prosecutorial officials who

have no direct accountability to the public.34 Where, however, Crown counsel harbour a

doubt about the guilt of an accused in case that proceeds because it meets the threshold test

and is in the public interest, there may be some ethical restrictions on the arguments that

Crown counsel is entitled to make. Sir William Boulton, in, A Guide to Conduct and

Etiquette at the Bar of England and Wales,35 states that counsel for the prosecution "must

not urge any argument that does not carry weight in his own mind, or try to shut out any

legal evidence that would be important to the interests of the person accused." Moreover,

Crown counsel's role as "Minister of Justice" may require him or her to invite the finder of

fact to acquit an accused where the Crown's case has become unsound, for example, as a

result of additional evidence or cross-examination.

It must not be overlooked that in arriving at a conclusion that a particular

prosecution meets the threshold test proposed by the Committee, the prosecutor must

believe that there is at least a prima facie case against the accused. Further, there will

already have been some consideration of credibility, admissibility of evidence, and likely

defences in arriving at the conclusion that there is a reasonable prospect of conviction.

34 The recent Royal Commission of Inquiry into the Response of the Newfoundland Criminal Justice System
to Complaints (1992) (the "Hughes Commission"), went further, and at p. 427 criticized exercises of prosecutorial
discretion that involve any weighing of the evidence:

The image that is conjured up ... is one of arrogating to the Crown the
function of the court, weighing the evidence and the credibility of the
witnesses and, particularly in a jury trial anticipating what properly instructed
jurors, all laymen by law, may decide as sole judges of the facts.

Commissioner Hughes concludes (at p. 430) that "if the Crown shares the opinion of the police that there are
reasonable grounds for believing that an offence has been committed, and there is a possibility of conviction, it
should not flinch because the odds are against success." [emphasis in original]

35 6th Ed. (1975), at p. 74.

 -73 -

Therefore, Crown counsel harbouring a genuine doubt about the guilt of an accused in a

prosecution that passes the threshold test should consult with his or her more senior and

experienced colleagues. In the unusual case, where the facts are not in dispute, and any

responsible Crown counsel would harbour a genuine doubt about the guilt of the accused,

it may be appropriate to advise that a prosecution not be commenced or, if it is already

commenced, discontinued, despite the threshold test having been met. However, where, for

example, the facts are in dispute, or matters of credibility are involved, the case should be

prosecuted, and the ultimate decision on the guilt of the accused be left to the community's

trier of fact, to be made in a public courtroom.

The fact that the threshold test is, in the Committee's view, an objective standard

rather than a subjective one, does not change the fact that in applying the test, one is

engaged in an irreducible exercise of prosecutorial judgment and discretion. In the Ouimet

Report it was stated that, "the prosecution should have appropriate discretion to decide

whether a charge is to be laid or proceeded with."36 The Committee also notes that the

English Code for Crown Prosecutors emphasizes the importance of the prosecutor's discretion

in the following terms:

Crown Prosecutors at every level ... will have great scope for the exercise of
discretion at various stages of the prosecution process and in respect of many
different functions. The Crown Prosecutor will always take responsibility for
the exercise of the discretion, although some functions will necessarily have
to be carried out under his supervision. The judicious use of the discretion,
based on clear principles, can better serve justice, the interests of the public
and the interests of the offender, than the rigid application of the letter of the
law. The misuse of discretionary powers, on the other hand, can have severe
consequences not only for those suspected of crime, but also for the public at
large and the reputation of justice....37

36 Towards Unity: Criminal Justice and Corrections (the "Ouimet Report") 1969, at p. 17.

Code for Crown Prosecutors, supra, s. 3.

 -74-

So, as in all matters of discretion, the threshold test recommended by the Committee is one

that contains within it some measure of latitude. Experience is often an invaluable asset in

minimizing that latitude. Consequently, Crown counsel are well advised to seek the advice

of more senior colleagues when faced with a finely balanced decision to prosecute a case

or discontinue it. However, inevitably, in some circumstances, reasonable Crown counsel

will reasonably differ about application of the Committee's threshold test. As pointed out

by Professor Edwards (above) in relation to the 51 per cent rule, applying this test is not a

matter of scientific exactitude, and no one should expect that it could be so.

For example, the fact of an acquittal at trial does not mean that the threshold test

was necessarily improperly applied. Unexpected defences may succeed. Defence cross-

examination may be particularly effective. Likewise, it is well known that testimony of

prosecution witnesses at trial may, on occasion, fall short of what might have reasonably

been anticipated before trial. Neither does the fact that a verdict is set aside as

unreasonable on appeal necessarily indicate that there was no reasonable prospect of

conviction prior to trial. The Court of Appeal has, of course, the benefit denied to a

prosecutor of reviewing all of the evidence as it unfolded at trial, including any evidence

called by the defence.

Despite the fact that there is some measure of flexibility in the standard proposed

by the Committee, it remains an objective test, and any reasonable differences of opinion

that do arise in a given case, must be just that; reasonable in the sense that they are based

on reasons found in the case itself, rather than upon subjective factors unique to the

particular prosecutor.

5. The Threshold Test and the Public Interest

Once the threshold test for the sufficiency of the evidence has been met, it is, of

course, necessary to ascertain whether a prosecution is, in all of the circumstances, in the
 -75-

public interest. In 1925, Sir John Simon, then Attorney General of England, put the

principle this way in a much quoted speech in the House of Commons:

[Tjhere is no greater nonsense talked about the Attorney General's duty, than
the suggestion that in all cases the Attorney General ought to decide to
prosecute merely because he thinks there is what lawyers call "a case". It is
not true, and no one who has held that office supposes it is.38

Sir Hartley Shawcross, Attorney General in 1951, echoed this fundamental principle in his

famous speech in the House of Commons when he stated that "it has never been the rule

in this country -1 hope it never will be - that suspected criminal offences must automatically

be the subject of prosecution.... [Tjhe public interest ... is still the dominant

consideration."39 In Ontario, Attorneys General and their agents have clearly recognized

this constitutional obligation to act, at all times, in the public interest when exercising

prosecutorial discretion: see, for example, Campbell v. The Attorney General of Ontario

(1987), 31 C.C.C. (3d) 289 (Ont. H.C.); aff'd 35 C.C.C. (3d) 480 (Ont. C.A.); leave to appeal

to S.C.C. refused 35 C.C.C. (3d) 480n; I.G. Scott, 'The Role of the Attorney General and

the Charter of Rights" (1986-87), 29 Crim. L.Q. 187, at pp. 189-192.40

Accepting, then, the overriding obligation of the Attorney General and his or her

agents to exercise their prosecutorial discretion in the public interest, it is necessary to

address how this consideration of the public interest ought to be carried out in the

circumstances of any given prosecution. As stated above, the Committee accepts Professor

Edwards' analytical approach to the exercise of prosecutorial discretion. Therefore, it is the

Committee's opinion that consideration of the public interest in a prosecution must only be

38 H.C. Debates, Vol. 188, col. 2105, December 1,1925. See J.LI.J. Edwards, The Law Officers of the Crown,
at p. 222.

39 H.C. Debates, Vol. 483, col. 681, January 29, 1951.

40 See also Ontario Legislative Assembly, Debates, 23 February, 1978 at pp. 51-52, wherein then Attorney
General Roy McMurtry explained the decision not to lay charges against Francis Fox, then Solicitor General of
Canada, who resigned when it was found out that he had forged the name of the husband on a consent form
required to carry out an abortion.
 -76-

taken into account after it has been determined that there is both a prima facie case, and

a reasonable prospect of conviction.41 In the Committee's opinion, no public interest,

however compelling, can warrant the prosecution of an individual if there is no reasonable

prospect of conviction. As one commentator has observed, "Public outrage at an incident

which leads to a clamour for prosecution is no substitute for evidence in court, and to

conclude otherwise would be to take the initial step down the path of persecution rather

than prosecution."42 The Committee also observes that an appellate Court is empowered

to set aside a conviction if it is unreasonable in the circumstances: see s. 686(1 )(a)(i) of the

Criminal Code and R. v. R.W. (1992), 74 C.C.C. (3d) 134 (S.C.C.).

6. The Committee recommends that public interest factors should only be considered after

the threshold test has been met, and then should only be used to refrain from commencing, or

to discontinue a prosecution.

As stated above, the due enforcement of the criminal law is fundamentally important

to Canadian society. It follows, therefore, that if there is both a prima facie case against an

accused person and, upon a closer review of the case, a reasonable prospect of conviction,

it will, in most circumstances, be presumptively incumbent upon Crown counsel to prosecute:

in other words, it will be in the public interest to do so. When the evidence meets the

threshold test for sufficiency recommended by the Committee, the community, through the

courts, should generally, although not invariably, be presented with the opportunity to reach

a conclusion as to the guilt or otherwise of the accused in a fair and public hearing. The

general importance of proceeding with a prosecution where there is a reasonable prospect

of conviction has been well and poignantly demonstrated by the circumstances that

41 On this point, Sir Hartley Shawcross stated (H.C. Debates, Vol. 483, Col. 68):

It is not in the public interest to put a man upon trial, whatever the suspicions
may be about the matter, when the evidence is insufficient to justify his conviction,
or even to call upon him for an explanation.

42 R.K. Daw, The "Public Interest" Criterion in the Decision to Prosecute" (1989), 53 J. Crint. L. 485, at p.
490.
 -77-

culminated in the Hughes Commission, as discussed above. Prosecuting counsel must be

"resolute" in bringing those reasonably suspected of having committed criminal offences

before the courts.

The public interest in a prosecution is, however, very broad, and may be comprised

of a great number of diverse aspects. Further, those individual aspects of the public interest

may vary greatly from case to case. For this reason, the Committee has endeavoured to

identify some factors that may be relevant in assessing whether, despite the existence of a

reasonable prospect of conviction, a prosecution is not in the public interest. The

Committee reiterates, however, that these factors which follow cannot be used to justify

commencing a prosecution where the threshold test for the sufficiency of the evidence has

not been met. Rather, these factors can only be used to refrain from commencing, or to

discontinue a prosecution where there is, on the evidence, a reasonable prospect of

conviction.

In the Committee's view, postponing the consideration of public interest factors until

after it has been decided that there is a reasonable prospect of conviction, and then using

those factors only to decide whether a prosecution which otherwise would proceed ought not

to, ensures the greatest possible equality of treatment among potential accused persons.

The case against all potential accused persons is evaluated in accordance with the same

standard: whether there is a reasonable prospect of conviction. Thereafter, the differential

treatment of accused persons is justified by the various public interest factors that are or are

not present in the particular case.

6. Various Public Interest Factors that May be Relevant

The various public interest factors discussed below may or may not be relevant to a

consideration of the public interest in prosecuting any given case. Likewise, factors

discussed below, and indeed others not mentioned, that may be present in many cases, may

be present to varying degrees, or may be accorded varying weight depending on the presence
 -78-

or absence of other factors, and the interrelationship of those factors. It cannot be forgotten

that a prosecutor's experience will provide much unwritten guidance to any assessment of

the public interest. The factors that the Committee discusses below are simply intended to

be illustrations of matters that may affect, in varying ways, the exercise of prosecutorial

discretion. They are not, nor are they intended to be, exhaustive. Nor are the factors below

discussed in any necessary order of importance. Ultimately, the exercise of sound

prosecutorial discretion brings the prosecutor's experience to bear on all of the

circumstances of the individual case. In the words of one writer,43

There will, however, undoubtedly remain a substantial area of discretion, regulated

only by a large number of competing factors that, in their cumulative impact and
interaction, produce somewhat unpredictable, case-specific results. This seems to be
inherent in the nature of criminal justice discretion; to the extent that we seek to
achieve a variety of goals through the criminal process, while recognizing a large
number of moral and social principles, we are forced to make complex judgments
involving a large number of imprecise factors.

The Gravity of the Incident

7. The Committee recommends that, in determining whether a prosecution is in the public

interest, the agent of the Attorney General should consider the charge or charges that best reflect

the gravity of the incident.

43 R.S. Frase, "The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial
Discretion", 47 U.Chi.L.Rev. 246, at pp. 298-99. See also R.K. Daw, The "Public Interest" Criterion in the
Decision to Prosecute (1989), 53 J. Criin. L. 485, at p. 500:

What is certain is that an examination of where the public interest lies in a given
case is frequently a complex and difficult process and cannot be seen as a precise
science.
 -79-

The Committee agrees with the following statement from the English Code for Crown

Prosecutors that captures the essential relationship between the gravity of the incident and

the public interest.44

The factors which can properly lead to a decision not to prosecute will vary
from case to case, but broadly speaking, the graver the offence, the less
likelihood there will be that the public interest will allow of a disposal less
than prosecution, for example, a caution.

While some criminal offences, such as murder, are clearly very serious regardless of

the circumstances of their commission, many other criminal offences can range in

seriousness from the most minor or technical to the most grave. This fact is reflected in

part in the relative scarcity of minimum penalties in our criminal law, and the wide

availability of conditional and absolute discharges, pursuant to s. 736 of the Criminal Code.

However, even the broad range of available penalties for most offences does not, in the

Committee's view, capture entirely the variation in gravity of the incidents that may lead to

a criminal charge being considered. It is entirely possible that an incident may be so minor

that, notwithstanding that an offence is made out on the evidence, and the evidence provides

a reasonable prospect of conviction, a criminal prosecution is not warranted. Traditionally,

the gravity of the incident has been a factor considered by police officers in exercising their

discretion to charge. However, that is no reason to assume that it need not also be

considered by Crown counsel in determining whether a prosecution is in the public interest.

In addition, care must be taken in assessing the gravity of the incident to properly

understand the nature of the incident in all of its relevant dimensions. For example, the

theft of a small amount of money, might be seen as less serious if it were the impetuous act

of an immature youth than if it were the calculated act of a trusted bookkeeper, or someone

else in a position of trust. Likewise, a sexual offence, or an offence of violence, may be seen

as more serious if the victim is particularly vulnerable by reason of, for example, youth, or

44
Crown Prosecution Service Annual Report 1991-92, at p. 49.
 -80 -

physical or mental handicap. Ultimately, assessing the gravity of the incident is a matter of

ascertaining the inherent nature of the act in question, or the degree of malevolence that

it manifests, and the seriousness of the consequences.

Having assessed the gravity of the incident in this way, the charge or charges laid

must be consistent with such a view of the case. For example, a culpable homicide with no

evidence capable of establishing the requisite mens rea for murder, ought not to be charged

as murder. Likewise, if the evidence clearly supports a murder charge, it would be

inappropriate to charge simply manslaughter.

Care must also be taken to ensure that there are not more charges laid than are

necessary. Multiple charges are appropriate in some circumstances. However, charges

cannot be "inflated or duplicated for the purpose of maximizing leverage in plea

negotiations."45 The role of Crown counsel in ensuring that there are neither too many nor

too few charges laid is discussed further, below.

8. The Committee recommends that, in determining whether a prosecution is in the public

interest, the agent of the Attorney General should not consider any political consequences for

the government flowing from the prosecution.

Political Consequences

It is a clear and inflexible principle of constitutional law that when assessing the

public interest in a given prosecution, the partisan political fortunes of the government of

the day, or of any particular member of the government, must play no role whatsoever. Sir

45 Sentencing Reform: A Canadian Approach - Report of the Canadian Sentencing Commission (1988), at p.
418. See generally the discussion at pp. 418-420.
 -81-

Hartley Shawcross, then Attorney General of England, emphasized this constitutional

principle in his famous 1951 speech in the House of Commons:

[T]here is only one consideration which is altogether excluded, and that is the
repercussion of a given decision upon my personal or my party's or the
government's political fortunes; that is a consideration which never enters into
A 46
account.

This constitutional responsibility of the Attorney General, and thus of his or her

agents, is undoubtedly the position in Ontario, too: see the Ministry of the Attorney General

Act, R.S.O. 1990, c. M.17, s. 5(d). In 1969, the Honourable J.C. McRuer stated:

[The Attorney General] must of necessity occupy a different position

politically from all other Ministers of the Crown. As the Queen's Attorney
he occupies an office with judicial attributes and in that office he is
responsible to the Queen and not to the Government. He must decide when
to prosecute and when to discontinue the prosecution. In making such
decisions he is not under the jurisdiction of Cabinet nor should such decisions
be influenced by political considerations. They are decisions made by the
Queen's Attorney, not as a member of the government of the day.47

Because the Attorney General is at once the Queen's Attorney and a member of the

Cabinet, as well as typically a high profile member of a partisan political party, the danger

that the public will perceive the administration of justice to be tainted by partisan political

46 H.C. Debates, Vol. 483, col. 682, as quoted in Edwards, The Law Officers of the Crown, supra, at pp. 222-
223. The statements of Shawcross in this 1951 speech are entitled to such weight in part because, prior to
making the speech, it had been reviewed by Viscount Simon, Viscount Jowitt, Lord Kilmuir (all former Attorneys
General who had subsequently become Lord Chancellors), Sir Theobold Mathew, then Director of Public
Prosecutions, and Mr. Herbert Morrison, Lord President of the Council and Deputy Prime Minister. Viscount
Simon provided extensive comment, recognizing that Shawcross would be "making a classical pronouncement
which ought to stand for the future": See Edwards, The Attorney General, Politics, and the Public Interest.

47 The Hon. J.C. McRuer, Report of the Royal Commission Inquiry into Civil Rights (1969), at pp. 933-934
See also Edwards, Law Officers, supra, at p. 215; The Attorney General, supra, at pp. 222-223, 319, 360; I.G. Scott,
"The Role of the Attorney General and the Charter of Rights" (1986-87), 29 Crim. L.Q. 187, at pp. 187-192. For
discussion including a collection of various statements of this principle by Canadian Attorneys General, see the
Marshall Commission, Vol. 1, at pp. 223-226.
 -82 -

considerations is both serious, and ever present.48 Maintaining public confidence in the

administration of justice therefore places a heavy responsibility upon the Attorney General,

not only to keep his or her quasi-judicial and partisan political duties strictly and

uncompromisingly separate, but also to manifestly appear to keep them separate.49

The Victim

9. The Committee recommends that, in determining whether a prosecution is in the public

interest, the agent of the Attorney General should consider the circumstances and attitude of the

victim. The attitude of the victim is not, however, decisive.

In Ontario, at present, our system of prosecuting criminal offences is, for the most

part public, rather than private. Agents of the Attorney General appear on behalf of the

Crown, not the victim, in furtherance of the important principle that a criminal prosecution

is not aimed solely at pursuing the victim's interest, but rather at promoting the public

interest.

However, it can never be overlooked that the very subject matter of a criminal

prosecution is an alleged act that has adversely affected the victim, perhaps in painful and

aq •
See, for example, K.Chasse, "The Role of the Prosecutor" in S. Oxner (ed.) Criminal Justice (1982), at p.
79.

49 The Marshall Commission made a recommendation (No. 35, Vol. 1, at pp. 230-231) that resulted in Nova
Scotia in An Act to Provide for an Independent Director of Public Prosecutions, S.N.S. 1990, c. 21. The
recommendation was in part motivated by concern over a perception of political interference in the prosecutorial
process. Likewise, in the aftermath of the Owen Inquiry in British Columbia, the Legislature enacted the Crown
Counsel Act (1991), SBC chap. 10, Index Chap. 84.5. Sections 2-6 of the Act ensure that Crown counsel are
subject to the direction of the Attorney General in the conduct of prosecutions only if such a direction is in
writing and published in the Gazette. The Hughes Commission has recommended that in Newfoundland the
Director of Public Prosecutions be given "statutory recognition that he is not, in so far as his control of the
prosecutorial function is concerned, accountable to the deputy minister or any associate deputy minister." The
Hughes Commission also recommends that the Attorney General be required to make a statement in the House
whenever he declines to follow the advice of the D.P.P. in any prosecution: Vol. 1, Recommendation 21, at pp.
442-443. Legislation in Australia, the Director of Public Prosecutions Act (1983), likewise separates not only the
investigative and prosecutorial processes, but also separates the prosecutorial process from the political arena.
 -83-

humiliating ways. And, while the identity of the perpetrator may be in issue throughout the

prosecution, the identity of the victim, and the injury suffered by him or her, is usually in

no doubt whatsoever. It is, therefore, proper to consider the circumstances and attitude of

the victim in assessing the public interest in conducting a prosecution. This, of course,

includes, in homicide cases, those close to the deceased. The English Code for Crown

Prosecutors, s. 8, states that "the interests of the victim are an important factor ... and should

be taken into account." Such considerations, however, are not decisive.50

Different victims may, depending on their unique personal circumstances and the

circumstances of the offence in issue, have varying attitudes toward the prosecution that will

affect, in different ways, the decision as to whether a prosecution is in the public interest.

For example, an attitude of forgiveness on the part of the victim in a minor property offence

may well militate against proceeding with a prosecution. By way of contrast, an attitude of

deeply felt and genuine loss by the victim as a result of an offence of the same magnitude

would not have the same effect. Further, an attitude of vindictiveness by the victim toward

the perpetrator of an offence would be a factor that is entitled to little, if any, weight in

assessing the public interest in the prosecution. It may, in some circumstances, be

appropriate for Crown counsel to resist the wishes of a vindictive victim. A victim of

domestic assault may demonstrate some reluctance to lave the prosecution proceed.

However, as the Court of Appeal for Ontario has held recently, in R. v. Bonello, (16

October, 1992, as yet unreported):

50 The victim of crime has a much more pronounced role to play in other jurisdicitons. For example in
Germany, the victim has a right to institute formal proceedings to have a prosecution go forward: H. Jescheck,
The Discretionary Powers of the Prosecuting Attorney in West Germany (1970), 18 Amer. J. of Comparative Law
508, at p. 512. One writer has argued that the victim ought to have similar rights in the Canadian criminal justice
system: See J.L. Halyk, Initial Screening and the Crown Prosecutor in Canada (1991), unpublished LL.M. thesis,
University of Toronto, at pp. 118, 161. See also W.A. Logan, "A Proposed Check on the Charging Discretion
of Wisconsin Prosecutors", [1990] Wis. Law Rev. 1695, wherein the author argues that the courts should be more
vigilant in reviewing decisions not to prosecute, to provide "crime victims a critically important avenue of redress
in the event a prosecutor unjustifiably refuses to charge."
 -84-

In cases involving domestic violence, the representations and wishes of the

victim should be treated with caution. We do not know what pressure she
might be subject to.51

It should not be overlooked that a prosecution may be important and meaningful for
a victim even if there is ultimately an acquittal. For example, in child sexual abuse cases,
or domestic assault, the arrest and charge, or prosecution itself, can be instrumental in
ending the abusive situation.52 Further, as the Supreme Court of Canada has stated, in R.
v. Keegstra (1990), 61 C.C.C. (3d) 1 at 53-54, the trial process itself is an important form of
expression that assists in furthering community values. Victims may feel that their suffering,
and the sense of powerlessness that may accompany being a victim of crime, has been
acknowledged and, to some extent, counteracted by their being a central participant in a
public process. Or, a victim may altruistically want to share his or her experience so that
others can learn from it, in hopes of preventing a recurrence. Considerations such as these
cannot justify a prosecution where there is no reasonable prospect of conviction, but they
are aspects of the victim's position that are worthy of careful consideration when assessing
the public interest in a prosecution that has met the threshold test. The Committee,
therefore, observes that victim/witness co-ordinators, and other victim support organizations,
have a very important function to fulfill in assisting victims to express these views, and in
assisting victims to understand that these views are important to the administration of
criminal justice.

Another recent example aptly illustrates the manner in which the victim's
circumstances and wishes can, in the Committee's view, be properly taken into account in
the exercise of prosecutorial discretion. In R. v. Gayme; R. v. Seaboyer (1991), 66 C.C.C.

51 See also./?, v. Greene, 17 February, 1993, unreported, wherein the Court of Appeal for Ontario stated that
"it is perhaps unfair and dangerous to give too much weight to the attitude of the victim when we are dealing
with an ongoing relationship between the victim and her assailant.... The victim is obviously in fear of the
respondent and is dependent upon him."

52 L.W. Sherman, R.A. Berk 'The Specific Deterrent Effects of Arrest for Domestic Assault" (1984), 49
American Sociology Review 262.
 -85-

(3d) 321 (S.C.C.), the accused were charged with sexual assault. The allegations against

Gayme were that he sexually assaulted a fifteen-year-old complainant at her school. Gayme

was eighteen years old at the time and had a prior acquaintance with the complainant.

However, by the time a constitutional issue that arose in that case had been litigated all the

way to the Supreme Court of Canada, several years had passed. When the case was

returned to the trial court, the complainant was married, had a family, and wished to put

the incident behind her. This was one factor that Crown counsel with carriage of the case

relied upon, properly, in the Committee's view, in withdrawing the charge in open court.

The foregoing examples demonstrate the variety of views that a victim may bring to

a prosecution, and the importance of canvassing those views, without permitting the victim

to control the prosecution.

Crown counsel should also be aware that the criminal justice process itself may be

difficult for the victim. He or she may feel intimidated by, for example, the open and public

nature of proceedings in a criminal courtroom, and by the prospect of cross-examination.

Misgivings of this sort are not abnormal, and any reluctance of a victim to have the

prosecution proceed for these reasons is not a factor weighing in favour of discontinuing it.

Rather, this type of reluctance places a very important responsibility upon the police and

Crown counsel, who can be assisted greatly by victim/witness personnel, to explain the trial

process to the victim, so that the victim understands what will occur in the courtroom, and

accordingly is prepared for it.

In the Committee's view, a victim of crime, upon whom so much may depend in the

courtroom, deserves the courtesy of a full explanation of the nature of his or her

involvement in the criminal process. However, this important task may present a number

of unique challenges due to the varying characteristics and circumstances of victims.

 -86 -

Child victims, for example, are coming before the courts in increasing numbers, and

younger child victims are being permitted to testify.53 Accordingly, efforts must be made

to assist child victims to the greatest extent possible during the criminal trial process. In this

respect, a recent Department of Justice report, entitled Is Bill C-15 Working? An Overview

of the Research on the Effects of the 1988 Child Sexual Abuse Amendments, has noted that

the relationship between police and social service personnel has changed
significantly over the last few years. In many communities, protocols have
been established to identify the role of each agency and to smooth the
handling of child sexual abuse cases. In several communities, coordinating
committees bring together representatives of organizations such as social
services, the police, the medical profession, the crown attorneys' office, and
school boards.54

One Ontario example of this comprehensive approach to the needs of child victims is the

Child Sexual Abuse Protocol issued by the Metropolitan Toronto Special Committee on Child

Abuse. The protocol is a comprehensive code of preferred practices that identify step-by-

step procedures which seek to reduce duplication, eliminate service gaps, and minimize

further trauma to child victims.

The Department of Justice Report concludes that "the research indicates that going

to court is a traumatic experience for children but one that can be somewhat alleviated by

structured court preparation services."55 Further, child victims with access to such services

"had a greater understanding of the court process and, as a result, were more comfortable

and better able to communicate their evidence."56 In the Committee's view, the results of

53 V. Schmolka, Is Bill C-15 Working? An Overview of the Research on the Effects of the 1988 Child Sexual
Abuse Amendments, Department of Justice (1992) at p. 22.

54 Ibid, at p. 85.

55 Ibid, at p. 91.

56
Ibid.
 -87-

this research demonstrate the need to develop, where necessary, and to maintain, ways of

responding sensitively to the legitimate needs of child victims.

Likewise, the special needs of victims with physical or mental handicaps must be

recognized and accommodated, not just in the process of charge screening, but throughout

the criminal justice process. In both Nova Scotia and Manitoba, there are in existence

protocols for the investigation and prosecution of cases involving persons with special

communication needs.57 Both of these protocols affirm the right of all persons to full and

equal access to the criminal justice system, regardless of any special communication needs

they might have due to age, level of literacy, or physical or mental disability. The protocols

then direct criminal justice officials to compensate for these special communication needs,

by such methods as the use of interpreters or special equipment. The protocols also set out

procedures to ensure that these persons are kept fully apprised of the case as it proceeds

through the courts, and that their needs are met to the greatest extent possible in the way

the case is handled. With respect to charge screening in particular, the protocols set out

steps designed to prevent inappropriate decisions to continue or terminate prosecutions

based on a misapprehension of the information emanating from a person with special

communication needs.

In the Committee's view, the foregoing approaches to victims, witnesses, and accused

persons with special communication needs are both commendable and necessary.

The Availability of Compensation, Restitution, or Reparation

10. The Committee recommends that, in determining whether a prosecution is in the public

interest, the agent of the Attorney General should consider the entitlement of the victim to

compensation, reparation, or restitution if a conviction is obtained.

57 Nova Scotia Department of the Attorney General and Department of the Solicitor General, Protocol for
Investigation and Prosecution of Cases Involving Persons with Special Communication Needs (1991); Manitoba
Department of Justice, Public Prosecutions, Guideline No. 2:INV:1, Investigation/Prosecution of Cases Involving
Persons with Special Communication Needs (1991).
 -88 -

The availability of compensation for a victim, or the possibility of restitution or

reparations to him or her, is, of course, one aspect of the victim's position that merits

consideration in assessing the public interest in a prosecution. Compensation or restitution

may affect the attitude of the victim toward the continuance of the prosecution. Prompt

restitution in a property offence, in conjunction with other factors such as the attitude of the

victim, may militate in favour of discontinuing a prosecution where the evidence none the

less meets the threshold test of sufficiency.

On the other hand, a conviction may enhance the victim's opportunities for

compensation, for example, by way of an appropriate order by the sentencing judge. See,

for example, R. v. Scherer (1984), 16 C.C.C. (3d) 30 (Ont. C.A.); leave to appeal to S.C.C.

refused, (1984), 16 C.C.C. (3d) 30. In Scherer, the Court of Appeal for Ontario held that,

despite the very limited means of the offender, the sentencing judge had properly imposed

a compensation order for more than two million dollars, pursuant to then s. 653(1) (now s.

725). In that case, the offender, a solicitor, was convicted of theft. Prior to compensating

the victims, the Law Society required that the victims exhaust their remedies against the

offender. The Court held, at p. 38, that "the least expensive and most expeditious way for

an applicant for compensation to satisfy this requirement is to obtain an order under s. 653."

The British Columbia Court of Appeal has held in R. v. Hoyt (1992), 17 C.R. (4th)

338 at 346, that a compensation order is properly regarded as a form of punishment. The

Court noted that such orders are, "a valuable weapon in the arsenal of the sentencing judge",

and have a relevant role to play in deterring acts of vandalism. In that case the court held

that the compensation order was properly made, and there was a reasonable expectation

that it would be satisfied. However, it must also be emphasized that the criminal law is not,

nor can it be seen as, an alternative to the various compensatory mechanisms that exist in

our society, such as civil litigation and applying to the Criminal Injuries Compensation

Board. Many criminal prosecutions, for example, many driving offences and frauds, occur

with respect to incidents that also spawn civil litigation. In these circumstances, the public

interest requires that the criminal prosecution neither be, nor be seen as, an adjunct to civil
 -89-

proceedings. It is wrong to put the liberty of an accused in jeopardy by invoking the blunt

mechanisms of the criminal law simply to further the efforts of another private individual

to acquire monetary compensation for an alleged wrong.

The Committee also observes that, pursuant to s. 141 of the Criminal Code, it may

be an offence to threaten indictable criminal proceedings unless a debt is repaid, and it may

be an offence to agree to halt indictable criminal proceedings if a debt is repaid.58 This

does not, of course, preclude Crown counsel faced with, for example, a minor property

offence, from taking into account the fact that full restitution has been promptly made or

will be made when exercising prosecutorial discretion.

The Status in Life of the Accused or Victim

11. The Committee recommends that, in determining whether a prosecution is in the public

interest, the agent of the Attorney General should not consider the status in life of either the

accused or the victim.

58 Section 141 of the Criminal Code reads as follows:

(1) Every one who asks for or obtains or agrees to receive or obtain any valuable consideration
for himself or any other person by agreeing to compound or to conceal an indictable offence
is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.

(2) No offence is committed under subsection (1) where valuable consideration is received or
obtained or is to be received or obtained under an agreement for compensation or restitution
or personal services that is

(a) entered into with the consent of the Attorney General; or

(b) made as part of a program, approved by the Attorney General, to divert
persons charged with indictable offences from criminal proceedings.

See also Panel Discussion: Ethics, Persuasion and (lie Role of the Trial Judge, 20 October, 1990,
Criminal Lawyers' Association Annual Convention and Education Programme, Edited Transcript of
Proceedings, at pp. 13-18.
 -90-

Much like partisan political considerations, the status in life of an accused or victim

must play no part in assessing the public interest in a prosecution. By "status in life," the

Committee means the social standing of an accused or victim. The Committee is of the

view that the following statement in the Legislature by former Attorney General, the

Honourable Roy McMurtry (as he then was), aptly puts forth the principle:

It would be absolutely unacceptable if a prominent person escaped being

charged under circumstances in which ordinary members of the public would
be charged. It would be equally unacceptable if a public figure were charged
under circumstances in which an ordinary citizen would not be....

... It is not, therefore, a question of whether the individual is rich or poor,

prominent or not. Rather, it is a question of whether the proceedings are
appropriate, taking into account the public interest in the fair administration
of justice.59

The Court of Appeal for Ontario has also recently confirmed that, in the context of

sentencing for sexual assault, the standing of a person in his or her community is irrelevant,

and cannot be a mitigating factor.60 It follows, therefore, that standing in the community

must also be irrelevant to the decision to institute or discontinue criminal proceedings.

Status, understood in terms of social standing, is, in the Committee's view, to be

distinguished from other more particular circumstances of the accused or victim. For

example, when considering a prosecution for the wilful promotion of hatred, it may be

important to consider whether the potential accused is a harmless, eccentric figure in the

59 Legislature of Ontario Debates, 2nd Session, 31st Parliament, 23 February, 1978, at pp. 50-52.

60 R. v. Gordon M. (1992), 11 O.R. (3d) 225 (C.A.).

 -91-

community whom no one takes seriously, or whether the potential accused is in a position

to influence others.

It is, of course, highly improper to prosecute someone just because of, for example,

their colour, or sex, or cultural background. It is equally improper to refrain from

proceeding with a prosecution where, on the evidence, there is a reasonable prospect of

conviction, on account of the colour, sex, or cultural background of the victim or

complainant, or any other witness. Racism, sexism, and other forms of discrimination have

no place in the administration of criminal justice.

Race or cultural background may, however, in some circumstances, be a factor to be

taken into account in assessing the impact of a particular sentence. Race or cultural

background may also justify admitting an offender to a particular program tailored to the

special needs of the offender, for example, placing an accused in a program involving

community service and withdrawing the charge if the accused performs the community

service. See R. v. Fireman (1971), 4 C.C.C. (2d) 82, where the Court of Appeal for Ontario

held, in the context of sentencing, that the cultural background of an individual, in that case

a native Canadian, was a proper factor to consider, along with other circumstances of the

case, in determining the impact that the criminal proceedings would have on him or her.

In the result, the Court of Appeal reduced the sentence imposed from ten years to two

years. Ultimately, applying this factor in the public interest is a matter of some considerable

sensitivity.

Characteristics such as age, mental disability, and physical disability may, in some

circumstances, be relevant to the exercise of prosecutorial discretion in the public interest.

A clear example is a young person caught shoplifting who may not, because of his or her

youth or limited experience, fully appreciate the seriousness of the transgression. It may be

that such a person is more appropriately dealt with in ways other than a criminal
 -92-

prosecution.61 Likewise, there may be no public interest in prosecuting a very elderly

person, suffering from a terminal illness, who has committed an offence. It is wrong,

however, to, in effect, supplant the careful, case-by-case exercise of discretion with fixed

policies based on age, such as arbitrary decisions that no one under or over a given age will

be prosecuted.

Public Confidence and Public Order

Since the earliest days of the criminal law,62 criminal prosecutions have been

understood as more than a method of addressing wrongs suffered by the victim of the

alleged criminal act. They have been seen as reactions by the community at large to acts

that have breached the sovereign's peace, or have interfered with the orderly life of the

community as a whole.

This sense of the criminal prosecution as a community response to a wrong felt by

the whole community not only has deep historical roots, but it continues to flourish at

present, both in form and substance.63 One writer has recently stated that the Attorney

(l1 The Young Offenders Act, R.S.C. 1985, c. Y-l as amended, particularly through the general principles set
out in s. 3, provides further criteria that may lead to different treatment of a young person based on age. The
Act specifically recognizes this eventuality when it slates, in s. 3( 1)(a) that "young persons should not in all
instances be held accountable in the same manner... as adults...."

fO
Professor Stenning, in Appearing for the Crown (1986), at pp. 6-14, notes that since the early Middle Ages,
three of the "principal institutions" of the administration of criminal justice in the Anglo-Canadian tradition have
been:

a' sovereign who laid claim to jurisdiction throughout the kingdom over
offences against his or her "peace;" a concept of the sovereign's "peace" which
was broad, and which applied not only to the sovereign's person and
household, but also to all public and most private places; [and] a system of
royal justices and courts which serviced the entire kingdom, and before which
violations of the sovereign's peace... could be prosecuted. ..

(’3 For example, many of the most serious criminal prosecutions are tried by juries composed of members
of the community whose peace it is alleged has been breached. Further, there is a presumption in our law that
cases will be tried in the locality where the criminal act is alleged to have occurred: changes of venue are the
exception rather than the rule. And third, the prominence accorded many criminal trials in our mass media
 -93-

General "institutes prosecutions on the sovereign's behalf and in his name, his concomitant

discretion to do so springing from the Royal Prerogative of Justice and its enforcement in

maintaining the King's Peace."64 Given the intimate connection between a criminal

prosecution and the well-being of the community, it is important for those exercising

prosecutorial discretion to consider the need to maintain public confidence in the

administration of justice and the effect of the incident or prosecution on public order. This

important aspect of prosecutorial discretion was emphasized in Sir Hartley Shawcross'

famous speech in the House of Commons when he stated:

The true doctrine is that it is the duty of the Attorney General, in deciding
whether or not to authorise the prosecution, to acquaint himself with all the
relevant facts, including, for instance, the effect which the prosecution,
successful or unsuccessful as the case may be, would have upon public morale
and order....65

The Committee is of the view that while the principle stated by Sir Hartley Shawcross

is an important one, the phrase "public morale" does not lend as much assistance in applying

the principle as does the phrase "the need to maintain public confidence in the

administration of justice and the effect of the incident or prosecution on public order".

12. The Committee therefore recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should consider the need to maintain public

confidence in the administration of justice, and the effect of the incident or prosecution on

public order.

attests to the extent to which the criminal act continues to be perceived as a matter of genuine interest to the
community as a whole.

w D.C. Morgan, "Controlling Prosecutorial Powers: Judicial Review, Abuse of Process and Section 7 of the
Charter" (1986), 29 Crim. L.Q. 14, at p. 19.

65 H.C. Debates, Vol. 483, cols. 683-684, January 29, 1951; as cited in Edwards, The Attorney General, supra,
at p. 319.
 -94-

The phrase "public confidence in the administration of justice and the effect of the

incident or prosecution upon public order" clearly has two parts. The first is the need to

maintain public confidence in the administration of justice. By focusing on the need to

maintain public confidence in the administration of justice, the Committee wishes to

emphasize how, in the exercise of prosecutorial discretion, the Attorney General and his or

her agents are public servants, duty bound to keep the criminal justice system in touch with,

and responsive to, the needs of the community as a whole. Prosecutorial discretion ought

to be exercised in a manner consistent with the community's desire to have a justice system

that protects them, through the apprehension and punishment of offenders, but does not

oppress them, through heavy-handed prosecution of trivial matters.

The notion of public order is somewhat different than the need to maintain public

confidence in the administration of justice. While the latter is concerned with the repute

of the justice system, the former focuses on the impact of either the incident giving rise to

the charge, or the particular decision to prosecute or not on the community itself. For

example, public order may be enhanced by a prosecution which has the effect of deterring

unlawful sexual activity in a public park, whether predatory or otherwise, of a sort that

interferes with the right of the public to enjoy the park. Another clear example of the need

to keep public order in mind when exercising prosecutorial discretion is s. 319 of the

Criminal Code, which prohibits the communication in a public place of statements inciting

hatred against an identifiable group, where such incitement is likely to lead to a breach of

the peace: see R. v. Buzzanga and Durocher (1979), 49 C.C.C. (2d) 369 (Ont. C.A.). In

short, those exercising prosecutorial discretion must be aware that some criminal offences,

either by their inherent nature, or by the circumstances of their commission, interfere with

the orderly conduct of community life much more directly, and more seriously, than others.

Therefore, if all other things are equal, the greater the interference in orderly community

life caused by the offence, the stronger the interest in prosecuting.

 -95-

National Security and International Relations

13. The Committee recommends that the agent of the Attorney’ General should take into

account national security and international relations in determining whether a prosecution is in

the public interest.

The need for those exercising prosecutorial discretion to be aware, in appropriate

cases, of the effect of a proposed prosecution on national security and international relations

is somewhat similar to the need to be aware of public order, discussed immediately above.

In both situations, there are potential consequences that may be felt beyond the principal

players in the case, namely, the accused, the victim(s), and the justice system. Therefore,

the prosecutor must look outside the four corners of the case itself. In these circumstances,

the exercise of prosecutorial discretion may well become avowedly a matter of administering

public policy, such as when the case, on its own terms, merits prosecution, but considerations

of national security or international relations militate against proceeding.

No doubt the prosecution will be rare where considerations of national security and

international relations arise. However, when they do arise, they are often of the first order

of importance. Canada has a multitude of legal obligations and commitments as a member

of a community of nations, which cannot be disregarded. Many of these legal obligations

will have a direct bearing on the exercise of prosecutorial discretion.1h(' In addition, the

conduct of international relations may give rise to situations that are not covered by a treaty

or convention, but which none the less may be a matter of sensitivity to Canada's or another

country's position in the international community. These matters of international comity,

66 See, for example, the Agreement for the Suppression of (he Circulation of Obscene Publications and
International Convention for the Suppression of the Circulation and Traffic in Obscene Publications, referred to
in R. v. Butler (1992), 70 C.C.C. (3d) 129 at 160 (S.C.C.); the International Convention on the Elimination of All
Forms of Racial Discrimination, 1970 Can. T.S. No. 28, in force 1969, referred to in R. v. Keegstra (1990). 61
C.C.C. (3d) 1 at 39-41 (S.C.C.); and the Convention Against Torture and Other Cruel, Inhuman, or Degrading
Treatment or Punishment, Can. T.S. 1987 No. 36, in force for Canada 24 July, 1987, as implemented by s. 269.1
of the Criminal Code.
 -96-

even though they fall short of legal obligations, may well figure in the decision to prosecute.

Healthy diplomatic relations are a valuable asset to Canada, and, as such, ought not to be

unnecessarily jeopardized by the ill-considered exercise of prosecutorial discretion.

In so far as national security is concerned, the following statement from the English

Attorney General's Guidelines, [1982] 74 Cr. App. R. 302 at 305, is apposite:

If, either before or during trial it becomes apparent that there is a clear duty
to disclose some ... material but it is so sensitive that it would not be in the
public interest to do so, it will probably be necessary to offer no, or no
further, evidence.

Alternatives to Prosecution

14. The Committee recommends that, in determining whether a prosecution is in the public

interest, the agent of the Attorney General should consider the availability’ and efficacy> of

alternatives to prosecution.

As stated above, the Committee's view is that the criminal law is a blunt instrument

of social policy that ought to be used with restraint. The criminal law aims to achieve

rehabilitation, specific deterrence, general deterrence, and the protection of society.

However, there is no reason to think that the criminal law is the only method of achieving

these socially desirable goals. Accordingly, it is clearly in the public interest to consider the

existing alternatives to any given prosecution, and their efficacy, remembering that these

alternatives may be able to deal more sensitively and comprehensively with the particular

problem at hand, while at the same time meeting the goals of the criminal justice system.

There is evidence that the use of alternatives to prosecution has greatly affected the

exercise of prosecutorial discretion in recent years. See, for example, J. Tombs and S.

Moody, "Alternatives to Prosecution: The Public Interest Redefined", [1993] Crim. L.R. 356,
 -97-

wherein the authors study prosecutorial practices in Scotland and conclude, at p. 367, as

follows.

The change over the last decade or so from a non prosecution rate of 8 per
cent, at the time of our original study to one of 47 per cent in 1991 is
indicative of much wider changes in the administration of justice. Procurator
fiscals are now, somewhat paradoxically, making much greater use of their
discretion not to prosecute although they operate within a more structured
context than they did 10 years ago. A wider range of formal alternatives to
prosecution is available to them in making decisions and this appears to have
had a decisive influence.... There is ... little doubt that the process of change
which has taken place over the last 10 years will continue and that this will
articulate what prosecution in the public interest means.

Alternatives to prosecution may be many, and varied in nature. At their most

informal, they can include a decision not to charge a young person caught committing a

minor offence because it is known that the family will ensure that the young person

appreciates the error of his or her ways. They may also include the most formal programs

with established criteria for admission, and structured procedures to address such issues as

restitution, compensation, victim/offender reconciliation, rehabilitation, or even alternatives

to punishment. Many options in between these two examples may be available. For

example, a mentally ill accused who has committed a relat'vely minor offence may be more

appropriately channelled into proper treatment as necessary, rather than prosecuted.

The Committee has been provided with information on proposed or operative

programs that may serve as alternatives to criminal prosecutions. These materials have been

informative, and serve to demonstrate that there has been, and continues to be, a broad

range of thought and effort directed toward designing alternatives to criminal prosecutions

that will meet the needs served by such prosecutions. The Committee does not, however,

see it as part of its mandate to evaluate alternative measures programs in existence, or those

being proposed, beyond indicating that, indeed, many are praiseworthy, and many more are

worthy of careful study on their own.

 -98-

The Committee does, however, think it necessary to set out some general concerns

it has with respect to structured alternatives to criminal prosecutions. First, the Committee

is concerned that formal alternatives to criminal prosecutions not inadvertently become

simply a method of "widening the net," or subjecting greater numbers of persons to the

criminal process or something akin to it. Alternatives to criminal prosecutions must, in the

Committee's view, be just that, alternatives. They must not be programs for those who

would otherwise not be prosecuted. Again, the fundamental goals of the criminal justice

system, namely, specific deterrence, general deterrence, rehabilitation, and protection of

society, must be kept firmly in mind, and alternatives resorted to only where those goals

need to be, and can be, advanced.

Second, the Committee is concerned that formal alternatives to prosecution be

designed, implemented, and reviewed with due consideration for their cost-effectiveness

relative to the criminal justice system they replace. In an era of limited resources, it is, in

the Committee's view, necessary to ensure that formal programs run as an alternative to

prosecution hold out some promise of reducing the overall cost to society of the

administration of criminal justice. The Committee recognizes that cost cannot be the sole,

or even necessarily the governing, indicator of an alternative program's suitability. For

example, alternatives designed to meet the needs of native Canadians, such as are in

operation in northern Ontario at present, may have advantages for the communities served

that warrant any additional expenditure required.

Subject to the two foregoing concerns, therefore, the Committee generally endorses

responsible and thoughtful efforts to devise, implement, and operate programs that achieve

the aims of the criminal justice system equally or more effectively, in alternative ways.

Indeed, the Young Offenders Act, R.S.C. 1985, c. Y-l contains a statutory declaration that

alternatives to prosecution should be considered. It is very important, however, for anyone

exercising prosecutorial discretion, to consider closely both the availability of such

alternatives, and their efficacy. The aims of the criminal justice system are simply too
 -99-

important to the community to be lightly abandoned to untested or uncertain alternative

programs.

Other Factors

15. The Committee recognizes that the factors specifically discussed above are not an

exhaustive enumeration of the considerations that may be relevant to an assessment of the

public interest in a prosecution.

In the Royal Commission on the Donald Marshall Jr., Prosecution, the Commissioners

listed certain factors which might arise for consideration in deciding whether the public

interest required a prosecution, and also listed certain factors which are to be eliminated

from consideration in determining whether the public interest required a prosecution:'1'

(b) the factors which might arise for consideration in determining whether
the public interest requires a prosecution, include:

(i) the triviality of the alleged offence or that it is of a "technical" nature

only;

(ii) the age, physical health, mental he; 1th or special infirmity of an
alleged offender or witness;

(iii) the staleness of the alleged offence;

(iv) the degree of culpability of the alleged offender (particularly in

relation to other alleged parties to the offence);

(v) the likely effect of a prosecution on public order and morale;

(vi) the obsolescence or obscurity of the law;

67
Marshall Commission, Recommendation 38, Vol. 1, at pp. 235-236.
 -100-

(vii) whether the prosecution would be perceived as counter-productive

(such as by making a "martyr" of an alleged offender or by providing
publicity to an alleged hate propagandist);

(viii) the availability or efficacy of any alternatives to prosecution in the light

of the purposes of the criminal sanction;

(ix) the prevalence of the alleged offence and any related need for
deterrence;

(x) whether the consequences of any resulting conviction would be unduly

harsh or oppressive;

(xi) any entitlement of the State or other person to compensation,

reparation or forfeiture if prosecution action is successful;

(xii) the attitude of the victim of the alleged offence to a prosecution;

(xiii) the likely length and expense of the trial;

(xiv) whether the alleged offender is willing to cooperate in the investigation

or prosecution of others, or the extent to which he or she has already
done so;

(xv) the likely outcome in the event of a finding of guilt, having regard to
the sentencing options available to the court;

(xvi) the necessity for the maintenance of public confidence in legislatures,

courts and the administration of justice;

(c) the factors which are to be excluded from consideration in determining

whether the public interest requires a prosecution, include:

(i) the alleged offender's race, religion, sex, national origin, political
associations or beliefs;

(ii) the prosecutor's personal feelings concerning the victim or the alleged
offender;

(iii) any partisan political advantage or disadvantage which might flow from
the decision to undertake or stop a prosecution; or

(iv) the possible effect on the personal or professional circumstances of

those responsible for the prosecution decision.
 -un¬
it is noteworthy that the Marshall Commission does not treat its list as a complete

enumeration of the relevant public interest factors. The Committee is in general agreement

with the Commission's non-exhaustive views as to the public interest criteria that may be

considered, subject to any inconsistencies between the list as formulated by the Commission,

and the Committee's own discussion, above. In essence, the Commission's list is as

comprehensive as any that may be found in one place, and is set out here for convenience.

There are other helpful lists of relevant public interest factors. See, for example, the

English Code for Crown Prosecutors,68 the United States Principles of Federal Prosecution,

supra, Part B, s. 3,6<; and the Australian Prosecution Policy of the Commonwealth.7(J

While the list of potentially relevant public interest factors provided by the Marshall

Commission has been reproduced above for convenience, the Committee does, however,

wish to make certain observations about that list.

First, it will be seen at once that certain public interest factors favour the criminal

process not being invoked, while certain public interest factors favour a criminal prosecution

being undertaken. It is the Committee's view, as stated above, that, absent a reasonable

prospect of conviction based on the evidence (as opposed to, for example, being based on

the likelihood of a jury convicting), no public interest, however compelling, can warrant the

68 Crown Prosecution Service Annual Report, 1991-92, at pp. 49-51. The Crown Prosecution Service's public
interest factors are discussed in further detail in Daw, supra, and in A. Ashworth, 'The "Public Interest" Element
in Prosecutions", [1987] Crim. L.R. 595. For a critical assessment of the English Crown Prosecution Service's
application of the public interest criteria, see A. Sanders, Incorporating the "Public Interest" in the Decision to
Prosecute in J.E. Hall Williams (ed.), The Role of the Prosecutor: Report of the International Criminal Justice
Seminar held at the London School of Economics and Political Science in January, 1987 (1988). See also J.A.
Osborne, The Prosecutor's Discretion to Withdraw Criminal Cases in the Lower Courts" (1983), 25 Canadian
Journal of Criminology> 55, for an empirical study of the varying factors that played a role in the decisions to
withdraw charges or discontinue prosecutions.

69 One helpful additional factor found in the LJnited States Principles of Federal Prosecution is the criminal
history of the accused person. An accused who has committed a minor offence may well be treated differently
if he or she is a first offender, than would be the case if the offence were the modus operandi of a committed
career criminal. See also the American Bar Association Standards for Criminal Justice (3rd ed. 1992), Ch. 3, 'The
Prosecution Function", Standard 3-3.9, "Discretion in the Charging Decision".

70
pp. 5-7.
 -102-

institution of criminal proceedings. Likewise, if there is a reasonable prospect of conviction,

the public interest in the due enforcement of the criminal law will in most cases, without

more, require that the matter be brought before the courts for a decision on the merits.

Some of the public interest factors set out above will arise for consideration more

frequently than others in deciding whether a criminal prosecution should be undertaken.

Among the public interest factors which will arise most frequently are:

(i) the triviality of the alleged offence or that it is of a technical nature only;

(ii) the age, physical health, mental health or special infirmity of an alleged

offender or witness;

(iii) the prevalence of the alleged offence and any related need for deterrence.

Furthermore, it seems clear that public interest factors will vary with the charge

under consideration. Included in the public interest factors is "(iii) the staleness of the

alleged offence." Staleness is entitled to little or no weight, for example, where the offence

alleged to have been committed is murder, a war crime, or any other serious offence. The

staleness of the charge may carry more weight where the offence alleged to have been

committed is a minor assault or an offence against property. Mere delay between the

alleged commission of the offence and the laying of the charge does not automatically

infringe the accused's right to a fair trial protected by ss. 7 and 11(d) of the Charter.71

The Committee is of the view that great care must be taken in relying upon the

"obsolescence or obscurity of the law" in deciding not to institute a prosecution. The

consideration of this factor must be strictly curtailed, for the reasons stated by Professor

Edwards:

71
R. v. L. (1991), 6 C.R. (4th) 1 (S.C.C.).
 -103-

Our system of criminal justice has never required that those who exercise the
responsibilities of law enforcement, of prosecuting offenders, or of sitting in
judgment upon their fellow citizens, should subscribe uncritically to the
righteousness of all parts of the criminal law. Such a utopian view of the role
of the police. Crown Attorneys and judges is neither humanly possible nor
realistic, given the subjective nature of human values. At the same time,
there is an obligation, accepted at the time of assuming office in each of these
positions, to uphold the law as enacted by Parliament and the various
provincial legislatures.72

Chief Justice Freedman made the same point forcefully in R. v. Catagcis (1977), 38 C.C.C.

(2d) 298 at 301 (Man. C.A.), when he stated:

The Crown may not, by Executive action dispense with laws. The matter is
as simple as that, and nearly three centuries of legal and constitutional history
stand as the foundation for that principle.

See also R. v. Morgentaler (1988), 37 C.C.C. (3d) 449 at 481-483 (S.C.C.) where Chief

Justice Dickson, for a unanimous Supreme Court on this point, held that it was improper

to invite a jury to acquit simply on the basis that they thought the law under which the

accused was prosecuted should not be applied.

With respect to item (xiii), the likely length and expense of the trial, the Committee

notes that Crown counsel cannot refrain from fulfilling his or her duty to prosecute simply

because of the cost. The administration of justice cannot be compromised by purely

monetary concerns. However, it is certainly in the public interest that limited public

resources be allocated responsibly. Therefore, a higher threshold test, such as a likelihood

of conviction, or even a substantial likelihood of conviction, may properly be applied in, for

example, complex fraud cases in which the trial will be lengthy and costly. Requiring a

higher threshold test may, however, be unwarranted in an offence of serious violence, even

if the trial promises to be lengthy.

7" J.L1.J. Edwards, "Criminal Law and its Enforcement in a Permissive Society” (1969-70), 12 Crim. L.Q. 417,
at p. 420.
 -104-

7. The Scope of the Threshold Test

The foregoing three-part test is, in the Committee's view, the standard that should

be applied to every prosecution conducted in Ontario. No prosecution that does not meet

this standard should continue. This test should, in the Committee's view, be applied

broadly, to cover, for example, indictments preferred by the Attorney General, pursuant to

s. 577 of the Criminal Code. In circumstances where a preferred indictment precludes the

holding of a preliminary inquiry where one would normally be held, or where a preferred

indictment overrides a discharge following a preliminary inquiry, it is, in the Committee's

view, particularly important that the case hold out a reasonable prospect of conviction, and

that the prosecution be in the public interest.

8. The Threshold Test and Policies, Directives, and Guidelines in Genera!

There can be little doubt that the prosecutorial discretion necessarily vested in the

Attorney General and his or her agents is extremely important, and quite broad. One

American commentator has stated that "[t]he prosecutor has more control over life, liberty

and reputation than any other person in America. His discretion is tremendous."73

Furthermore, as another commentator has noted, "[t]he fate of most of those accused of

crime is determined by prosecutors, but typically this takes place out of public view - in

hallways of the courthouse, in the prosecutors' offices, or on the telephone."74 On the

other hand, the Supreme Court of Canada has recognized that "[t]his broad discretion rests

largely on the recognition that the decision to prosecute is particularly ill-suited to judicial

73 R.H. Jackson, 'The Federal Prosecutor", 24 J. Am. Jud. Soc'y 18 (1940).

74 J. Vorenberg, "Decent Restraint of Prosecutorial Discretion" (1981), 94 Har\\ L. Rev. 1521, at p. 1522.
 -105-

review."75 Such review of prosecutorial discretion as can properly occur through the courts

is limited to only the "clearest of cases" that make out an abuse of process.76

In light of the importance of prosecutorial discretion, the fact that it is ill-suited to

careful review by the courts, and the fact that it is typically exercised out of the public eye,

the Committee is of the view that the threshold test and the consideration of the public

interest which guides the exercise of prosecutorial discretion should be made known to the

public. This is consistent with the recommendations of other bodies that have studied this

issue in Canada,77 and with the practice in other jurisdictions.78

The Committee does not reach the conclusion that published guidelines are necessary

on the basis of past abuse of prosecutorial discretion in Ontario. On the contrary, one

significant theme in the submissions received by the Committee, including the submissions

of defence counsel, is that Crown counsel ought to have more, not less, discretion to conduct

individual cases as they see fit. Thus, there appears to be, for the most part, a high level

of satisfaction with the manner in which Crown counsel exercise prosecutorial discretion in

the public interest. However, it is, in the Committee's view, important that the public, and

novice Crown counsel,79 be informed, (a) that prosecutions are not undertaken without

responsible consideration being given to their desirability, and (b) how, in general terms, the

decision to prosecute or not prosecute is arrived at. While the Attorney General is already

75 R. v. V.T., supra, at 41, quoting with approval from Powell J. in Wayle v. United States, 470 U.S. 598, 607-
608 (1985).

76 R. v. V.T., supra, at 41-42; R. v. Durette, supra.

77 See, for example, the Marshall Commission, Vol.l, Recommendation 38, at pp. 236-237; The Law Reform
Commission of Canada, Working Paper No. 62, supra. Recommendation 22, at p. 79; J.LL.J. Edwards, 'The
Charter, Government, and the Machinery of Justice" (1987), 36 U.N.B.L.J. 41, at pp. 41-57.

78 See generally, Edwards, The Attorney General, supra, at pp. 431-434; the English Code for Crown
Prosecutors, supra; A. Ashworth, 'The "Public Interest" Element in Prosecutions", (1987] Crim. L.R. 595, at p. 605,
commenting on the need for accountability, and Vorenberg, "Decent Restraint of Prosecutorial Power", supra.

79 R.S. Frase, The Decision to File Federal Criminal Charges: A Quantitative Study of Prosecutorial
Discretion" (1980), 47 U. Chi. L. Rev. 246, at p. 296.
 -106 -

accountable to the Legislature, and through the Legislature to the public, for the exercise

of prosecutorial discretion by his or her agents,8" the Committee is of the view that

publishing guidelines can have an important role to play in educating the public about how

such important decisions are made. The Committee, therefore, recommends publishing

guidelines for their educational value, and their role in ensuring that prosecutorial discretion

continues to be exercised responsibly.

16. The Committee recommends that guidelines regarding the threshold test and what factors

are included in the term ''public interest” should be published by the Attorney General.

Having decided that such matters as the threshold test and the consideration of the

public interest that guides the exercise of prosecutorial discretion should be made public,

it is, in the Committee's view, important to clarify the form in which these publications by

the Attorney General, and, indeed, others, relating to the administration of criminal justice,

should take.

It is recognized that the Attorney General has the right to instruct his or her agents

in the conduct of prosecutions. Furthermore, it will inevitably, on some occasions, be

necessary or desirable that the Attorney General issue some directions, because the

Attorney General is the person ultimately responsible for safeguarding the public interest

in the administration of criminal justice, and is the person answerable to the public, through

the Legislature, for the exercise of prosecutorial discretion by his or her agents. Instructions

from the Attorney General may signal the need for new direction in the administration of

justice, and, as such, may be responsive to changing community needs, educational and

or k
In Law Officers, supra. Professor Edwards writes, at p. 225:

Though less clearly defined in the general statements of constitutional doctrine made
from time to time by Prime Ministers and Attorneys General, it is my belief that the
principle of accountability to Parliament is on no less importance than the principle of
independence now recognised as operating before the institution and during the
continuance of a criminal prosecution.
 -107-

corrective, enhancing both the fairness of the criminal justice system and its repute in the

community. However, as stated above, it was the clear preference of those making

submissions to the Committee, collectively representing hundreds of years of experience in

all aspects of the administration of criminal justice, that the discretion of the agent of the

Attorney General actually conducting a particular prosecution ought not to be constrained,

except where it is absolutely necessary.

Directives issued by the Attorney General to his or her agents that are binding or

mandatory in nature are not problematic in situations where the duty of the Crown or the

Court is in law already fixed. For example, ensuring that steps are taken to protect the

identity of a young person charged with a crime: Young Offenders Act, R.S.C. 1985, c.Y-1,

s. 38. But, otherwise, mandatory directives on a given topic often fail to make sufficient

allowance for the unusual or exceptional case that invariably arises, in which the generally

applicable principles are unhelpful, or even counter-productive. It is in the truly unusual

case that defence counsel may be able to perform a particularly important service for his

or her client, namely, that of approaching the Crown shortly after a charge is laid, and

explaining why, in the particular circumstances of the case, it ought not to proceed.

Mandatory directives preclude this occasionally important exchange, with the result that the

public interest in a given case may not be as fully explored as it ought to be, or that limited

resources are used up in unnecessary proceedings.

Further, it is the experience of the Committee members, and those appearing before

it, that such mandatory or binding directives as presently exist are applied in ways that vary

somewhat from region to region. Thus, the so-called "mandatory” directives do not appear

to be achieving one main objective of their mandatory character, namely, uniformity.

Differences in approach to these mandatory directives may, therefore, impose what appears

to be a hardship on an accused in one jurisdiction, in that he or she is treated differently

from an accused in similar circumstances in a different jurisdiction, merely because of the

happenstance of where the alleged offence occurs. In the Committee's view, it is preferable
 -108 -

that all accused be placed on an equal footing by granting all agents of the Attorney

General a uniform ability to exercise individual discretion in appropriate cases.

Another reason which, in the Committee's view, favours the presence of a formally

recognized discretion with respect to the application of guidelines from the Attorney

General, is that of supporting the position of Crown counsel who actually exercises the

discretion. The exercise of prosecutorial discretion is clearly recognized in our law as an

important and large part of Crown counsel's daily work. Yet, often the exercise of

prosecutorial discretion requires a very finely balanced decision in a matter of grave

importance to the community. As the Supreme Court of Canada has recognized, "Crown

Attorneys ... are subject to all the emotional and psychological pressures that are exerted

by individuals and the community."81 Accordingly, formal recognition in guidelines from

the Attorney General that the exercise of discretion is appropriate ensures that Crown

counsel can exercise his or her best judgment in difficult cases without fear of censure from

his or her superiors. Further, the public reaction to the exercise of prosecutorial discretion

in any particularly controversial case may tend to be somewhat more responsible and

educated if it is known that the decision taken was avowedly and properly a discretionary

one.

Professors LaFave and Israel comment that, in the American context, resistance by

prosecutors to the publication of guidelines is often premised on the apprehension that such

guidelines "will inevitably result in more frequent attempts to invoke judicial review of

prosecution policy, thereby further clogging an already overburdened court system."82 The

Committee is of the view that this is clearly not a sufficient reason to avoid the important

aim of educating the public about the exercise of prosecutorial discretion. However, such

guidelines as do issue should recognize the discretionary latitude that the Supreme Court

81 R. v. Bain (1992), 69 C.C.C. (3d) 481, per Cory J. at 511 (S.C.C.).

82 LaFave and Israel, Criminal Procedure (1984), Vol. 2, s. 13.2, at p. 172, as updated.
 -109 -

has accorded the prosecutor in our law,83 so that there will be no court time wasted with
misguided applications for relief on the basis that the guidelines are comprehensive statutory
edicts that give rise to some sort of actionable breach of duty if they are not mechanically
applied in all cases.

It is sometimes argued that "if prosecutors knew that their policy would be published,
they would be reluctant to formulate it, or to change it once it was formulated."84 In the
view of the Committee, this likewise does not justify keeping from the public valuable
information about the exercise of prosecutorial discretion. For centuries, our common law
has been both publicly known, and capable of undergoing responsible change. There is no
reason to think that public guidelines on prosecutorial discretion cannot likewise develop
responsibly over time. This point does illustrate once again, however, the importance of
recognizing in any published guideline that, given the discretionary nature of much
prosecutorial decision-making, the weight of any one factor or group of factors relevant to
the public interest may change with changing conditions over time. To be accurately
educational, the guideline must responsibly reflect the realities of prosecutorial decision¬
making.

Inflexible directives from the Attorney General to his or her agents on the exercise
of prosecutorial discretion may also have the undesirable effect of facilitating the
commission of crime. For example, a public and mandatory directive from the Attorney
General to his or her agents stipulating that first offenders committing certain listed offences
will not be prosecuted runs the risk of being perceived as an open invitation to that class
of persons to commit the crimes specified. The deterrent value of the criminal law is
thereby greatly undermined. It has been argued that if, in fact, many such individuals will
invariably not be prosecuted, guidelines should acknowledge this reality, because otherwise
there is "unearned deterrence." It is said that to suggest otherwise, for example, by a

83 R. v. V.T., supra; R. v. Dinette, supra, (Ont. C.A.).

Oi
Frase, supra, at p. 297.
 -110-

guideline that presents the appearance of more flexibility than exists in practice, is to "make

a virtue of deceiving the public."hs However, this argument overlooks the fact that an

inflexible directive not to prosecute in particular circumstances may be the very thing that

increases the frequency of the commission of those offences, and, thus, makes prosecution

for the sake of deterrence necessary when it might otherwise have remained unnecessary.

Furthermore, it is difficult to see how society would be served by reducing the deterrent

effect of criminal legislation through inflexible guidelines on the basis of an argument that

the deterrence is somehow "unearned."

In addition to ensuring that the instructions issued by the Attorney General to his or

her agents clearly allow for the exercise of discretion, the Committee is of the view that

steps should be taken to ensure that these instructions are reasonably available to the public.

They may, for example, be tabled in the Legislature, or published in the Ontario Gazette.

Such publication should take place before they can be taken into account by those exercising

prosecutorial discretion. This ensures that, in general terms, the public has access to the

broad criteria that govern any exercise of prosecutorial discretion. It also prevents secret

and arbitrary' instructions being given to prosecutors.

For all of these reasons, the Committee recommends as follows:

17. The Committee recommends that directives from the Attorney General to his or her

agents should be few and far between.

18. The Attorney’ General should instmct his or her agents through the use of guidelines,

which formally permit the exercise of discretion in their application.

85
Vorenburg, "Decent Restraint of Prosecutorial Discretion", supra, at pp. 1549-1551.
 -111 -

19. Such guidelines and the rare directives which may issue should not be taken into account

by agents of the Attorney> General until they' are published or otherwise made known to the

public.

It is no doubt obvious from the foregoing that the Committee likewise rejects the

idea that the directives of the Attorney General should be legislated. Legislative directives

would have, or would be perceived as having, a more emphatic mandatory nature than

would policy guidelines emanating from the Attorney General. This is undesirable, in the

Committee's view, for the reasons expressed above. Legislation in this area of criminal

procedure has the additional disadvantage of being insufficiently responsive to the inevitably

fluctuating social circumstances that may alter the exercise of prosecutorial discretion: the

process of legislative amendment is much more complicated and lengthy than the issuance

of a policy guideline from the Attorney General, which can, if necessary, be done within

hours. Finally, legislation that purports to regulate the conduct of criminal prosecutions

before the courts may run some risk of being ultra vires the province: see the Constitution

Act, 1867, ss. 91(27) and 92(14).

As stated above, the Committee is of the view that the Attorney General should issue

a public document setting out the threshold test for commencing or continuing a

prosecution, consistent with the foregoing. This document should, of course, include a

discussion of the nature of the public interest factors that may enter into the exercise of

prosecutorial discretion. It should briefly describe how the threshold test is to be applied.

The guideline should also explain the discretionary nature of the test, making it clear that

the guideline cannot be taken as a comprehensive statutory code governing the exercise of

prosecutorial discretion. The purpose of such a document is not to restrict prosecutorial

discretion, but, rather, to confirm it, and educate the reader as to the manner in which the

discretion may be exercised.

The importance of educating the public at large about how, in general terms,

prosecutorial discretion is exercised, is particularly important because very often decisions

 -112 -

not to prosecute attract very little public attention. There is, therefore, little opportunity

for even the most interested member of the public to learn by observing over time how the

decision to prosecute or not is taken.

Furthermore, even if a case does loom large in the public eye, it is often

inappropriate to comment extensively on the decision to prosecute or not. Clearly, if the

decision is to proceed with a prosecution, extended public comment by the prosecutor may

jeopardize the accused's right to a fair trial, and may necessitate a change of venue, with

all of the delay, inconvenience, and expense that such a procedure might entail. If a

decision is taken not to prosecute, it may likewise be important that little be said in public

about how that decision was made.86 A criminal investigation may extend deeply into the

private life of the subject of the investigation, and into the private lives of utterly blameless

people close to him or her. If, for example, the reasons for not prosecuting are sensitive

ones, that lie in the private affairs of these persons, their entitlement to privacy may require

that no reasons be publicly given for the decision not to prosecute. Thus, the general

advisability of saying little in public about how particular prosecutorial decisions are made

limits the public's opportunities to learn about prosecutorial discretion by seeing it at work,

and increases the need for general information about this important exercise of

governmental power. In the Committee's view, a published guideline meets this need for

general information.

The Committee also notes that a guideline pertaining to the decision to prosecute

may be helpful to police officers. As a document issued by the Attorney General to his or

her agents, the guideline clearly is not directed at the police, and therefore places no

responsibilities on them. However, it may, none the less, be helpful to police officers, in so

far as it provides guidance as to what sorts of cases may or may not proceed to resolution

86 The Owen Report recommended that where a decision not to prosecute has been made of which the public
is not aware, nothing relating to the case should be disclosed to the public. Where the public, a victim, or other
significantly interested person is aware of the case and a decision is made not to prosecute, the public, victim,
or other significantly interested person should be given an "adequate" explanation of the decision. However, no
police reports, other sensitive documents, or legal opinions should be made public.
 -113-

in court. Further, the guideline may alert investigators to particular concerns that they may

wish to keep in mind in conducting their investigations.

Finally, the Committee observes that the foregoing discussion about guidelines and

directives generally, although set out in the context of charge screening, is equally applicable

to directives and guidelines pertaining to all other matters upon which the Committee makes

recommendations in the present Report.

B. Should There Be Charge Screening in Ontario?

As the foregoing discussion has made plain, the Committee places considerable emphasis

on the importance of the threshold test and the assessment of the public interest in

commencing or continuing a prosecution. Commensurate with the importance of the

threshold test, it is the opinion of the Committee that there should be in place in Ontario

a mechanism whereby charges are reviewed by Crown counsel at the very early stages of the

criminal process to ensure that there is sufficient evidence to warrant prosecution and that

a prosecution is in the public interest. Crown counsel are particularly well suited to conduct

this process because they will have the responsibility for presenting the case in court if it

proceeds. Further, Crown counsel, unlike an investigator, will not have formed any opinion

as to the guilt of the subject of the investigation, and, therefore, will be able to assess the

merits of the prosecution in a disinterested way.

20. The Committee recommends that there exist in Ontario a system of charge screening by

agents of the Attorney’ General.

The Committee recognizes that the police, who presently lay the vast majority of

charges in Ontario, in general do so responsibly. The Committee has been advised that in

many situations, charging decisions are reviewed by the police themselves, for example by

an on-duty staff sergeant, and/or by police "court bureau" officers. However, even accepting
 -114-

the generally satisfactory manner in which the police discretion to lay charges is exercised,

the reasons for such a review procedure by Crown counsel are several. Most of these

reasons are discussed in detail in Chapter I of this Report, under the heading 'The

Importance of the Early Stages of the Criminal Process," and need only be briefly referred

to here.

First, in the Committee's view, criminal charges ought to be reviewed very early by

experienced Crown counsel, because of the importance of the criminal law to the

community. A decision to instigate criminal proceedings is a decision that should not be

taken lightly, and should not be taken without care and attention to what sort of criminal

proceedings should be instituted, that is to say, what charges should proceed to court.

Second, there should be charge screening or review by Crown counsel, because the criminal

law is a blunt instrument of social policy, and attention ought to be given very early on to

alternative, perhaps more sensitive, methods of dealing with the issue at hand. Third, as

discussed above, the criminal trial process is a costly one, both for society and for an

accused. Therefore, early review by Crown counsel is warranted to ensure that limited

resources are being used wisely.

Fourth, the funnel analogy makes it clear that the criminal process has its broadest

impact at the earliest stages, where charges are first laid. Charge review or screening by

Crown counsel is, therefore, appropriate to ensure that this inevitably broad impact is

responsibly broad, neither more so nor less so than necessary. Fifth, there is in Ontario a

very high rate of guilty pleas, quite early in the course of proceedings. Charge screening or

review by Crown counsel is, therefore, necessary to ensure that the charges, which may

ultimately end up being admitted, responsibly represent all of the circumstances of the

criminal act and the criminal actor. Given the significant likelihood of an early plea of

guilty, it is desirable for Crown counsel to review the charges as soon as is practicable to

ensure that those proceeded with do not overstate or understate the seriousness of the

incident. The Committee sees early charge review by Crown counsel, in their capacity as

ministers of justice, as an important method of ensuring victims and the public at large that
 -115-

guilty pleas are entered only to charges that are properly brought and represent the public

interest in the particular prosecution.

Early charge review by Crown counsel can likewise have a beneficial effect on the

efficiency of the administration of criminal justice as a whole. Early screening will, in the

Committee's view, help to ensure that those charges which are unnecessary will not clog up

the courts. Past experience supports this conclusion.8' Extensive empirical work has been

done in the United States on early charge screening and its impact on the outcome of cases,

which likewise appears to support these conclusions.88

In addition to the foregoing reasons in support of an early review of charges laid, the

Committee is of the view that there is another important reason, of a different sort, that

requires such early review to be conducted by Crown counsel in particular. That reason is

the nature of the legal and practical relationship between Crown counsel and the police.

87 As discussed in Chapter I, the statistics from the Ministry of the Attorney General's ICON data base for
the Ontario Court (Provincial Division) for 1992 indicate that of the 574,880 charges laid, 238,799 were
withdrawn. However, of the 286,160 remaining charges for which a nlea was entered (some charges being
disposed of without a plea, for example by transfer to another province,, the plea was guilty 81 per cent of the
time. It appears, therefore, that informal screening is to a considerable extent already occurring, perhaps as part
of the process of resolution discussions. It further appears that such informal screening rids the system of many
unnecessary charges, and facilitates pleas of guilty to the charges that remain, thereby reducing demands on court
resources. Such a reading of the statistics is consistent with the submissions made to the Committee.

88 See, for example, the discussion of the American studies on point in J. Vennard, "Decisions to Prosecute:
Screening Policies and Practices in the United States", [ 1985] Crim. L. Rev. 20, wherein the author concludes at
pp. 27 and 28 that:

Studies of the American prosecutorial system strongly suggest that closer

scrutiny of cases by the prosecutor in the initial post-arrest stage enhances the
chances that the requisite evidence will be produced, or that cases which
would eventually end in dismissal are screened out of the system at the
earliest possible stage.

And:

... more accurate charging and less plea bargaining means that in general,
cases are disposed of more expeditiously....
 -116 -

As discussed above, the police and Crown counsel are mutually independent. The

Committee is of the view that the independence of the Attorney General, and thus his or

her agents, in deciding whether a prosecution is in the public interest and, therefore, should

proceed, must be accorded due recognition, because of its important role in preventing

misuse of government power, and because of the importance in ensuring that fatally flawed

prosecutions do not proceed. The Committee is further of the view that this can be

accomplished by instituting a process of early charge review by Crown counsel. It is a

matter of some importance that Crown counsel be seen to be the independent ministers of

justice, acting in the public interest, that they are.80 In the Committee's opinion, a publicly

acknowledged process of charge review by Crown counsel, can assist greatly in establishing

and maintaining greater understanding and awareness of this aspect of Crown counsel's

function.

The Committee is also of the view that early charge screening by Crown counsel is

warranted, having regard to the practicalities of the relationship between the Crown and the

police. Unlike, for example, many jurisdictions in the United States, there is in both law

and practice in Ontario a relatively clear separation of the functions of investigator and

prosecutor. Many District or United States Attorneys conduct investigations and lay

charges,00 whereas Crown counsel in Ontario do not; this is done by the police.91 On the

89 In R. v. Edmunds (1978), 45 C.C.C. (2d) 104 (Nfld. C.A.), Gushue J.A. in dissent, noted at p. 116 that the
role of the Crown prosecutor is not to obtain a conviction, but to assist the Court in eliciting the truth and he
has a duty to protect the rights of the accused as well as those of society. The professional police officer - and
this is not a criticism of police officers - is not trained in this way. His object is to secure a conviction.

90 In the United States the grand jury is a powerful investigative tool employed by both United States
Attorneys, and state District Attorneys. See La Fave and Israel Criminal Procedure (1984, as updated) Chapter
8, ss. 8.1, 8.3; The National District Attorney's Association, National Prosecution Standards, 2nd ed., 1991, states
that prosecutors have an "affirmative duty" to investigate crimes: s. 39, "Investigations", s. 41, "Subpoena Power
and Grants of Immunity" and commentaries thereon. Therefore, United States Attorneys or District Attorneys
will typically have their own investigative staff, answerable directly to them: National Prosecution Standards, supra,
s. 8.3, "Investigators", and commentary thereon. Further, the direct involvement of the District Attorney or
United States Attorney in laying criminal charges is well recognized in American law. See La Fave and Israel,
supra, Chapter 13, s. 13.1; McDonald v. Goldstein 83 N.Y.S. 2d 620, 622 (1948); aff'd 79 N.Y.S. 2d 690; Pugach
v. Klein 193 F. Supp 630, 634-635 (1961); People ex rel. Daley v. Moran, 445 N.E. 2d 270, 272 (Ill.S.Ct. 1983);
Manning v. Municipal Court of Roxbury Disl., 361 N.E. 2d 1274, 1276-77 (Mass. Sup. Jdcl. Ct. 1977); American
Bar Association Standards for Criminal Justice (2nd ed. 1980, as updated), ss. 3-3.4. For examples of the
 -117-

other hand, the police in Ontario generally do not conduct criminal prosecutions in court,

which contrasts with the way many criminal offences are prosecuted in other jurisdictions.92

The distinct nature of the functions of the police and Crown counsel naturally results

in some different, albeit equally important, considerations being brought to bear by each in

the discharge of their duties. The police, as criminal investigators, are duty bound to focus

on objectively exploring leads that will ultimately provide reasonable and probable grounds

for charging a person as the perpetrator of the criminal act in question. The emphasis, of

course, is on assembling evidence, assessing it dispassionately, and making responsible

charging decisions based on that assessment.

Crown counsel, whose duty it is to prosecute charges in court are, of course, likewise

concerned with the quality of the evidence that supports an allegation of criminal conduct.

But their concerns are also somewhat broader. As ministers of justice, their ultimate task

is to see that the public interest is served, in so far as it can be, through the use, or non-use,

of the criminal courts. And, as adversarial counsel for the prosecution, their task is to

ensure that there is not only evidence to support a charge, but evidence that will stand up

in court. Discharging these responsibilities, therefore, inevitably requires Crown counsel to

statutory duty of prosecutors to lay charges, see the Illinois Revised Statutes, c. 38, Code of Criminal Procedure,
s. Ill-3(b); United States Code Annotated, Title 18 Federal Rules of Criminal Procedure, Rule 7(c)(1), as
amended.

91 See the duties of a police officer, as enumerated in the Police Semices Act, R.S.O. 1990, c. P.15, s. 42, and
the duties of a Crown Attorney as enumerated in the Crown Attorneys Act, R.S.O. 1990, c. C.49, s. 11.

92 See, for example, R. v. Edmunds, supra, (Nfld. C.A.); R. v. Luff, 14 July, 1992, as yet unreported (Nfld.
C.A.). The Newfoundland Law Society Act, R.S.N. 1990, c. L-9 provides in s. 84 that no one other than a
member of the Society shall act as or appear as a barrister or solicitor in court. However s. 85(i) exempts from
the s. 84 prohibition an R.C.M.P. officer prosecuting any indictable or summary conviction matter that is tried
summarily. The practice in England prior to 1985 was that police conducted most prosecutions. See J.L1.J.
Edwards, The Law Officers of the Crown (1964), at pp. 336-7; The Attorney General, Politics and the Public
Interest (1984), at pp. 85-89. This situation has changed markedly since the Prosecution of Offences Act, 1985,
33 Eliz. 11, c. 23. which establishes the independent Crown Prosecution Service that conducts criminal
prosecutions. In New Zealand, the police, or other investigative agencies prosecute most offences. This practice
is under review: see the New Zealand Law Commission Preliminary Paper No. 12: The Prosecution of Offences,
November, 1990, at pp. 3-4, 10-11.
 -118-

take into account many factors, discussed above, that may not necessarily have to be

considered by even the most conscientious and responsible police officer preparing to swear

an information charging someone with a criminal offence.93 In the material placed before

the Committee, and in oral submissions, many police representatives made this point as part

of broader submissions in support of post-charge screening by Crown counsel. None of the

police representatives before the Committee opposed post-charge screening.

Finally, the Committee notes that many other jurisdictions have charge screening

mechanisms that seek to accomplish some or all of the purposes set out above. Formal pre¬

charge screening exists in British Columbia, Quebec, and New Brunswick.94 Nova Scotia

has recently completed a post-charge screening pilot project.95 In the view of the

Committee, the results of this pilot project support the desirability of charge screening.

There are also policy statements or guidelines setting out criteria for the review of charges

or potential charges by Crown counsel in Manitoba,96 Newfoundland,97 and Alberta.95

93 Sec generally, the English Report of the Royal Commission on Criminal Procedure (1981), at pp. 146-149;
the Marshall Commission Vol. I, at pp. 223-237.

British Columbia's charge approval process was initially an administrative policy of the Ministry of the
Attorney General, and is now reflected in s. 4(3) of the Crown Counsel Act (1991), SBC c. 10, R.S. c. 84.5. See
also British Columbia Ministry of the Attorney General Criminal Justice Branch Crown Counsel Policy Manual,
Memorandum No. OCA 1, File No. 55100-00, "Quality Control" - Charge Approval". Quebec's pre-charge
approval process is founded upon s. 4 of An Act Respecting Attorney General's Prosecutors, R.S.Q., c. S-35. See
also the Manuel des Directives, "Automation de la Denonciation: Role du Substitut du Procureur General", p.
9-4.1, May 30, 1986. New Brunswick's pre-charge screening process is a matter of policy adopted by the Attorney
General at the inception of a full-time public prosecutions system in 1967. See the New Brunswick Department
of Justice Public Prosecutions Operations Manual, Topic 120, "Criteria for Prosecutions."

95 Public Prosecution Service of Nova Scotial, Annual Report, 1991, at pp. 89-92; Report on the Post-Charge
Screening Pilot Project, June 10, 1992.

H< Manitoba Department of Justice Public Prosecutions Guideline No. 2:1 N: 1.2, "Staying, Withdrawing or
Forbearing to Fay Charges", 1 February, 1990.

97 Policy Statement of the Newfoundland Director of Public Prosecutions, issued 2 May, 1989.

9S In written submissions, the Alberta Attorney General informed the Committee that there is a "Special
Prosecutions Unit," with responsibility for complex corporate crime and organized crime prosecutions. All
charges handled by this unit are pre-screened. See the Attorney General's Department "Guidelines for Special
Prosecutions", 29 April, 1988. In addition, as of February, 1992, there has been a post-charge screening pilot
 -119-

In England and Wales, the Director of Public Prosecutions has, as part of his or her

duties, decision-making or advisory authority as to the initiation of prosecution for a great

variety of types of offences." The powers of the Director of Public Prosecutions have been

expanded in this respect with the creation of the Crown Prosecution Service by the

Prosecution of Offences Act 1985, 33 Eliz. II, c. 23.10(1 Pursuant to s. 10 of that Act, the

Director of Public Prosecutions has issued a "Code for Crown Prosecutors,"101 which sets

out, among other things, the threshold test for sufficiency of evidence, and discretionary

criteria to be considered in reaching a conclusion as to whether it is in the public interest

to initiate or continue a prosecution.102 It now appears that in England and Wales,

virtually all charges laid by the police are screened by Crown Prosecutors, who are

independent of the police.103 The Crown Prosecution Service regards this review or

screening function as one of its "most important tasks."104 The government in Australia has

tabled a prosecution policy document that covers issues relating to charge screening.105

In the United States, the close involvement of the prosecuting attorney with the conduct of

the investigation facilitates screening functions as the investigation continues. Further, in

1977, then Attorney General Edward H. Levi issued materials intended to be of assistance

project in operation in Calgary.

99 See generally, J.L1.J. Edwards, The Attorney General, Politics, and the Public Interest, at pp. 11-29.

100 See the Prosecution of Offences Act, 1985, c. 23, ss. 1, 3, 4, 7 and 10.

101 Published in the Crown Prosecutions Sen’icc Annual Report 1991-1992, at pp. 47-55.

10" For a discussion of the relationship between Crown Prosecutors, who are, pursuant to s. 4 of the Act,
solicitors, and the prosecuting Counsel they retain, see, Archbold, Pleading, Evidence and Practice in Criminal
Cases (1992), "The Farquharson Committee Report", ss. 4.73-4.76.

103 Royal Commission on Criminal Justice (U.K.), "Submission of Evidence By the Crown Prosecution
Service", Vol. I, at pp. 48-49.

m [bid, at p. 49.

105 Edwards, supra, note 9, at pp. 406, 432. See also the Marshall Commission, Vol. 6, at pp. 144-147.
 -120 -

to prosecutors in deciding whether to initiate a prosecution.I(,(’ These materials were

substantially expanded and, under Attorney General Benjamin Civiletti, published as

Principles of Federal Prosecution (United States Department of Justice, 1980). The Principles

of Federal Prosecution now form Title 9.27 of the United States Attorney's Manual. Both the

American Bar Association, in its Standards for Criminal Justice,101 and the National District

Attorneys' Association, in its National Prosecution Standards,108 endorse charge screening,

and set out criteria to guide the prosecutor in conducting such screening. In Scotland, the

situation is somewhat similar to the United States, in that the local "procurator fiscal,"

although independent of the police, none the less has direct control over the manner and

direction of the police investigation, and makes final decisions on the charges to be laid, as

well as conducting the prosecution in court.109

The Committee, therefore, recommends, for all of the foregoing reasons, that there

be charge screening or review by Crown counsel in the early stages of the criminal process.

This recommendation is consistent with virtually all submissions on point received by the

Committee from Crown counsel, defence counsel, police, and other organizations.

C. Should Charge Screening be Pre- or Post-Charge?

In considering the issue of pre-charge versus post-charge screening, the Committee has had

the benefit of many very thorough and detailed submissions. The Committee has also

106
These materials are reproduced in their entirety in Volume 6 of the Marshall Commission Report, at pp.
142-144.

107 2nd Edition, 1980, as updated, s. 3.54.

108 2nd Edition, 1991, s. 42.1, "Screening".

im Edwards, The Attorney General, supra, at pp. 298-299; I.D. Macphail, Q.C., "Safeguards in the Scottish
Criminal Justice System", [1992] Crim. L.R. 144\ Lord MacKay of Clashfern, Q.C., 'The Relationship Between
the Police and the Prosecution" (1984), 52 Scottish Law Gazette 11. One commentator has argued that the
"County Attorney" first established in Upper Canada in 1857 was modelled on the Scottish system. See M.R.
Bloos, 'The Public Prosecutions Model in Upper Canada" (1989), 32 C.L.Q. 69; S.U.C. Cons. 22 Viet. c. 106.
 -121-

benefitted greatly from extensive information provided with respect to the systems of pre¬

charge screening currently in place in British Columbia, Quebec, and New Brunswick.

Ultimately, the Committee concludes that, in Ontario's particular circumstances, the needs

of the administration of criminal justice are best met with a system of post-charge screening.

21. The Committee recommends that there exist in Ontario a system of post-charge screening

by agents of the Attorney General.

There are, in the Committee's view, a number of considerations that may be relevant

to whether screening should be conducted before or after a charge is laid.

The Committee observes that, in the opinion of Professor Edwards, the

Commonwealth's leading scholar in this area of the law, the constitutionality of pre-charge

screening is open to question.* 11" In written submissions to the Committee, Professor

Edwards reiterated an opinion he had prepared for the Commissioners of the Royal

Commission on the Marshall Prosecution:

... the Criminal Code [s. 504] preserves the historic right of "anyone who, on
reasonable and probable grounds, believes that a Derson has committed an
indictable offence may lay an information in writing and under oath before
a justice, [emphasis added]... This right extends to police officers and private
citizens alike and embodies a constitutional principle that has a long history
in both English and Canadian law. It cannot be set aside by resort to the
argument that "notwithstanding" its existence it is displaceable by virtue of the
Attorney General's co-existing right to enter a stay of proceedings.111

110 J.Ll.J. Edwards, 'The Charter, Government and the Machinery of Justice" (1987), 36 U.N.B. Law Jo. 41,
at p. 46. See also Attorney General of Quebec et al. v. Lechasseur el al., [1981] 2 S.C.R. 253.

111 The Committee observes that the importance of this principle has been affirmed by the House of Lords
in Gowiet v. Union of Post Office Workers et al., [1978] A.C. 435. Lord Wilberforce observed that the power of
the private citizen to commence criminal proceedings is "a valuable ... safeguard against inertia or partiality on
the part of authority," and that "all citizens have sufficient interest in the enforcement of the law to entitle them
to take this step." See also Viscount Dilhorne al 490; Lord Diplock at 497-498; and Lord Fraser of Tullybellon
at 520-521.
 -122 -

Both "rights" are rooted in independent constitutional principles that

can be invoked to support their viability. Neither one takes paramountcy over
the other at the time that each is exercised. Indeed, they should be viewed
as embodying the doctrine of "checks and balances" that protects society from
any abuse of power. It is only in exceptional circumstances that the right of
the police to lay an information would be invoked when faced with advice to
the contrary by the Attorney General or his agents, from the Deputy Attorney
General down to the local Crown prosecutor. But if the circumstances are
such that the advice is fundamentally wrong or is dictated by improper
considerations then, in my judgment, there is an incontestable right on the
part of the police to start the criminal process by laying an information.
Responsibility for taking this action is thereby publicly manifested. By a
similar token it is within the prerogative of the Attorney General (now
enshrined in the Criminal Code, s. 579) to terminate the criminal proceedings
initiated by the police, by formally entering a stay in open court accompanied
by a statement as to the reasons for so doing.

The Supreme Court of Canada held in Dowson v. The Queen (1984), 7 C.C.C. (3d) 527, that

the Attorney General's power to intervene and stay prosecutions cannot be exercised until

a justice of the peace has issued process, recognizing that the Attorney General's

"accountability to the Legislature would be much greater if he acted after the justice of the

peace has determined that there is cause to issue process."112

It has been said that pre-charge screening is desirable because of the efficiency, time

saving, and cost effectiveness that results when an experienced Crown counsel reviews

charges to determine that only those proceed that have a reasonable prospect of conviction,

and are otherwise in the public interest.113 The Committee is, however, in favour of early

post-charge review, which can in large measure accomplish these efficiency-oriented

objectives.

112 at 535-536.

113 See, for example, the Law Reform Commission of Canada, Working Paper No. 62, Controlling Criminal
Prosecutions: The Attorney General and the Crown Prosecutor (1990), at pp. 70-71.
 -123-

In any event, in the Committee's view, the minimal efficiency-oriented advantages

of pre-charge screening as opposed to post-charge screening do not warrant the risk of

undermining an important system of checks and balances represented by the concurrent and

independent rights of the police to lay charges, and of the Attorney General to stay charges.

The Marshall Commission likewise concluded that "we believe that the right of the police

to lay a charge ensures protection of the common law position of police independence and

acts as an essential check on the power of the Crown."114

In addition, it cannot be overlooked that the power to lay a charge is one important

way of fulfilling the police officer's duty to respond directly and effectively to a community's

needs.115 Police officers deal directly with the victims and witnesses, and are, therefore,

in most cases, best placed to assess not only whether an offence has been committed, but

also how the discretion to charge should be exercised. There is a great need for sensitivity

to the often differing needs of an alleged wrongdoer, his or her alleged victim, and the

community they both inhabit, whenever charging discretion is exercised. In the Committee's

view, this need for sensitivity to the circumstances of those affected by an alleged criminal

act requires that police officers retain their discretion to charge so that the charging decision

is based on first-hand exposure to those affected. Further, in the Committee's view,

members of the community can benefit from knowing that it is the police officers who are

114 Marshall Commission. Vol. 1, at pp. 232-235, Recommendation 37. The Commissioners were critical of
the inappropriate pressure brought to bear upon the police by officials in the Attorney General's department,
and were critical of the R.C.M.P. for putting "its working relationship with the Department of the Attorney
General ahead of its duty to uphold the law": Vol. f, at pp. 210-213. The Owen Report from British Columbia,
while concluding that pre-charge screening should be retained in that province, recognized the right of anyone
to lay a charge as "an important residual safeguard against real or apparent corruption in the administration of
criminal justice" (at p. 93, recommendation two). The Owen Report also expressed some concern about the
accountability of prosecutors under the pre-charge screening system in effect in British Columbia, and
recommended that records be kept of cases brought forward by the police but not authorized for prosecution
by Crown counsel (at pp. 101-102, recommendation four). The New Brunswick Department of Justice Public
Prosecutions Operations Manual, Topic 130, "Policy and Guidelines." s. (i) 3. reminds Crown counsel that the
police officer "has an absolute right in law to lay a charge and may actually do so."

115 There has been increased emphasis recently, on the need for police officers on duty to be more closely
linked with the communities they serve. See, for example, the concept of "Neighbourhood Policing" emphasized
in Beyond 2000: The Strategic Plan of the Metropolitan Toronto Police (1991).
 -124-

among them, rather than Crown counsel whose duties keep them in an office or in the

courtroom, who will be making the charging decisions that affect the community most

directly.

There is in Ontario a long tradition of police consultation with the Crown at the pre¬

charge stage, when criminal investigations present some difficulty. The existence of this

tradition, and the great extent to which the police presently engage in co-operative

consultation with Crown counsel in Ontario, is another important reason why, in the

Committee's view, formal pre-charge screening in Ontario is unnecessary.

22. The Committee recognizes the long-standing tradition in Ontario of police consultation

with the Crown in matters of difficult}' at the pre-charge stage of the investigation. The

Committee encourages this tradition of co-operative consultation to continue where, in the

judgment of senior police officers, consultation is warranted. Where warranted, such

consultation need not he limited to matters of evidence, but should also pertain to the various

public interest factors that may affect the course of the prosecution apart altogether from the

evidence.

By including for discussion the various public interest factors that might affect a

prosecution, the existing practice of co-operative consultation of the Crown by the police can

effectively address matters of concern to Crown counsel who might ultimately have to make

a post-charge screening decision as to the desirability of continuing with a prosecution.

Rupert Ross, an Assistant Crown Attorney in Kenora, in a very thoughtful brief, gave some

examples of where pre-charge consultation might be desirable. These examples include

charges where a statement given by the accused is essential to the case; charges where

search and seizure issues are critical;116 charges where the testimony of children or other

members of an accused's family are critical to the success of the prosecution and are likely

116 Pre-charge involvement of Crown counsel is mandatory in some circumstances. See, for example, s. 185
of the Criminal Code.
 -125-

to be problematic; and charges involving the most extreme potential for the destruction of

the reputation of the particular accused. There are also a number of offences for which the

Criminal Code requires either the federal or provincial Attorney General's consent before

proceedings can be intitiated. These include, for example, public nudity, s. 174, abduction

of a child in contravention of a custody order, s. 283, the promotion of hatred, ss. 318-320,

and bribery of a judicial officer or member of Parliament or a legislature, s. 119(2).117

The Committee has received many submissions on charge screening from police

officers, defence counsel, and Crown counsel from across the province. Although there was

some support for pre-charge screening, the great weight of the submissions favoured post¬

charge screening. The general tenor of these submissions is that, in a criminal justice system

as large and diverse as Ontario's, a formal and comprehensive mechanism of pre-charge

screening would amount to a significant interference with the operational independence of

the police. It would be cumbersome and costly to implement, and would produce little

additional benefit.

Implicit in these submissions is a recognition that, by and large, police officers,

assisted by advice from Crown counsel where appropriate, exercise their charging discretion

responsibly. The Committee has heard from those involved in police education in Ontario,

and is advised that the importance of responsible charging decisions is emphasized in

training programs. The Committee strongly recommends that this educational emphasis

continue. Some concern has been expressed to the Committee about "over charging" by the

police, but this has not led more than a small minority of those making submissions to the

11' The other offences for which consent from the federal Attorney General is required prior to instituting
proceedings are ss. 7(7) (various offences), 54 (assisting a deserter), 251(3) (operating unseaworthy vessel or
unsafe aircraft), 477.2 (offences in or on the territorial sea), and 478(3) (offences committed in other provinces)
of the Criminal Code. The other provisions for which consent from the provincial Attorney General is required
are ss. 136(3) (giving contradictory evidence), 164(7) (seizure of obscene materials), 166(3) (publication of
reports of judicial proceedings), 172(4) (corrupting children), 385(2) (fraudulent concealment of title documents),
422(3) (criminal breach of contract), and 478(3) (offences committed in other provinces).
 -126-

Committee to recommend pre-charge screening. The Committee, therefore, does not see

pre-charge screening as a practical necessity in Ontario.118

The Committee likewise accepts the submission that a formal and comprehensive

system of pre-charge screening would be costly and difficult to implement, with little return

on the effort and investment. Considerations of cost were not the determining factors in the

Committee's decision against pre-charge screening, but none the less cost cannot be

overlooked. As stated above, there are in Ontario approximately 600,000 criminal charges

disposed of each year. A significant percentage of these charges are relatively

straightforward matters, that pose little difficulty for the officer making the charging

decision. Perhaps the best example is impaired driving charges, or charges of driving with

excessive alcohol in one's blood ("over 80"). Between 1 January and 31 December, 1992,

the Ontario Court (Provincial Division) received no less than 64,724 such charges. This is

approximately 11.3 per cent of the 574,880 charges received bv that Court during the same

period.119 A properly conducted breathalyser test yields ample evidence to make out a

reasonable prospect of conviction, and the public interest in prosecuting where there is such

evidence is in no doubt.120 Therefore, a process of pre-charge screening for this large

number of impaired driving cases, and for the tens of thousands of other routine charges

that are laid in Ontario each year, would be largely perfunctory.

On the other hand, the additional person-hours required to review every one of the

600,000 charges coming before Ontario's courts prior to the charge being laid would be

considerable. In effect, another entirely new level of review would have to be designed and

implemented across the province. This contrasts markedly, in the Committee's view, from

1 1o
On the other hand, pre-charge screening has been said to lead to frustration and discouragement among
police officers when prosecutors consistently reject certain types of offences for prosecution: See the Decision
to Prosecute Inquin,' (the "Owen Report"), at pp. 21, 101-102.

119 Ministry of the Attorney General's ICON data base.

12(1 See, for example, R. v. McVeigh (1985), 22 C.C.C. (3d) 145 (Ont. C.A.).
 -127-

the potential person-hour requirements of post-charge screening, where the review of the

charges could, in many cases, be combined with, for example, a review that would already

have to be undertaken to conduct a bail hearing, or to assess what disclosure ought to be

made.

The Law Reform Commission of Canada, in its Working Paper No. 62, supra, has

endeavoured to formulate something of a middle ground, and has recommended that the

police retain their discretion to lay a charge, but be required none the less to consult with

Crown counsel where practical beforehand, inform him or her of the evidence and all of the

circumstances of the case, and receive advice on the desirability of a charge. Further, the

Law Reform Commission recommends that where pre-charge consultations are impractical

or where the police decline to follow the advice of Crown counsel, they should be required

to explain to the justice of the peace receiving the information the impracticalities that

precluded Crown consultation, or disclose that the Crown's advice was not followed. The

Committee is, however, of the view that these proposals would, in their practical operation,

undermine the important principle of police independence in laying charges as much as

would a formal process of pre-charge screening. The Commission's formal process of

seeking and providing advice would be just as costly to set up and run as would pre-charge

screening. It would be just as perfunctory in the many thousands of other cases. And, as

stated above, these proposals are not necessary in light of the strong tradition of informal

consultation that already occurs in this province.

The Committee is, therefore, of the view that in Ontario, post-charge screening is

preferable to pre-charge screening, or to any other systematic and mandatory method of pre¬

charge consultations between Crown counsel and the police.

D. The Mechanics of Post-Charge Screening

It has been emphasized above that the many very diverse communities in Ontario present

different challenges to the administration of criminal justice. Practices and procedures may
 -128-

properly vary according to local needs and circumstances, provided the criminal justice

system remains fundamentally fair, and responsive to community needs. Accordingly, the

Committee, while recommending post-charge screening across the province, does not suggest

that one monolithic system of post-charge screening is both necessary and right for every

jurisdiction. Rather, the Committee seeks in what follows, to set out some basic guidelines

that will aid those implementing post-charge screening locally in ensuring that it achieves

the goals it is meant to achieve.

1. The Timing of Post-Charge Screening

Post-charge screening will, in the Committee's view, serve the interests of justice most

effectively if it is done as early as practicable after the charge has been laid. Cases that

offer no reasonable prospect of conviction, or that are not in the public interest, should not

place the accused under a cloud and clog up the system for any longer than is necessary.

However, the Committee does not contemplate imposing a duty on the police to rush

straight from the justice of the peace who received the information to the office of the

Crown Attorney for a charge review. Rather, it is the view of the Committee that a charge

review should take place before a date is set for a preliminary hearing or trial.

23. The Committee recommends that the Attorney General's agents should be required to

conduct their post-charge review prior to setting a date for a preliminary hearing or trial.

No doubt many routine charges can be quickly and effectively screened very shortly

after they are laid, perhaps prior to the first or second court appearance. For example, the

entire file for a simple impaired driving charge, a common assault charge, or a minor theft

will often involve nothing more than a few brief witness statements or occurrence reports,

all of which are readily available. In these circumstances, the sooner the charge is screened

the better.
 -129-

However, not all cases are simple ones. Therefore, requiring that the post-charge

review be completed prior to setting a date for a preliminary hearing or a trial serves a

number of purposes. On the one hand, it ensures that an accused does not bear the expense

of litigating a case that should not proceed. Likewise, it ensures that court time is not

booked for charges that are destined to fail from the outset. On the other hand, requiring

charge review to be completed before a set date permits the Crown Attorney's office an

appropriate measure of flexibility in making their internal administrative arrangements to

accomplish charge screening. It ensures that the police have the time to put before the

Crown whatever may be pertinent to a charge review in those cases where the

documentation is not short, simple, and entirely completed upon arrest or shortly thereafter

It permits follow up communication with the investigators, where necessary, after an initial

review of the material, including any follow up inquiries or investigation that might be

warranted. Permitting such follow up in turn ensures that charge screening is more effective

because it is based on more complete information. As one senior defence counsel advised

the Committee, screening that occurs before sufficient information is available is not an

effective use of limited resources, "and would also result in a preliminary position being

taken from which deviation would be difficult."

Furthermore, since disclosure will usually be nude before election or plea, a

requirement that post-charge screening be completed before setting a preliminary hearing

or trial date permits Crown counsel to review the case for both screening and disclosure

purposes simultaneously. It is, in the Committee's view, desirable to take advantage of the

efficiencies that one early review, for all purposes, can achieve.

While post-charge screening should, in the Committee's view, be completed prior to

setting a preliminary inquiry or trial date, Crown counsel's obligation with respect to

screening does not end there. The obligation to ensure that a prosecution meets the

threshold test and is in the public interest is ongoing. As the proceedings continue, matters

may change that call into question whether there remains a reasonable prospect of

conviction, or whether it remains in the public interest to continue a prosecution. For

 -130-

example, a key witness for the prosecution whose statement supported the continuation of

the prosecution in early post-charge screening may give very different evidence at a

preliminary inquiry. An alibi may be offered that, upon investigation, is unquestionable in

its accuracy. Or, additional evidence may come to light that warrants a more serious charge.

Crown counsel must, therefore, be prepared at all times to take into account changes in the

circumstances of a prosecution that may affect the public interest in the proceedings. This

is not to say that formal reviews must be redone at various stages of the case. Rather,

Crown counsel must remain alive to the impact of new developments on the desirability of

continuing the prosecution at all, or continuing it in its present form. When conducting any

such subsequent reassessment of the prosecution as may be necessary, it is important to

keep in mind the Committee's earlier recommendation that the standard for continuing the

prosecution remains the same throughout the proceedings.

2. Information Required by the Crown for Charge Screening

It is clear that the primary purpose of post-charge screening is to ensure that the

threshold test is met, i.e. that there is a reasonable prospect of conviction, and that the

prosecution is otherwise in the public interest. It follows, therefore, that Crown counsel

conducting the review must conduct the screening process in a manner consistent with the

threshold test as stated above. First, it must be determined that there are no "insuperable"

obstacles to the prosecution: is there a prima facie case? Was the offence committed within

the territorial jurisdiction of the Court? If there is a prima facie case, and no insuperable

obstacle to the prosecution exists, is there, in addition, a reasonable prospect of conviction?

And finally, if there is a reasonable prospect of conviction, is the prosecution in the public

interest? Only after concluding that there is a reasonable prospect of conviction is it

appropriate for Crown counsel screening the case to take the various public interest factors

into account.

As stated above in the discussion of the timing of charge screening, the review of the

file for screening purposes should, for the sake of efficiency, also serve the purpose of
 -131-

assessing what should and should not be disclosed, if such an assessment by Crown counsel

is necessary. Therefore, since the primary purpose of charge screening is to apply the

threshold test, while at the same time addressing any disclosure issues that might arise, the

Committee recommends as follows:

24. The Committee recommends that the investigators should provide to Crown counsel for

the purposes of screening charges all information necessary to ascertain if the threshold test for

conducting a prosecution has been met, and all information necessary> to assess the impact of

any relevant public interest factors in the prosecution. This material will necessarily include, but

will not be limited to, that which is required for disclosure.

The issue of what should be provided to Crown counsel by investigators for purposes

of charge screening is, of course, very closely related to the issue of what should be in the

Crown brief. The Committee has considered and rejected any sort of province-wide

regulation fixing the required contents of a Crown Brief. This is consistent with the

submissions received by the Committee that those involved in the administration of criminal

justice should be subject to less discretion-restricting regulation, not more. In the

Committee's view, a regulation on brief preparation could never adequately capture all that

is necessary in every type of case, for a number of reasons.

Police forces across the province have different administrative practices and policies

that affect what type of documentation is or is not prepared in any given investigation. Each

investigation unfolds differently, thus affecting what is or is not suitable for inclusion in the

brief. The Committee has also heard that brief preparation issues are already dealt with

in some areas through meetings between Crown and police officials. These meetings have

the great advantage over a regulation, of permitting the contents of the brief to change over

time in response to changes in investigative practices, prosecutorial practices, and in

response to any number of other changes in circumstances. These brief preparation

meetings also have the advantage of permitting Crown counsel and investigators to focus on
 -132-

particular issues of difficulty, such as the brief in a wiretap case, or the brief in a drug

conspiracy.

Ultimately it is the Committee's view that the proper content of a brief is not a

matter for a written regulation. Rather, it is a matter of education, judgment, and

experience. The Committee's recommendation on what information Crown counsel should

have in order to conduct charge screening reflects this conclusion, in that it requires not a

specified list of items, but rather all the information necessary to accomplish the screening

objectives, w'hich, of course, will vary from case to case. Education of their membership by

police forces with respect to charge screening is necessary, as is ongoing communication

between Crown counsel and the police in each locality.

In most cases, the information necessary to assess the desirability of a prosecution

will exist in the police file. Thus, the screening process will simply be a matter of reviewing

the relevant witness statements, occurrence reports, alcohol influence reports, etc. In the

great bulk of cases in Ontario that are relatively straightforward, this review need not take

a long time. Post-charge screening will be most effective and efficient if Crown counsel

reviewing the matter has some experience with the type of charge reviewed, so that he or

she can readily spot potential legal or evidentiary problems, recognize potentially decisive

public interest factors, and reach an informed and wise conclusion quickly.

As the case to be screened increases in complexity, so, in the Committee's view, does

the need for experienced Crown counsel to conduct the review. Some classes of cases may

be inherently more involved, and call for the attention of Crown counsel with both

experience and expertise in the area, for example, cases involving DNA evidence, or child
 -133-

sexual assaults.121 With more complex or unusual cases, or perhaps those cases with

significant potential to resolve important issues by agreement between the parties, it may

also be appropriate to structure the review process differently, for example, by pre-assigning

the case to a particular prosecutor at a very early stage in the proceedings. A more complex

case may require some more involved discussion with the investigators to explore the

evidence or the circumstances of the offence in greater detail. Charge screening may also

lead to further investigation, which can bolster the prosecution, reveal that it ought not to

continue at all, or reveal that it ought to continue as a different charge or set of charges.

3. The Flow of Information Between Crown Counsel and the Police

As discussed above. Crown counsel as agents of the Attorney General, and the police,

are practically and legally independent of each other. This mutual independence is an

important system of "checks and balances" that protects the public. Important as this

practical and legal independence is, however, it raises the practical issue of how it can be

ensured that the information flow between Crown counsel and the police is sufficient for the

important tasks of charge screening and disclosure. The Committee has settled on the

following recommendation, understood in light of the commentary which follows it.

25. The Committee recommends that the Attorney General's agents be required to be duly

diligent in making efforts to obtain all information that relates to a case for purposes of

screening and disclosure.

1 T1
It may be, for example, that Crown counsel prosecuting in the area of child sexual assaults needs
additional knowledge, such as awareness of child development, and training in interviewing skills with young
children, in order to discharge traditional prosecutorial functions in a w'ay that meets the particular needs of this
type of case. The Hughes Commission emphasized the great need for this type of training for social workers,
police officers, Crown counsel and defence counsel. See, for example, Recommendation 23, Vol. 1, at pp. 460-
461. The Committee also notes the recent establishment of a team of Assistant Crown Attorneys in Toronto
who will concentrate on sexual assault prosecutions.
 -134-

Discharging the duty of due diligence in acquiring the information necessary to screen
a case or provide disclosure does not, in the Committee's view, require Crown counsel to
re-investigate the charge. The mutual independence of the Crown and police precludes any
such requirement. Crown counsel exercises no supervisory authority over the police. Such
a requirement would in practical terms undermine the important principle of mutual
independence by effectively obliging Crown counsel to supervise the police. This would
amount to importing the District Attorney/investigator relationship that exists in many
jurisdictions in the United States. The Committee rejects such a relationship as undesirable
in principle, impractical, expensive, and unnecessary.

Crown counsel's duty to be duly diligent in obtaining information for charge

screening must take account of the present nature of the relationship between the Crown
and the police. Accordingly, Crown counsel is, in the Committee's view, required at the
outset to review the material provided to him or her by the investigators. There is no
initial duty to go behind the contents of these materials. Crown counsel is entitled to rely
on the skill and judgment of police investigators to ensure that all relevant material is
brought forward. In the Committee's view, the identity of interest between Crown counsel
and the police, and the tradition of co-operation between the two, is sufficient to ensure
that, for the most part, this reliance is well placed. Both Crown counsel and the police are
concerned with the due enforcement of the criminal law, and both Crown counsel and the
police are duty bound to discharge their duties objectively, with integrity, and with fairness.
In addition. Crown counsel's power to discontinue criminal proceedings is perhaps the
ultimate assurance that everything necessary to properly screen a case and to provide full
disclosure is brought forward by the investigators to the satisfaction of Crown counsel.

If, however, following an initial review of the material provided to Crown counsel,
there are any apparent deficiencies in the material that call into question whether the
threshold test is met, whether a prosecution is in the public interest, or whether the material
is sufficient to enable Crown counsel to make full disclosure as required by Stinchcombe,
supra, Crown counsel has a duty to follow up with such further inquiries from the
 -135-

investigators as are necessary. Crown counsel should also give appropriate legal advice to

the police as to any difficulties with the proposed evidence, or, indeed, as to any other part

of the case where the advice of Crown counsel is desirable. Thus, Crown counsel must both

read the material provided by the investigators, and familiarize himself or herself with the

relevant law, so that he or she can discharge the duty to assess whether the materials appear

lacking, and ask such further questions as are necessary in sufficient detail to permit the

police to respond to them satisfactorily. Having made the inquiries that are necessary based

on a knowledgeable review of the materials, and having been told by the police that all that

is relevant has been provided, Crown counsel has discharged his or her duty. Any relevant

material not brought to the attention of Crown counsel following such a request is a failing

on the part of the police, rather than Crown counsel. In essence. Crown counsel is required

to review the materials carefully, rather than certify their completeness, and the

completeness of the investigation.

Ensuring that there is sufficient material to properly screen a case, and properly

provide for disclosure is, therefore, a matter of exercising reasonable care and attention in

the context of the working relationship that presently exists between the Crown and the

police. Sensitivity to this pre-existing working relationship ensures that the duty imposed

on Crown counsel is one that they are functionally capable of discharging. Further,

expressing the duty in these terms recognizes the parallel obligations, discussed in this

chapter and in Chapter III, placed upon the police to make full disclosure to Crown counsel.

The diligent discharge of their respective duties by both Crown counsel and the police is

necessary if charges are to be properly screened and accused persons accorded full

disclosure. The Committee is confident that the tradition of co-operative consultation

presently enjoyed by the Crown and the police in Ontario will quickly come to characterize

this aspect of the administration of criminal justice.

 -136-

4. Other Aspects of Post-Charge Screening

Charge screening must be aimed first and foremost at assessing the soundness of the

case at hand, in accordance with the threshold test which is discussed at length in this

chapter. It cannot be overlooked, however, that in some cases which are screened, questions

may arise that have a bearing on the application of the threshold test, or are relevant to the

public interest in the prosecution, for which there is not a ready answer in the material

before Crown counsel. In these cases, it is important that Crown counsel advise that such

further investigation as is necessary be undertaken. No decisions should be made as to

whether a prosecution should proceed or be discontinued on the basis of information which

is, to the knowledge of Crown counsel screening the charge, deficient. In some cases,

additional investigation may help to ensure that the prosecution's case does not fail

unnecessarily for want of available proof of an essential element of the offence. In other

cases, additional investigation may demonstrate that the prosecution is unsound, or not in

the public interest, and, therefore, ought not to continue. Whatever the outcome, or

anticipated or likely outcome of such additional investigation as is warranted, Crown counsel

should not hesitate to recommend it wherever it is necessary to reach a conclusion as to

whether the threshold test has been met, or whether the prosecution is ultimately in the

public interest.

As stated above in the discussion of the proper threshold test, assessing whether there

is a reasonable prospect of conviction does require some limited consideration of the

credibility of witnesses. The examples provided in that discussion, however, serve to

illustrate that, generally speaking, it is not necessary for Crown counsel to interview

witnesses for purposes of charge screening. The impression that the demeanour of any given

witness has upon Crown counsel is irrelevant to the threshold test, as demeanour and like

matters are for the trier of fact. As the proceedings continue, however, and witnesses give

evidence in, for example, a preliminary inquiry, Crown counsel's appreciation of the nature

of a prosecution, both its strengths and weaknesses, will often improve. Accordingly, it is
 -137-

incumbent upon Crown counsel to measure this improved appreciation of the case against

the threshold test, so that at all times the prosecution continues to be in the public interest.

Again, as stated above during the discussion of the threshold test, assessing whether

there is a reasonable prospect of conviction may involve considering, among other matters,

likely defences, or matters brought to the attention of Crown counsel by the defence. Since

the Committee has recommended that charge screening take place prior to setting a date

for a preliminary hearing or trial, defence counsel wishing any input into the process are

likewise obliged to turn their attention to the matter in its early stages.

The Committee has made the point, during the discussion of the various public

interest factors that may be relevant in any given prosecution, that the charge or charges laid

must always properly reflect the incidents in issue. This aspect of the public interest is of

particular concern when conducting early post-charge screening. Occasionally a charge may

not adequately reflect the seriousness of the criminal act at hand. Flaws of this type must

be rectified early, at the post-charge screening stage. The United States Principles of Federal

Prosecution state in the commentary to Part C, s. 2 that

the charges selected should fairly describe both the kind and scope of
unlawful activity; should be legally sufficient; should provide notice to the
public of the seriousness of the conduct involved; and should negate any
impression that, after committing one offense, an offender can commit others
with impunity.

Alternatively, there may be "over charging," either by laying a more serious charge

than is warranted, or by laying more charges than are warranted. First and foremost, over

charging is an irresponsible exercise of charging discretion by the police, and must be

prevented through police education. However, any over charging that does occur must, in

the Committee's view, be corrected to the greatest extent possible in the screening process.

More particularly, it is not, in the Committee's opinion, appropriate to permit excessive

charging to pass unaltered through the screening process in order to accord the Crown
 -138-

bargaining leverage in the conduct of resolution discussions. Such a practice misrepresents

the nature of the offence, and lengthens and complicates resolution discussions by requiring

additional effort and exchange to remove what is ultimately an artificial impediment to

agreement. The English Code for Crown Prosecutors, s. 12, aptly, in the Committee's view,

states the applicable principles as follows:

A multiplicity of charges imposes an unnecessary burden on the

administration of the courts as well as upon the prosecution, and often tends
to obscure the essential features of the case.... Multiplicity of charging should
never be used in order to obtain leverage for the offering of a plea of guilty.

See also R. v. Herbert (1992), 94 Cr. App. R. 230, wherein the Court of Appeal held that it

is wholly improper to charge a spouse or other close relative where such a charge is

unwarranted on the evidence, simply to use the withdrawal of that charge as a method of

securing a plea from the prime suspect.

The Committee recognizes that on many occasions, more than one charge covering

the same incident may be appropriately laid. Often, for example, it is difficult to assess with

certainty whether a particular course of criminal conduct is best characterized as a fraud or

a theft. In these circumstances, laying both charges insures that an act which is undoubtedly

criminal, does not go unpunished entirely, simply because of the legal niceties that might

lead a court to conclude that a transaction charged as a theft is in law a fraud, or vice versa.

Multiple charges may be appropriate if there are multiple victims. Likewise, it is entirely

appropriate in many circumstances to proceed to trial on an information charging both

impaired driving and "over 80," recognizing that ultimately there can be a conviction on only

one or the other.122 To take another example, it is quite proper to lay both a robbery

charge, and a charge for using a firearm in the commission of an indictable offence, because

Parliament has expressly contemplated this situation by making the penalty for the latter

122
Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524 (S.C.C.).
 -139-

offence consecutive to the penalty for the former.123 This latter example illustrates the

general principle that charging decisions should bear a responsible relationship to the

sentence that ultimately seems appropriate for the incident in issue. Consequently, the over

charging to be eradicated in the charge screening process is, generally speaking, that which

misrepresents the seriousness of the incident at hand.

Charge screening that eliminates over charging may alter the dynamic of subsequent

resolution discussions, particularly in localities where some over charging might have

historically existed to provide subject matter for plea bargaining. Following a winnowing

of the charges through screening. Crown counsel may well appear more intransigent than

in the past where over charging existed, less receptive to offers of a plea to a lesser and

included offence. This apparent intransigence, however, would in reality be adherence to

a position that was more responsibly taken from the outset, the inevitable result when the

artifice of purely tactical posturing by the Crown is eliminated. In these circumstances.

Crown counsel need not and ought not to take a plea to a lesser offence simply to appear

conciliatory, or to reach an agreement, where to do so would not be in the public interest.

Likewise, defence counsel ought not to enter into resolution discussions assuming that a

conscientiously screened case contains tactical over charging, and is in reality less serious

than the charges suggest.

The process of charge screening will fulfill one of its important functions if at the end

of the process cases which do not have a reasonable prospect of conviction, or, if they do,

are not otherwise in the public interest, are identified and withdrawn. However, these

benefits of charge screening may be largely unappreciated if there is not, as part of the

screening process, timely and effective communication with those most directly involved with

any given case, such as police investigators and victims. Commissioner Owen, in his Report,

noted some dissatisfaction with the way pre-charge screening by Crown counsel was

perceived by the police, and recommended that there be "regular and frequent liaison

123
Criminal Code s. 85(2).
 -140-

between police and Crown Counsel ... to review specific charging decisions and general

charging patterns."124 The Committee does not recommend such a formal feedback

process, but does wish to emphasize that post-charge screening must be carried out by

Crown counsel with due regard to the need to actively work at maintaining the tradition of

co-operative consultation that the police and Crown counsel in Ontario for the most part

appear at present to enjoy. This relationship can only be maintained if Crown counsel

effectively communicate both the processes and results of charge screening with the

investigating officers involved.

The Committee has recommended above that the circumstances and attitude of the

victim are appropriate considerations in assessing the public interest in any given

prosecution. Clearly, this factor necessitates communication with the victim as is necessary

to ascertain those attitudes and circumstances. However, beyond this duty to collect the

information necessary to accord appropriate weight to the victim's position, there is, in the

Committee's view, an additional need to ensure that the outcome of the screening process

is satisfactorily conveyed to the victim. As the person most directly and adversely affected

by the criminal act giving rise to the charges, the victim deserves the benefit of an

appropriate explanation of how the criminal justice system is or is not adressing the incident.

Providing adequate explanations of the process and outcome of charge screening to those

most closely affected by a prosecution is, in the Committee's view, an important way of

maintaining public understanding and, therefore, public confidence in this aspect of the

administration of criminal justice.125

1 ^4
Owen Repo/1, at p. 102, Recommendation Four.

125 See the Owen Report, at p. 110, Recommendation 8(2), requiring that victims and other "significantly
interested" persons be given an adequate explanation of any decision not to prosecute. The Hughes Commission
also recommends (Recommendation 20, Vol. 1, at p. 434) as follows:

... if because of legal issues or impediments arising from the investigation a

Crown attorney decides a prosecution should not proceed, the investigating
officer should be promptly notified of that decision and the reasons for it, and
in turn, he or she should ensure that all complainants are advised.
 -141-

5. The Personnel Implications of Post-Charge Screening

There can be little doubt that post-charge screening, as the Committee envisions it,

will inevitably require additional Crown counsel. It presently appears to the Committee that

in many jurisdictions across the province much of Crown counsel's work with any given file

is done very shortly before the scheduled proceeding, be it a preliminary inquiry or a trial.

The time spent in court by many Crown counsel is such a large proportion of the work week

that there is little time left over for advance preparation. Naturally, such a cycle of last

minute preparation to meet continually impending deadlines cannot be broken, to permit

earlier attention to cases, without the assistance of additional counsel. Further, the

Committee's recommendations for post-charge screening will inevitably require that matters

be reviewed once, early in the proceedings, and then, perhaps, again when the trial or

preliminary hearing date approaches. This increases the time spent out of court on any

given case, and therefore increases the overall need for Crown counsel.126

It is, however, the Committee's view that such increases in personnel as these

recommendations require are responsible both because they are firmly grounded in

principles of fairness, and because the increases necessary are much less than would be

required by, for example, alternatives such as pre-charge screening. In addition, the initial

increase in Crown counsel required can, in the Committee's estimation, heighten the

efficiency of the trial process. A minimum amount of attention paid to increased efficiency

at the earlier stages of the trial process raises the important prospect that much more time

will be saved in its later stages. For example, fifteen minutes of the time of one Crown

counsel, during which one case is screened early on, and weeded out because it is fatally

weak, may save many hours of judicial, administrative, police, witness, prosecutorial, and

publicly funded defence time that might otherwise have been expended carrying the case

through to an inevitable acquittal. Expanding this example across the system in Ontario,

126 For a fuller assessment of the cost implications of the Committee's recommendations generally, see
Appendix L.
 -142-

with its 600,000 charges per annum, raises, in the view of the Committee, the prospect that

the foregoing recommendations on charge screening can not only enhance the fairness of

the process, but they can markedly improve its efficiency.

 CHAPTER III: DISCLOSURE

Disclosure has been the subject of pronouncements by the courts, recommendations by Law

Reform Commissions, Commissions of Inquiry, Committees of the Bar, and guidelines and

directives issued by Attorneys General.

The importance to the administration of justice of complete disclosure can scarcely

be overstated. First, full disclosure is essential to ensure the fair trial of an accused and to

enable him or her to make full answer and defence, which rights are constitutionally

protected. Secondly, full disclosure has a beneficial influence on the administration of

justice as a whole. Complete disclosure may lead to shorter trials and waived or shorter

preliminary inquiries, it may prevent the unnecessary attendance of witnesses, and may

facilitate resolution discussions, the withdrawal of charges, and, where appropriate, pleas of

guilty.

Mr. Justice Sopinka, for the Supreme Court in the Stinchcombe case,1 after referring

to a number of studies on disclosure, said there is "compelling evidence that much time

would be saved and therefore delays reduced by reason of the increase in guilty pleas,

withdrawal of charges, and shortening or waiver of preliminary hearings."2 Somewhat

similar views were expressed recently by Lord Justice Gibson in R. v. Phillipson (1990), 91

Cr. App. R. 226 at 235:

Further, we would add, where the evidence is of great force, the proper
disclosing of it may cause the accused to plead guilty to the advantage of both
the administration of justice and the accused.

The New Zealand Law Commission has also recognized the important link between

justice and efficiency, and full disclosure. In the Commission's Report No. 14, Criminal

Procedure: Pan One, Disclosure and Committal (1990), at p. 2, the Commissioners noted that

1 Stinchcombe v. The Queen, [1991) 3 S.C.R. 326, 68 C.C.C. (3d) 1, 8 C.R. (4th) 277. All page references
which follow are to the S.C.R. text.

2 p. 334.
 -144-

justice and efficiency are both important aims of the justice system, and that both are

furthered by full disclosure as it enables the defence as well as the prosecution "to make

balanced pre-trial decisions based on adequate knowledge of the facts." The Commissioners

went on to conclude that

There is the further important advantage of increased public confidence in

verdicts of guilt where both sides have been able to make suitable preparation
and with little chance that any significant fact has been kept from the
defence.3

A. The Evolution of Disclosure in Ontario

Disclosure of the Crown's case against an accused as a distinct and mandatory requirement

of the criminal process has evolved in comparatively recent times.

Prior to the emergence of the principle of disclosure, the principal ways in which

accused persons were informed of the Crown's evidence against them consisted of the

preliminary hearing and the practice of supplying the accused with the statements or a

summary of the evidence of witnesses not called at the preliminary hearing. Individual

Crown Attorneys would also disclose the Crown's case to defence counsel. Neither of these

methods of informing the accused of the case he or she had to meet was entirely

satisfactory. The cross-examination of Crown witnesses at the preliminary hearing, the

accused not having been provided with disclosure, was likely to be exploratory in nature and,

therefore, time consuming. The practice of Crown counsel disclosing the Crown's case to

defence counsel was not uniform and depended, to some extent, on the view of the

particular Crown Attorney as to the amount of disclosure that he or she was required to

make.

In October 1981, the then Attorney General of Ontario tabled in the Legislature a

set of guidelines to Crown prosecutors respecting disclosure in criminal cases. The

3 The Commission, at p. 11 of ils Report, also cited the Canadian studies referred to by Sopinka, J. in
Stinchcombc in support of its conclusion that disclosure can increase the efficiency of the criminal justice system.
 -145-

Honourable Mr. Justice Zuber, in his 1987 Report of the Ontario Courts Inquiry, found that

the guidelines, being only guidelines, were not being uniformly followed by all Crown

counsel, and recommended that the guidelines be upgraded to a directive.4 On October

1, 1989, the previous guidelines were upgraded to a directive, which remains in force at

present.

B. The Stinchcomhe Case

The Supreme Court of Canada, in Stinchcombe v. The Queen, [1991] 3 S.C.R. 326, in a

comprehensive judgment, dealt with disclosure in indictable offences. This landmark case

made it plain that disclosure is not a privilege bestowed upon an accused through the

benevolence of Crown counsel. Rather, disclosure is the accused's constitutional right.

In Stinchcombe, the appellant, a lawyer, was convicted of thirteen charges of criminal

breach of trust. The Crown alleged that the appellant had wrongfully appropriated property

which he held in trust for individual A. The defence was that, despite the fact that the

appellant was formally a trustee of the property alleged to have been misappropriated, A

had in fact made the appellant his business partner, and the appellant was entitled to act

as he did.

L, a former secretary of the appellant, was a Crown witness at the preliminary

inquiry. She gave evidence that was apparently favourable to the appellant. After the

preliminary inquiry, but prior to the trial, L was interviewed by a police officer, and a

recorded statement was taken. Crown counsel informed defence counsel of the existence,

but not the content, of the statement. A request for disclosure was refused. Later, during

the course of the trial, L was again interviewed by a police officer. Again, defence counsel

was advised of the existence of the statement, but a request for disclosure was refused.

Crown counsel also indicated to defence counsel that he would not be calling L as a witness

because she was not worthy of credit. L refused to be interviewed by the defence.

4 Zuber Repon, supra, at pp. 232-234.

 -146-

The Supreme Court of Canada, in a unanimous judgment, allowed the appeal and

directed a new trial, at which the statements of L should be produced. The Court stated

that, in the circumstances, it must assume that non-production of the statements was an

important factor in the decision not to call L as a witness, and that the absence of this

evidence may very well have affected the outcome of the trial.

The Committee considers that the Stinchcombe case is authority for the following

propositions:

1. The fruits of the investigation which are in the possession of the Crown are not the

property of the Crown for use in securing a conviction, but, rather, are the property

of the public to ensure that justice is done.

2. The general principle is that all relevant information must be disclosed, whether or

not the Crown intends to introduce it in evidence. The Crown must disclose all

relevant information, whether it is inculpatory or exculpatory, and must produce all

information which may assist the accused. If the information is of no use, then it is

irrelevant and will be excluded by Crown counsel in the exercise of the Crown's

discretion, which is reviewable by the trial judge.

3. Apart from practical advantages, the overriding concern is that failure to disclose

impedes the ability to make full answer and defence, which is now enshrined in s. 7

of the Charter.

4. All statements obtained from persons who have provided relevant information to the

authorities should be produced even though the Crown does not propose to call

them. When statements are not in existence, other information, such as investigator's

notes, must be produced; if there are no notes, then, in addition to the name,

address, and occupation of the witness, all information in the possession of the

prosecution, relating to any relevant evidence that the person could give, should be

disclosed.
 -147-

5. Crown counsel has a discretion, reviewable by the trial judge, with respect to the

relevance of information. Although the Crown must err on the side of inclusion, it

need not produce what is clearly irrelevant.

6. Crown counsel has a discretion, reviewable by the trial judge, to delay production of

information in order to protect the identity of informers, the safety of witnesses or

persons who have supplied information to the authorities, or to protect those persons

from harassment. The Crown also has a discretion to delay disclosure in order to

complete an investigation, but delays in disclosure on this ground should be rare.

The absolute withholding of evidence relevant to the defence can only be justified,

however, on the basis of the existence of a legal privilege which excludes the

evidence from disclosure.

7. The trial judge, on a review, should be guided by the principle that information ought

not to be withheld if there is a reasonable possibility that the withholding of

information will impair the accused's right to make full answer and defence, unless

the non-disclosure is justified by the law of privilege. The trial judge, in some

circumstances, may conclude that the existing law of privilege does not constitute a

reasonable limit on the accused's right to make full answer and defence, and, thus,

require disclosure in spite of the law of privilege.

8. The denial of disclosure cannot be justified on the ground that the material disclosed

will enable the defence to tailor its evidence, for example, to conform with a prior

statement to the police. There is nothing wrong with a witness refreshing his or her

memory from a previous statement. The witness may even change his or her

evidence as a result. The cross-examiner may be deprived of a substantial advantage,

but fairness to the witness may require that a trap not be laid, by allowing the

witness to testify without the benefit of seeing contradictory writings. The principle

has been accepted that the search for truth is advanced rather than retarded by

disclosure of all relevant material.

 -148-

9. The obligation of the Crown to make disclosure where an accused is represented by

counsel is triggered by a request by or on behalf of the accused.

10. In the rare case in which the accused is unrepresented by counsel, Crown counsel

should advise the accused of his or her right to disclosure, and a plea should not be

taken unless the trial judge is satisfied that this has been done.

11. Disclosure should be made before the accused is called upon to elect the mode of

trial or to plead. These are crucial decisions which the accused must make, which

may affect his or her rights, and it will be of great assistance to know, before making

these decisions, the strengths and weaknesses of the Crown's case. Provided the

request for disclosure has been timely, it should be complied with so as to enable the

accused, before plea or election, to consider the information disclosed.

12. The Crown's obligation to disclose is a continuing one, and disclosure must be made

with respect to additional information when it is received.

13. Disputes over disclosure will arise infrequently when it is made clear that Crown

counsel is under a general duty to disclose all relevant information. The tradition

in Canada of Crown counsel in carrying out their role as ministers of justice has

generally been very high. Having regard to this fact, and to the obligation on

defence counsel as officers of the court to act responsibly, disputes with respect to

disclosure will usually be resolved without the intervention of the trial judge. But,

when they cannot be resolved by counsel, the trial judge must resolve them. At trial,

a voir dire can be a useful method of exploring and resolving outstanding disclosure

issues.

14. Defence counsel has a duty to bring any non-disclosure to the attention of the trial

judge as soon as he or she becomes aware of it.

 -149-

15. The administration of justice will also benefit from early disclosure. There is

compelling evidence that much time would be saved, and delays reduced by reason

of guilty pleas, withdrawal of charges, and the shortening or waiver of preliminary

hearings, by early disclosure.

C. The Committee's Approach to Disclosure

The Committee considers that, subject to the narrow limitations recognized by the

Stinchcombe case, fundamental fairness requires the Crown to disclose any information in

its possession or control that has a bearing on the guilt or innocence of an accused. The

Committee also realizes that non-disclosure is a potential source of injustice. In the

Stinchcombe case, Mr. Justice Sopinka said at page 336:

In the Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1:

Findings and Recommendations (1989) (the "Marshall Commission Report"),
the commissioners found that prior inconsistent statements were not disclosed
to the defence. This was an important contributing factor in the miscarriage
of justice which occurred and led the commission to state that "anything less
than complete disclosure by the Crown falls short of decency and fair play"
(Vol. 1 at p. 238).

In the case of S. (An Infant) v. Recorder of Manchester (H.L.), [1970] 2 W.L.R. 21, Lord

Morris said at page 37:

The desire of any Court must be to ensure, so far as possible, that only those
are punished who are in fact guilty. The duty of a Court to clear the innocent
must be equal or superior in importance to its duty to convict and punish the
guilty.

The lesson of Stinchcombe is that the Crown must provide full disclosure of both inculpatory

and exculpatory material, and that any exception to this principle must be justified by the

Crown. The Crown's duty to disclose applies to any relevant information uncovered by the

prosecution during the course of investigating a criminal offence.

 -150-

A police officer investigating a criminal offence is bound to act diligently and fairly,

and is bound to pursue all leads that a competent investigator would pursue, including leads

that seem likely to uncover relevant information favourable to the person being

investigated.5 Subsequently, full disclosure requires that everything uncovered during that

investigation be made available to the defence, unless it is clearly irrelevant, or otherwise

properly withheld pursuant to the principles enunciated in Stinchcombe, supra. It may also,

on occasion, be both prudent and responsible for police officers to conduct further inquiries

based upon information provided to them by the defence. One example might be

information from the defence in relation to an alibi. However, for the most part, police

officers who have carefully and impartially investigated a crime, and formed a belief in the

guilt of the accused on reasonable and probable grounds, cannot be expected to then launch

a parallel investigation, at the request of the defence, in order to clear the same accused.

It would not be sensible to expect the police to conduct such an investigation. In the

Committee's view, full disclosure, as required by Stinchcombe, supra, has brought about no

change in this traditional understanding of the role of the police. It has not required the

police to become defence investigators.

D. General Recommendations With Respect to Disclosure

1. Disclosure Recommendations Pertaining to Investigations

2d The Committee recommends that the Attorney’ General request that the Solicitor General

issue a statement to all police officers emphasizing the importance of taking careful, accurate,

and contemporaneous notes during their investigations. (The statement should emphasize that

disclosure requirements after Stinchcombe cannot be thwarted by making less accurate or less

comprehensive notes.)

27. The Committee recommends that, upon request, copies of relevant original notes should

be disclosed, subject to editing or non-disclosure where the public interest requires it, including,

5 The American Bar Association Standards for Criminal Justice (3rd. ed. 1992), provide in Standard 3-3.11(c)
that, "a prosecutor should not intentionally avoid pursuit of evidence because he or she believes it will damage
the prosecution's case or aid the accused." As to the discretion of the police to otherwise conduct investigations
as they think fit, see R. v. Irwin, 2 December, 1992, unreported (B.C.S.C.).
 -151-

where necessary, to protect confidential informants, the existence of ongoing investigations, and

the integrity’ of police investigative techniques.

The Committee has received much information on the issue of proper note-taking by

criminal investigators. The importance of proper note-taking, or otherwise recording the

course of an investigation, can scarcely be overstated. A proper record of the investigation

as it unfolds facilitates the development of a theory of the case by the investigator in charge,

which permits subsequent investigative steps to be taken with greater certainty and effect.

Another essential reason for carefully recording the course of a criminal investigation

lies in the fact that the case must subsequently be presented in court, and meticulously

analyzed by both the prosecution and the defence to ascertain whether it meets the legal

standards that must be met before a conviction can result. Information must be recorded

precisely enough to permit the presentation of that which is admissible as evidence in court,

often many months after it is assembled, clearly and comprehensively. Even the strongest

case on the facts may well founder in court if the information uncovered during an

investigation has not been accurately recorded. Thus, the duty to make careful notes

pertaining to an investigation is an important part of the investigator's broader duty to

ensure that those who commit crimes are held accountable for them.

The Committee has been informed that, in Ontario, police cadets receive thorough

training on proper note-taking procedures. Further, police departments across the province

have standing orders on proper note-taking techniques. None the less, the Committee has

concluded that, in light of its other disclosure recommendations, it is important to reiterate

the importance of accurate note-taking.

The Committee has also concluded that, generally speaking, fairness requires the

disclosure of police notes. Societal attitudes have changed over time in that public servants,

in discharging their duties, are now open to a greater degree of scrutiny. The Committee

considers that its recommendation is in keeping with this change. In the Committee's view,

an investigator's notes fall well within the compass of what must be disclosed, pursuant to
 -152-

the Supreme Court of Canada's decision in Stinchcombe, supra. Accordingly, after

Stinchcombe, the disclosure of police notes has ceased to be controversial. Some concern

has been expressed to the Committee about civil liability by the police for disclosure of

material contained in the notebooks. In the view of the Committee, the fact that such

disclosure is in compliance with Charter standards, as enunciated by the Supreme Court of

Canada, answers these concerns.

The notes of an investigator are often the most immediate source of the evidence

relevant to the commission of a crime. The notes may be closest to what the witness

actually saw or experienced. As the earliest record created, they may be the most accurate.

Thus, they may be the most important material in the investigative file for both the

prosecution and the defence. Subsequent summaries of the notes, despite their being

prepared in good faith and conscientiously, may not contain the same emphasis or wording,

and may not convey other shades of meaning that might be found in the original notes.

For some considerable time, it has been the usual course of procedure at trials that,

when an investigator is testifying, and has refreshed his or her memory from notes taken

during an investigation, defence counsel may be permitted to review those notes. In this

sense, an investigator's notes have long been subject to disclosure. However, this practice,

while salutary as far as it went, inevitably occasioned some inconveniences. The courtroom

proceedings would come to a standstill while defence counsel reviewed the notes. And, if

the notes revealed any relevant matter that required further inquiry by defence counsel, an

adjournment may have resulted. These potential inconveniences are eliminated by the

Committee's recommendation that notes be subject to early disclosure along with other

disclosure material.

The Committee wishes to emphasize that the fact that notes are now subject to

disclosure does not and cannot alter the importance of careful note-taking. Both the

Committee's recommendations on disclosure and the Stinchcombe decision provide sufficient

scope for withholding or delaying the disclosure of notes where the information contained

therein is irrelevant, or where certain public interests are engaged. These are important
 -153-

exceptions to disclosure that accommodate, to the greatest extent possible, the concerns of

victims, other persons whose safety and security may be in danger, and police investigations.

Reference should be made to the discussions of these exceptions that follow. However,

short of these exceptions to disclosure, the Supreme Court has mandated that nothing

relevant that is discovered during the course of the investigation is to be withheld. This

important principle of fairness cannot be undermined by putting less in a notebook than

would properly be entered were it not subject to disclosure.

The taking of less than comprehensive notes does more than improperly undermine

an accused's constitutional rights. As noted above, one of the values of careful note-taking

lies in the important contributions that the practice can make to investigating criminal

offences effectively, and in ensuring that those who have committed crimes are properly

convicted. Therefore, inadequate note-taking, while it can hamper the conduct of the

defence, also risks hampering an investigation and/or a prosecution. In short, inadequate

note-taking does a disservice to both an accused and the community, who is entitled to

expect that innocent people will be acquitted and guilty people properly convicted.

28. The Committee recommends that statements of suspects or accused persons taken at the

police station or wherever detained be video taped or audio taped, preferably video taped. It

is recognized that this may not always be practical or technically feasible.

The present recommendation bears important similarities to the preceding

recommendation concerning the importance of taking full and accurate notes. An audio

recording of a statement, of course, captures the statement verbatim, which even the most

conscientious note-taker may not be able to accomplish. A recording also captures the

questions asked, and the manner in which they were asked. A video taped statement

likewise captures the words spoken verbatim, and also reveals many of the non-verbal forms

of communication that manifest themselves in a suspect's or an accused person's

demeanour. The demeanour of a witness in a courtroom has long been regarded as vitally

important to the trier of fact, who must decide what weight to accord to the witness'

testimony. Demeanour and bearing at the time of a statement being taken, which may be
 -154-

very shortly after the occurrence of the crime being investigated, may be of particular

importance.

Video technology has become widely available, easy to use, and relatively inexpensive

in recent years.6 Indeed, many police departments already make use of video cameras in

their criminal investigations. A Canada-wide survey of police departments' use of video

recording equipment has been recently conducted.7 Thirty-one forces across the country,

with a total force strength of 50,124 officers, were surveyed.8 The survey revealed that

approximately 65 per cent of the forces video taped interviews with suspects, and 77 per cent

video taped witness interviews.9 Another 13 per cent of the forces surveyed were either

studying or in the process of implementing video taping. It appears that the use of video

recording is increasing over time.10 Thus, the practice appears to be well accepted by

criminal investigators.11 For example, as one Metropolitan Toronto Police Officer is

quoted as stating in an English study of video taping:12

6 Sec J. Baldwin, Video Taping Police Interviews With Suspects, Police Research Series: Paper No. 1, Home
Office Police Department (1992), wherein the author concludes on the basis of his research that routinely video
taping police interviews nation wide in England is feasible (at p. 7).

7 This survey was prepared and filed in December, 1992 with the Supreme Court of Canada at the request
of the Chief Justice of Canada, for consideration in the case of R. v. K.G.B. (S.C.C. No. 22314). See the
Appellant's Supplementary Case on Appeal, Summary, and Vols. 1 and II.

8 Those surveyed were the police forces of: Barrie, Calgary, Charlottetown, Durham Region, Edmonton,
Fredericton, Halifax, Halton Region, Hamilton-Wentworth Region, Kingston, London, Montreal, Niagara Region,
North Bay, Ottawa, Peel Region, Regina, Saskatoon, Sudbury Region, Thunder Bay, Toronto, Vancouver,
Victoria, Waterloo Region, Windsor, Winnipeg, and York Region. The Ontario Provincial Police, the Royal
Newfoundland Constabulary, the Surete de Quebec, and the R.C.M.P. were also surveyed.

It may be that the frequency of witness interviews being recorded relates to their use pursuant to s. 715.1
of the Criminal Code. Section 715.1 permits a video taped statement of a complainant to be used in the
prosecution of certain offences as evidence of the truth of its contents if the complainant was under 18 years of
age at the time of the alleged offence, and if he or she adopts the video taped statement.

10 R. v. K.G.B., supra, Appellant's Supplementary Case on Appeal, Summary, pp. 18-20.

11 R. v. K.G.B. Appellant's Supplementary Case on Appeal, Summary, pp. 21-25; see also, the Home Office
Research Study No. 97, The Tape Recording of Police Inteniews With Suspects: A Second Interim Report (1988),
at p. 74; Baldwin, supra, at p. 8, notes that "the great majority of officers (in his study] were favourably disposed"
to video recording, and "most" identified benefits that would not arise when audio recording alone was used.

12 Baldwin, supra, at p. 24.

 -155-

Video recording is a total success.... It shows an accused person at the time

of the offence, not a year later in a staged format in the courtroom. It shows
their state of mind and behaviour then and there so that people can draw
their own conclusions from what they see on tape. It's a total insurance at no
cost to the police officer and adds a deep integrity to the police force and the
professionalism of everyone involved.

Such recordings can also be of great assistance to counsel preparing a case for either the

prosecution or the defence.13 Video recordings can be very powerful defence evidence in

mitigation, for example, demonstrating remorse in the course of a confession.13 Medical

experts may view the tapes and offer opinions about the state of mind of the accused at a

time often very shortly after the events in issue. Accordingly, the Committee is of the view

that the important benefits of recording technology should be utilized in criminal

investigations, and favours the use, where feasible, of video instead of audio recording alone.

The foregoing benefits of recording statements have long been recognized. For

example, as long ago as 1954, Professor Glanville Williams wrote that a recording, unlike

a written statement, can capture

the laughter underneath the words, or surprise, and the way the voice tells of
ideas struggling upwards to form themselves into words; and as well, and more
subtle still, the texture in the spoken word which is an indication of a man's
character and his feelings - the emotional content to him of what he says.15

13 Ibid, at p. 75. Baldwin notes at p. 22, that in England both prosecution and defence counsel place
considerable reliance on the "record of interview", a written summary prepared by the interviewing officer. Such
summaries are provided for in Paragraph 5 of the Code of Practice (E) on Tape Recording issued pursuant to
the Police and Criminal Evidence Act 1984 (s.60(l)(a)). See also, Practice Direction (Crime: Tape Recording:
Police Intcrx’iews), (1989] 1 W.L.R. 631 (C.A.), which outlines procedures to be followed to ensure that there is
agreement on the contents of the record of interview to be used in court, or in the alternative, agreement as to
the portions of the tape that are to be played in court, to minimize the waste of court time playing irrelevant or
inadmissible portions of an interview.

13 Baldwin, supra, at p. 25; "C1B Video Use to Spread", Die West Australian, 23 January, 1992, at pp. 1-2.

15 Glanville Williams, "Recording as Testimony to Truth", [1954] Crim. L. R. 96, at p. 104.

 -156-

Recording of statements by the police has been the subject of much study, both in Canada

and abroad.16 These studies have overwhelmingly supported the viability and desirability

of such recording. It has long and often been urged in academic and other writing that the

police take advantage of the benefits that recorded statements have to offer.17

Both the Supreme Court of Canada and the Court of Appeal for Ontario have

recently endorsed the use of video tapes in police interviews. In R. v. K.G.B.. (1993), 19

C.R. (4th) 1; 79 C.C.C. (3d) 257, the Supreme Court, in a unanimous judgment, overturned

the common law rule that a prior inconsistent and unadopted statement of a witness was

inadmissible to prove the truth of its contents. The Court accepted that such a statement

could be admissible to prove the truth of its contents if the statement is sufficiently reliable.

In assessing the reliability of the prior statement, the Court emphasized, among other

factors, the fact that the statement in question was video taped in its entirety.

16 Law Reform Commission of Canada, Working Paper No. 32, Questioning Suspects (1984),
Recommendations 9-12, at pp. 58-61; Report 23, Questioning Suspects (1984), at p. 18; The Audio-Visual Taping
of Police Inteniews with Suspects and Accused Persons by Halton Regional Police Force (Summan-) (1988),
hereinafter "the Halton Pilot Project"; Report to the Attorney General by the Police Commission on the Use of
Video Equipment by Police Forces in British Columbia (1986); M.McConville, P.Morell, "Recording the
Interrogation: Have the Police Got it Taped?", 11983] Crini. L. R. 158, discussing the results of a Scottish study;
"Police Tapes: The Experimental Approach", New Law Journal, 21 Dec. 1984, at pp. 1118-1119; "Getting It
Taped", New Law Journal, 6 September, 1985, at pp. 877-878; The Feasibility of an Experiment in the Tape-
Recording of Police Interrogations: Report of a Committee Appointed by the Home Secretary’ (U.K.) (1976); Home
Office Research Study No. 97, supra-, Baldwin, Video Taping Police Inteniews with Suspects, supra.

17 Ibid. See also, for example, Glanville Williams, "Proposals to Improve the Perpetuation of Testimony",
[1959] Crini. L. R. 313, wherein the author states at p. 314 that pocket tape recorders "should become as
ubiquitous, almost, as the policeman's notebook"; Glanville Williams, "Questioning By the Police: Some Practical
Considerations", [1960] Crim. L. R. 325 at pp. 342-343; Glanville Williams, 'The Authentication of Statements
to the Police", [1979] Crim. L. R. 6, wherein the writer advocates the use of video recording; the Royal
Commission on Criminal Procedure: Report (1981), Cmnd. 8092, Paras. 4.12-4.15., (in Para. 4.29., the Report
commented, "the time for further experiments to test feasibility is passed... tape recording could start now"); M.
Inman, The Admissibility of Confessions," [1981] Crim. L. R. 469, at pp. 480-481; McConville and Morrell, supra,
at p. 162; J. Vennard, "Disputes Within Trials Over the Admissibility and Accuracy of Incriminating Statements:
Some Research Evidence", [1984] Crim. L. R. 15, at p. 24; D. Roberts, Tape Recording the Questioning of
Suspects," [1984] Crim. L. R. 537; "Police Tapes: The Experimental Approach," New Law Journal, 21 Dec. 1984,
at pp. 1118-1119; E. Goldstein, "Using Videotape to Present Evidence in Criminal Proceedings" (1984-85), Crim.
L. Q. 369, at p. 383; P. Mirfield, Confessions (1985), at pp. 19-41; "Getting It Taped", New Law Journal, 6
September, 1985, at pp. 877-878; J. Baxter, P. Rawlings, and J. Williams, "P.A.C.E.: Protecting the Suspect"
(1986), 50 Journal of Crim. L. 68, at pp. 73-74; A. Grant, "Videotaping Police Questioning: a Canadian
Experiment," [1987] Crim. L. R., 375, at p. 383; "Video Tape Recording of Custodial Interrogation" (1989), 12
Adelaide L. R. 230, at p. 242; The Marshall Commission, Recommendation 75, Vol. 1, at pp. 266-268; J. Baldwin,
"Police Interviews on Tape," New Law Journal, 11 May, 1990, at pp. 662-663, 681; A. Healon-Armstrong and D.
Wolchover, "Recording Witness Statements", [1992] Crim. L. R. 160, at pp. 167-168.
 -157-

In its reasons for judgment, the Court addressed the various hearsay dangers

associated with admitting an out-of-court statement as proof of the truth of its contents.

One such danger is the inability of the trier of fact to observe the demeanour of the person

making the out-of-court statement when the statement is made. The Court concluded (at

p. 20 C.R.; p. 274 C.C.C) that

[tjhe "milestone" represented by widely available videotape technology and its

introduction in the trial process, then, has gone a long way towards meeting
this ... hearsay danger.

The Court later observed that, "In a very real sense, the evidence ceases to be hearsay ...

since the hearsay declarant is brought before the trier of fact."18

The Court of Appeal for Ontario, in R. v. Barrett, 10 June, 1993, as yet unreported,

appears to have endorsed video taping as an important way to reduce court time spent on

voir dires to determine the admissibility of statements. In addition, the Court went so far

as to observe that concern has been expressed about the absence of videotaping when

confessions are taken by the police. The Court of Appeal cited lower court decisions

wherein the absence of a video or audio recording in the circumstances supported an

inference favourable to the accused's version of the taking of the confession, over that of

the police. Carthy J.A., in a separate concurring judgement, said:

the administration of justice would benefit by an end to accusations by

accused persons of mistreatment by the police. The public perception of
police integrity can be assured by the simple expedient of the use of videotape
in all reasonable circumstances where controversy may arise.

The Committee's general endorsement of the use of audio and video technology in

criminal investigations is consistent with the practice in other jurisdictions. For example,

the English Police and Criminal Evidence Act 1984, 32 Eliz. II, c. 60, s. 60(l)(a) goes further

in some respects than the Committee's recommendation, and imposes a statutory duty upon

18
R. v. K.G.B., supra, at 38 C.R.; 242 C.C.C.
 -158-

the Secretary of State to issue a code of procedure19 to be followed in making such

recordings.20 Further, England is looking closely at making extensive use of video

recordings in the same circumstances.21

Experience with video taping police interviews has led to the practice being endorsed

in Australia, New Zealand, Hong Kong, and in some jurisdictions in the United States.22

Following pilot projects in New Zealand, video recording of police interviews with suspects

is "rapidly being introduced nationally."23 The Australian Law Reform Commission is in

favour of the practice.24 Pursuant to a 1989 amendment25 to the Crimes Act, 1958 of the

Australian State of Victoria, s. 464H thereof now provides that confessions or admissions

are inadmissible unless audio or video recorded, absent "exceptional circumstances" that

"justify the reception of the evidence" (s. 464H(2)).26 The Criminal Investigation Bureau

of the state of Western Australia announced in January, 1992 its intention to video tape

interviews with all accused persons, following the "outstanding success" of a two-year pilot

project, which the Police Minister stated, "exceeded even the most optimistic

19 See the Police and Criminal Evidence Act 1984, (s. 60(l)(a)): Code of Practice (E) on Tape Recording.
This Code was approved by Parliament in July, 1988: House of Commons, Hansard, Vol. 138, July 27, 1988, Cols.
444-463; House of Lords, Hansard, Vol. 500, July 28, 1988, Cols. 443-453.

20 See also R. v. Rampling, [1987] Crim. L. R. 823, wherein the English Court of Appeal set out procedural
guidelines for the use in court of taped interviews.

21 Crown Prosecution Service, Annual Report, 1991-1992, at pp. 40-41; Baldwin, supra, (1992).

Baldwin, supra, at pp. 24-27.

23 J. Rowan, "Electronic Recording of Police Interviews in New Zealand", New Zealand Law Journal,
October, 1992, at p. 360; The New Zealand Police Electronic Recording of Police Interviews, Policy and Procedure
Guidelines (1991).

24 Australian Law Reform Commission, Report No. 38, Evidence (1987), at pp. 92-94.

25 The new provisions came into operation on 15 March, 1989: D. Parsons, M. Taft, "Records of Interview -
New Law", The Law Institute Journal, Vol. 66 No. 4, April, 1992, at p. 247.

26 The Act was apparently amended in response to the view expressed by two committees studying the issue
that "universal tape-recording of interviews with suspects by law enforcement officials would have substantial
benefits ... for the administration of justice:" Victorian Legislative Council Parliamentary Debates (Hansard), 3
May, 1988, at p. 1010. See also Pollard v. The Queen, 24 December, 1992, unreported (High Court of Australia).
 -159-

expectations."27 On 9 December, 1992, the Acts Amendment (Jurisdiction and Criminal

Procedure) Act 1992 (No. 53 of 1992), received royal assent in the Western Australia
Parliament. Sections 570A-H provide for video taped interviews by the police. Pursuant
to s. 570D, admissions in "serious" cases are prima facie inadmissible unless video taped.
Admissions that are not video taped are admissible only if the prosecution proves, on a
balance of probabilities, that there is a "reasonable excuse" for not taping, or the court is
satisfied that there are exceptional circumstances which, in the interests of justice, justify the
admission of the evidence (s. 570D(2)(b), (c)). The High Court of Australia observed in
McKinney v. The Queen; Judge v. The Queen (1990-1991), 171 C.L.R. 468, that "in Tasmania,
it appears that interviews are routinely recorded,"28 and that audiovisual recordings would
be the norm in New South Wales within two years.29 It appears the police in Queensland
likewise video tape interviews.30 The High Court in McKinney, supra, went on to hold, in
reliance on the ready availability of video tape technology, that a jury must be warned of
the danger of convicting on the sole basis of a confession made in police custody that is not
reliably corroborated. In so holding, the Court stated, at p. 478, that "the contents of the
requirement of fairness may vary with changed social conditions, including developments in
technology and increased access to means of mechanical corroboration."31

Courts in the United States have recognized that video recording of police interviews
is desirable and should be encouraged. For example, in Hendricks v. Swenson, 456 F. 2d 503
(8th Cir. 1972), the Court of Appeals stated, at p. 507, that "for jurors to see as well as hear

27 "CIB Video Use to Spread", The West Australian, 23 January, 1992, at pp. 1-2; "CrimTV Saves Manpower
and WA's a World Leader”, Sunday Times (West Australia) 4 October, 1992, at pp. 1-2.
■yo
McKinney v. Tire Queen; Judge v. The Queen, supra, at 474.

29 Ibid.

30 "Cabinet Accepts Taping", The Courier Mail (Brisbane), 4 October, 1988, at p. 2; "Police Video taping of
Interviews due in April", The Courier Mail (Brisbane), 7 January, 1989, at p. 13; "Police Begin Video taping
Interviews", Sun - Brisbane, 21 August, 1989, at p. 2.

31 It has been noted that this decision is a departure from a long line of authority in Australia holding that
such a caution to the jury is unnecessary. See "McKinney v. The Queen', Judge v. The Queen" (1991), 21 Western
Australia L. R. 365, at p. 372. The same commentators criticized the decision on the ground that the recent
availability of video tape technology cannot change the issue of whether a caution is or is not required as a
matter of fairness at trial.
 -160-

the events surrounding an alleged confession or incriminating statement is a forward step

in the search for the truth."32 In Texas, Article 38.22 of the Code of Criminal Procedure

provides that oral statements made by an accused as a result of custodial interrogation are

not admissible unless audio or video recorded.33 The Supreme Court of Alaska has held

that state due process requires custodial interrogation sessions to be recorded "where

feasible": Stephan v. State of Alaska, 711 P. 2d 1156 (1985). The preponderance of case law

in the United States does not, however, go this far.34

While generally in favour of video technology as an aid to criminal investigations, the

Committee recognizes that its use is subject to certain inevitable limits. In many

investigative situations, it is simply not feasible to use recording equipment. For example,

during the investigation of a motor vehicle crime on a busy thoroughfare, the background

traffic noise may make it impossible to obtain audible recordings of witness statements. In

some situations, an investigator working in the field or actively pursuing leads may have his

or her mobility hampered, and may be distracted from the actual investigation at hand, by

a requirement that a video recording be made. The Supreme Court observed in R. v.

K.G.B., supra, that "of course the police would not resort to this precaution in every case."35

Accordingly, the Committee has limited its recommendation concerning the use of audio or

video technology to the taking of statements from suspects or accused persons at the police

station, or wherever detained.

32 See also McCormick on Evidence (4th Ed.) at pp. 667-68.

33 Vernon's Annotated Code of Criminal Procedure of the State of Texas, as updated, Art. 38.22; Ragan v.
State, 642 S.W. 2d 489 (Tex. Cr. App. 1982); Paster v. Slate, 701 S.W. 2d 843 (Tex. Cr. App. 1985) cert, denied
106 S. Ct. 1240 (1986); Meador v. State, 811 S.W. 2d 612 (Tex. App. - Tyler 1989) aff'd 812 S.W. 2d 330.

34 Hendricks v. Swenson, supra-, U.S. v. Short, 947 F. 2d 1445 (10th Cir. 1991); State v. Gorton, 548 A. 2d 419
(Sup.Ct. Vt. 1988); People v. Everette, 543 N.E. 2d 1040 (Ill. App. 1 Dist. 1989); Jimenez v. State of Nevada, 775
P. 2d 694 (Sup. Ct. 1989); Coleman v. State, 375 S.E. 2d 663 (Ga. App. 1988); Dill v. Stale, 600 So. 2d 343 (Ala.
Cr. App. 1991); Starks v. State, 594 So. 2d 187 (Ala. Cr. App. 1991); Williams v. Slate, 522 So. 2d 201 (Miss. Sup.
Ct. 1988); State v. Boudreaux, 454 So. 2d 1293 (La. App. 3 Cir. 1984); State v. Rhoades, 820 P. 2d 665 (Idaho Sup.
Ct. 1991); State v. Pilcher, 472 N.W. 2d 327 (Minn. Sup. Ct. 1991); Myers v. Slate, 510 N.E. 2d 1360 (Ind. Sup.
Ct. 1987).

35 Supra, at 38 C.R.; p. 292 C.C.C.

 -161 -

The Committee is of the view that audio or video recording statements of suspects

or accused persons is of particular importance for two reasons. First, by the time a person

is questioned as a suspect, there exists a serious possibility that he or she will later become

an accused person. The statement of an accused person, particularly if inculpatory, is

invariably evidence of overwhelming importance at any criminal trial. Given the primary

importance of this type of evidence, it follows, in the Committee's view, that steps should

be taken to ensure that the recording of the statement is as accurate and complete as is

reasonably possible. A video recording is also of great assistance to the trier of fact, who

must decide matters of credibility.

Second, there are important legal conditions precedent to the admissibility of any

statement by an accused person, the examination of which in court can be markedly assisted

by an audio or video recording. In the Committee's view, a video tape of an accused

person's statement has great potential to contribute to determining whether the statement

was given voluntarily, which is one of the conditions of its admissibility. The demeanour of

the accused person at the time of the statement, and the conduct of the officers questioning

him or her, as revealed by the video tape, can, in the Committee's view, in a great many

cases, make the voluntariness question a non-issue. This, of course, means that, by the

relatively simple expedient of recording a statement while it is being made, police officers,

counsel, and the court can be spared sometimes hours or days of court time that would

otherwise be required to conduct a voluntariness voir dire.36 It also affords the accused

protection from oppressive interrogations, and affords the police protection from

unwarranted allegations of such oppression.

A video tape can also be of great assistance in ensuring that an accused has been

accorded his or her right to counsel. For example, a video tape can clearly indicate that an

accused was or was not informed of the right to counsel. The tape can show whether the

accused, after being advised of his or her right, was accorded sufficient opportunity to

contact counsel. The tape can reveal whether the right was waived. It can also assist in

determining whether a purported waiver is legally sufficient due to, for example,

36 See, for example, R. v. Vangent and Green (1978), 42 C.C.C. (2d) 313 at 329-330 (Ont. Prov. Ct.).
 -162 -

intoxication.37 Currently, these issues and others that arise concerning the right to counsel

are, like voluntariness, litigated extensively in trial courts, in reliance upon viva voce

testimony alone. In this area too, then, video taped statements have significant potential to

expedite trial proceedings, and free the personnel, otherwise enmeshed in such litigation,

to perform duties elsewhere.

The Committee has not recommended that statements of all witnesses be recorded.

The Committee's recommendation is limited to two classes of persons: suspects or accused

persons who give statements at a police station, whether or not they are detained; and

suspects or accused persons who give a statement anywhere other than a police station, if

they are detained. A recommendation that statements of all witnesses be recorded would,

in the Committee's view, be, in many cases, impractical. Except in the most complicated

conspiracy cases, there are, generally speaking, very few accused persons in any given

criminal prosecution. Thus, there will be, in most investigations, very few persons detained

and questioned as suspects or as accused persons. This keeps the use of recording

equipment within manageable limits. On the other hand, in many cases, dozens or even

hundreds of people may be interviewed as potential witnesses. These interviews may occur

in any number of places where the use of recording equipment is not practical. Further, it

is not unusual for criminal investigations to deal with delicate matters, or involve witnesses

whose own course of conduct may leave something to be desired. Thus, many witnesses may

be reluctant to offer their insights into a tape recorder or the lens of a video camera. Much

information gathered during an investigation clearly cannot be recorded, as it is received

from potential witnesses by investigators working in an undercover capacity. These are

among the reasons that have led the Committee to avoid any recommendation that all

witness interviews be recorded.

For similar reasons, the Committee does not recommend that conversations with

suspects neither detained nor at a police station be audio or video recorded. However, the

absence of a recommendation pertaining to witnesses generally or suspects who are not

detained should not discourage the investigator from recording a statement where he or she

37 R. v. Clarkson (1986), 25 C.C.C. (3d) 207 (S.C.C.).

 -163-

thinks it advisable as a matter of sound investigative practice, even if such use is

innovative.38 For example, as noted by the Supreme Court of Canada in R. v. K.G.B.,

supra, it may be advisable to record the statement of a potential Crown witness where his

or her continued co-operation with the prosecution is in doubt.39 Identification line-ups

may also be usefully video taped to demonstrate their fairness, and the certainty or

otherwise with which a victim identifies a suspect or an accused.

Despite the general desirability of recording statements by suspects or accused

persons who are detained or who are at a police station, the Committee recognizes that

recording all or even part of these statements may not always be feasible. A suspect or

accused person may be detained and questioned in any number of locations where recording

is impractical, for example, during a chance encounter and apprehension of a sought-after

suspect or accused person, or during a police raid to effect an arrest. Further, even if a

suspect or accused person is detained in circumstances where video recording is feasible, he

or she may unexpectedly blurt out a statement, before there is an opportunity to commence

a recording. This may result in the statement being incompletely recorded, or not recorded

at all, although the suspect should be given an opportunity to repeat the statement on

videotape. Alternatively, a suspect or accused person may agree to give a statement only

if it is not recorded.40 The Committee's recommendation that statements of suspects or

accused persons be recorded is, therefore, worded to accord due recognition to practical

limitations of this sort. In addition, it must be recognized that recording a statement of an

accused person is not legally necessary in order for it to be admissible in court. Given the

TO
In the Report to the Attorney General by the Police Commission on the Use of Video Equipment by Police
Forces in British Columbia (1986), The Commission noted at p. 33 of their Report that "What started with the
tentative uses of the video camera as a recording device and investigative tool has developed into a broad range
of uses of the camera in the development of investigative techniques." The Commission noted that video
recording may have a role to play in surveillance, recording of crime scenes, re-enactments, line-ups, preservation
of witness testimony, witness interviews, confessions, training officers, and gathering demonstrative evidence, for
example, in road side impaired driving investigations.

39 R. v. K.G.B., supra, at 38 C.R.; p. 292 C.C.C.

40 Studies addressing this question found that objections to being taped were infrequent: see the Halton Pilot
Project, supra, at p. 19; Home Office Research Study No. 97, supra, at p. 74.
 -164-

limits on the feasibility of recording statements, the Committee makes no recommendation

that the law change in this respect.

The Committee is not, however, of the view that financial constraints fall within the

"where feasible" exception to its recommendation that statements of suspects or accused

persons be recorded. The Committee recognizes that this recommendation does entail

additional initial expenditure to acquire the requisite recording equipment and train

sufficient personnel in its use.41 However, the Committee is of the view that acquiring and

diligently using such equipment will be a great advantage to the administration of justice

that is worth the cost. Further, recording statements can, over time, occasion substantial

savings for police departments and the public. The Committee anticipates that, in most

jurisdictions, the savings in police witness costs (often incurred at overtime rates) to be

realized from the reduced frequency of admissibility voir dires for recorded statements, will

more than offset the costs of recording.42 In addition, unassailable confessions on video

tape may facilitate guilty pleas, thereby obviating the costs of a trial altogether,43 or may

enhance the prosecution's case in the event of a not guilty plea.44 Video taping may also

lead to savings because a second officer need not attend an interview to take notes, as is the

practice with unrecorded interviews. Finally, recorded interviews may assist police officers

in focussing on the task at hand, thereby improving the quality of the evidence. As observed

41 The expenditure may not be significant, given that video technology is now affordable for many families.
Based on technology and prices in the mid 1980's the Law Reform Commission estimated that the Halton Police
Force could be outfitted with the necessary video equipment for approximately the cost of one police cruiser:
see the Halton Project, supra, at p. 20. Willis, Macleod and Nash, in their Home Office Research Study No. 97,
supra, note that a significant cost factor is the transcription of taped interviews. However, in the pilot projects
conducted for that study, transcripts were rarely required in Court. The researchers conclude that the viability
of tape recording statements depends to a large extent on the parties adapting to use of the tapes without
transcripts, which the study indicates is readily done if the parties are prepared to co-operate: see pp. 75-78. The
English Court of Appeal has held in R. v. Rampling, [19871 Crim. L. R., 823 that for courtroom purposes, the
evidence is the tape itself, and a transcript is simply an administrative convenience.

42 Home Office Research Study No. 97, supra, at p. 76; Report to the Attorney General by the Police
Commission on the Use of Video Equipment by Police Forces in British Columbia (1986), at p. 31.

43 R. v. K.G.B., supra. Appellant's Supplementary Case on Appeal, Summary, pp. 21-25; Home Office
Research Study No. 97, supra, at p. 75; Baldwin, supra, at pp. 20-21; "CrimTV saves manpower and WA's a
World Leader", Sunday Times (Western Australia) 4 October, 1992, at pp. 1-2.

44 Home Office Research Study No. 97, supra, at p. 76.

 -165-

by the Law Reform Commission of Canada, during the Halton Pilot Project, when interviews

were being recorded, "officers were much more conscious of the need to be properly

prepared before going into an interview ... they are also motivated by professional pride in

being regarded as a competent investigator by their colleagues."'45

In accordance with the foregoing discussion, police personnel involved in recording

statements will, of course, have to take certain steps to maximize the effectiveness of the

recordings as a forensic tool. Personnel must be trained in the proper use of recording

equipment. The suspect or accused person must be advised that the statement is being

recorded.46 The giving of this advice should itself be recorded, so that there is no doubt

that it was given. In addition, all of the requisite advice and cautions that precede the

taking of a statement must be made after the recording has commenced, so that they are

recorded. The police should, where appropriate, advise a suspect, after the recording has

commenced, of his or her right to remain silent, and the right to retain and instruct counsel,

including proper reference to legal aid or duty counsel.47 The great reliance which the

Supreme Court, in their reasons for judgment in R. v. K.G.B., supra, placed on video taping

witness statements will provide added incentive to the police to adopt this practice in

appropriate cases. When a video recording is made of the statement of a witness, an oath

should be administered, as this will be an important factor in assessing reliability and, thus,

the admissibility of such a statement to prove the truth of its contents.48 Technical matters,

such as the quality and working order of the tape and the recording device, must be

addressed. Interruptions in the taking of a statement, for example, to change a tape, to

45 Law Reform Commission of Canada, the Halton Pilot Project, supra, at p. 18 Similar observations were
made in England. See J.A. Barnes and N. Webster, Police Interrogation: Tape Recording, Royal Commission on
Criminal Procedure Research Study No. 8 (HMSO, 1980) at para. 4.67 (quoted in Roberts, 'Tape Recording the
Questioning of Suspects", supra, at p. 543). English and Scottish research has indicated that taped interviews
meant more police preparation for the interviews, and shorter interviews, with no less success in securing
confessions or admissions from suspects: "Getting It Taped", supra, at p. 877; Baldwin, supra, (1992),
demonstrates in much detail the value of videotaping interviews as a tool for police managers concerned to
provide and maintain a high level of interview skill on the part of criminal investigators.

46 Duarte v. The Queen (1990), 53 C.C.C. (3d) 1 (S.C.C.).

47 R. v. Cobliam (1992), 11 C. R. (4th) 122 (Alta. Q.B.).

48 R. v. K.G.B., supra, at pp. 34-37 C.R.; at pp. 288-293 C.C.C.

 -166-

permit anyone to take a break, or to permit a suspect to consult counsel, must be accounted

for to avoid any suggestion that the interruption undermines the veracity of the recording.

Finally, after the interview is concluded, steps must be taken to protect the integrity

and continuity of the recording.49 The Committee recognizes that this aspect of ensuring

that recorded statements are suitable for courtroom purposes is extremely important, and

may also be difficult. For example, as one English Committee (the Hyde Committee)

studying the matter recognized, police interviews "are frequently long, inconsequential and

confusing, or contain irrelevant and inadmissible matter." Therefore, it was observed that

"careful editing would be necessary in some cases," although "this may well give rise to

difficulties, particularly when there are a number of co-defendants whose interests do not

coincide."50 The Committee is of the view that any editing undertaken should be to a

working copy of a tape, so that there remains, at all times, a master tape that has not been

edited in any way.

2. Ethical and Legal Obligations Relating to Disclosure

The practice of providing disclosure is, of course, only one part of the early stages

of the criminal process, albeit a very important part. It follows, therefore, that the duties

of the police. Crown counsel, and defence counsel to act with uncompromising integrity and

responsibility in the early stages of the criminal process, as discussed in Chapter I, apply

without modification to the provision and use of disclosure. Naturally, the ethical and legal

obligations with respect to disclosure that are placed upon Crown counsel, defence counsel,

and the police differ in nature in recognition of the different functions performed by each

49 The need to preserve the integrity of the recording has been recognized as a serious concern as long as
recordings themselves have been advocated. See, for example, Glanville Williams, "Recording as Testimony to
Truth", supra, at pp. 96-100; "Questioning by the Police: Some Practical Considerations", supra, at p. 342. The
present English Code of Practice (E) On Tape Recording, supra, sets out specific procedures to be followed after
an interview has been taped, including the use of a master tape which is to be sealed, to ensure the integrity of
the recording. During the Halton Pilot Project, however, there were no allegations of tampering with the
recording: see pp. 19-20.

50 The Feasibility of an Experiment in the Tape-Recording of Police Interrogations: Report of a Committee

Appointed by the Home Secretary (1976), at p. 23.
 -167-

in the criminal justice system. However, it is important to emphasize, in the Committee's

view, that while the legal and ethical obligations of Crown counsel, defence counsel, and the

police, which are discussed below, differ in detail, they are all equal in importance. They

are all essential to the fair and effective functioning of the justice system, and are all

essential to the justice system continuing to be held in high regard in the eyes of the

community.

Transgression of any of the ethical and legal obligations which are set out below is

invariably a matter of serious concern. The penalties for such transgression may be

significant and, indeed, may involve penal sanctions. However, in the Committee's

observation, the highest standards of integrity and professionalism among defence counsel,

the police, and Crown counsel are, at present, the norm. As noted in Chapter I, the

administration of criminal justice in Ontario requires no less. Consequently, while the

recommendations (and discussions thereon) which follow are important as a matter of

education, and as enforcement mechanisms of last resort, they are not in any sense veiled

criticism of the police, Crown counsel, or defence counsel. The Committee's fundamental

presumption of integrity on the part of Crown counsel, defence counsel, and the police has

led it to conclude that the most appropriate method of ensuring the evolution of pre-trial

practices in accordance with evolving conceptions of justice is not through emphasizing the

heavy-handed sanctions of penal regulations, but rather through education. The

Committee's recommendations with respect to such education are found later in this Report.

The Police

It is well settled and accepted by all, including the police, that the police, although

operating independently of Crown counsel, have a duty to disclose to Crown counsel all

relevant information uncovered during the investigation of a crime, including information

which assists the accused.51 This principle has for some time been well recognized and put

into practice by police forces across the province. As one commentator has observed, "the

duty of the police to disclose relevant information about a case, to the Crown, is a duty that

51 See, for example, R. v. Dohan, 19 November, 1992, unreported (N.S.S.C.T.D.).

 -168-

existed before [Stinchcombe, supra].'62 No police officer took issue with this principle

before the Committee. Internal police discipline procedures already exist to address any

failure to disclose as required. Accordingly, the Committee sees no need to make a

recommendation to this effect.

The pre-existing duty on the part of the police to provide full disclosure to Crown

counsel is as important as it is uncontroversial. In most circumstances, the police are the

principal source of all information that subsequently becomes evidence in a criminal

prosecution. The police, as the investigative arm of the state, have the primary

responsibility for acquiring such evidence. However, it is Crown counsel who must conduct

the prosecution. Crown counsel cannot do so effectively or responsibly without being

apprised of all that is relevant. Material that assists an accused may be particularly

important, as Crown counsel must prepare to deal with such material in court.

Alternatively, material favourable to the accused may lead Crown counsel to withdraw the

charge, or require further investigation. Police disclosure to the Crown is also important

in that it allows Crown counsel to discharge his or her constitutional obligation to then

disclose all relevant information to the accused.

The Committee is agreed that one statement of the police officer's duty to disclose

is already found, for example, in the present Code of Offences under Regulation 791 of the

Police Services Act, R.S.O. 1990, c. P-15. The present text of s. l(c)(vii) of the Code of

Offences provides that an officer is guilty of neglect of duty if he or she,

fails to disclose any evidence that he, or any person within his knowledge can
give for or against any prisoner or defendant.

The location of the police obligation to disclose to Crown counsel in a regulation under the

Police Sendees Act accords with the mutual independence of the Crown and the police, in

5“ T.M. Brucker, "Disclosure and the Role of the Police in the Criminal Justice System" (1992), 35 Crim. L.
Q. 57, at p. 76.
 -169-

that it makes the obligation to disclose a matter of internal police necessity, rather than a

matter of direction from the Crown.

When a case reaches the trial court, where there has been a failure to disclose to an

accused person by the prosecution, the remedies which a court may grant include, for

example, a stay of proceedings, or an adjournment, as necessary, with a direction to disclose

the required information. The remedies which a court can grant also, no doubt, offer

considerable practical incentive to ensure that the community interest in trying a case on

its merits is not frustrated by police non-disclosure. Further, as noted by the Law Reform

Commission of Canada, any officer who deliberately suppressed information from the

prosecutor or officer in charge of the case might well be liable to prosecution for obstructing

justice.53

While the Committee is entirely satisfied as to the existence of a general duty on the

part of police officers to disclose evidence, whether favourable or unfavourable to an

accused, the Committee considers it appropriate to recommend, for the purpose of clarity

only, the following amendment to s. l(c)(viii) of the Code of Offences under Regulation 791

of the Police Services Act.

29. The Committee recommends that s.l(c)(viii) of the Code of Offences, a Schedule to

Regulation 791 under the Police Services Act, R.S.O. 1990, c. P-15 be amended to read as

follows:

1. Any chief of police, other police officer or constable commits an offence against
discipline if he is guilty of

(c) NEGLECT OF DUTY, that is to say, if he,

53
Law Reform Commission of Canada, Report on Disclosure by the Prosecution, Report 22 (1984), at p. 27.
 -170-

... where a charge is laid fails to disclose to the officer in charge of the
prosecution or the prosecutor any information that he or any person within his
knowledge can give for or against any prisoner or defendant.

Clarifying the general nature of the duty to disclose, in the context of an amendment

to the regulation under the Police Services Act, maintains the independence of the police

from Crown counsel, while at the same time ensuring that the fruits of the investigation will

be put to the use necessary, by both the prosecution and the accused, to see that justice is

done.

Crown Counsel

30. The Committee recognizes that it is a serious disciplinary offence for the Crown to fail

to disclose to the defence as required.

The Committee makes no recommendation in this respect, as none is necessary in

light of the pre-existing case law on point. The cases are clear that Crown counsel who

withholds disclosure material is engaging in very serious professional misconduct. As the

Supreme Court of Canada has held in Stinchcombe, supra, at 339:

The experience to be gained from the civil side of the practice is that counsel,
as officers of the court and acting responsibly, can be relied upon not to
withhold pertinent information. Transgressions with respect to this duty
constitute a very serious breach of legal ethics.

The case of Re Cunliffe and The Law Society of British Columbia (1984), 13 C.C.C.

(3d) 560; 40 C.R. (3d) 560 (B.C.C.A.), is also instructive, in so far as it demonstrates that

failure by Crown counsel to disclose, in a timely fashion, evidence favourable to the defence

constitutes professional misconduct, apart altogether from the consequences of such non¬

disclosure. In Cunliffe, the non-disclosure by Crown counsel (who was not Cunliffe) that

amounted to professional misconduct did not occasion a miscarriage of justice as the

accused was ultimately acquitted at trial.

 -171-

31. The Committee recommends that it is inappropriate for Crown counsel to limit or refuse

disclosure in a case, unless defence counsel agrees to limif a preliminary inquiry so as to ensure

efficient use of court time. This does not preclude counsel from agreeing to shorten or waive

a preliminary inquiry.

It is well recognized that the preliminary inquiry has traditionally come to be seen

as a vehicle for disclosure of the Crown's case. The Supreme Court of Canada has

observed, in Skogman v. The Queen (1984), 13 C.C.C. (3d) 161 at 171, that "in the course

of its development in this country, the preliminary hearing has become a forum where the

accused is afforded an opportunity to discover and to appreciate the case to be made against

him at trial". The Supreme Court of Canada has also recognized, as stated above in the

introduction to this Chapter, that full disclosure has the benefit of occasioning significant

shortening or waiver of preliminary inquiries. The Court of Appeal for Ontario, in Re

Regina and An>iv (1985), 19 C.C.C. (3d) 395 (leave to S.C.C. refused, 19 C.C.C. (3d) 395n),

has held that provided there is sufficient disclosure, there is no constitutional right to a

preliminary inquiry. The foregoing might be seen to support a suggestion that the granting

of disclosure by Crown counsel may properly be made conditional upon waiver or

modification of the preliminary inquiry. The Committee, however, rejects this suggestion.

In the Committee's view, the constitutional right to disclosure, as recognized by the

Supreme Court of Canada in Stinclicombe, supra, is unqualified. It is not a right that an

accused possesses conditionally, from which he or she can benefit only upon adhering to

certain requirements, stipulated by the Crown, pertaining to the conduct of the case.

Indeed, the central purpose of the right to disclosure is to facilitate such full answer and

defence as an accused alone, in consultation with counsel, thinks necessary. The Supreme

Court has held that the accused is entitled to disclosure prior to election or plea. As the

Court explained (at 342-343), "it will be of great assistance to the accused to know what are

the strengths and weaknesses of the Crown's case before committing on these issues."

Clearly then, such a requirement exists so that the accused can make such full answer and

defence as is necessary at every stage of the criminal trial process. It would, therefore, be
 -172-

wrong, in the Committee's view, to permit disclosure to be made conditional upon

restricting the conduct of the defence.

The Committee is sensitive to the arguments that, if an accused has already

benefitted from full and early disclosure, a preliminary inquiry is an unnecessary use of

limited court time. It must be observed, however, that a preliminary hearing may assist the

defence in ways that have little to do with obtaining disclosure. For example, the strength

of key prosecution witnesses can be assessed. Such assessments may even lead to pre-trial

resolutions that would not be forthcoming without a preliminary inquiry, even if there were

full disclosure. In any event, arguments about disclosure making a preliminary hearing

unnecessary are essentially about the desirability of preliminary inquiries, not about

disclosure. Nothing in the Committee's mandate permits comment on the general

advisability of preliminary inquiries, and the Committee offers none.54

However, it must be reiterated that, in practical terms, full disclosure invariably leads

to fewer and shorter preliminary inquiries. The waiver and shortening of preliminary

inquiries can, therefore, be accomplished without disclosure being made conditional upon

such waiver or shortening. In this regard, the Committee thinks it appropriate to rely upon

the good sense of defence counsel to recognize, in appropriate cases, that, with full

disclosure, a committal for trial is inevitable, and that a preliminary inquiry will often

accomplish no useful or responsible purpose. Thus, the Committee has been careful to

emphasize in the present recommendation that agreements to shorten preliminary inquiries

are not discouraged. Indeed, such agreements are to be actively encouraged. In this

respect, generally, see Chapter IV, "Resolution Discussions": Provided no interest of an

54 The Committee notes that the preliminary inquiry is a much studied aspect of our criminal procedure,
about which opinions vary. Some study groups have recommended that it be modified. See, for example, the
Law Society of Upper Canada's Report of the Special Committee on Preliminary’ Hearings (1982) (the "Martin
Committee"). Others have recommended that it be abolished. See, for example the Law Reform Commission
of Canada, Criminal Procedure: Discovery (1974) at p. 28 (but cf. Disclosure by the Prosecution (1984) at p. 11);
and the comments by the Honourable Chief Justice A. Lamer, Globe and Mail, 11 June, 1992, p. 1. Proposals
for the reform of preliminary inquiries are not limited to this country. See, for example, G. James, "Committal
Proceedings, Pre-Trial Disclosure: Where are We? Where Do We Go?", Current Issues in Criminal Justice
(Australia), November, 1990, at pp. 26-36, and in the same publication, B. McKillop, "Committal for Trial & Pre¬
trial Disclosure: Some Overseas Perspectives", at pp. 52-66; P.Byrne, "Committal Proceedings: New South Wales
Proposals" (1990), 64 Australian Law Journal 430.
 -173-

accused person is sacrificed, waiving unnecessary preliminary inquiries shortens courtroom

proceedings, and, thus, enhances the administration of justice by making it more expeditious,

and more responsive to the community's need for prompt resolution of criminal allegations.

Finally, the Committee has been informed of a pilot project in Ottawa where, in

appropriate cases, defence counsel, having received full disclosure, agrees to waive a

preliminary inquiry and, instead, examines particular witnesses under oath at a special

examiner's office. The Committee's recommendation does not affect commendable efforts

such as this to devise fair and efficient alternatives to our current criminal procedures.

32 The Committee recommends that it is inappropriate for the Attorney’ General to withhold

disclosure, unless defence counsel gives an undertaking not to share the information with his or

her client.

In the Committee's view, the present recommendation, like the preceding one, flows

naturally from the holding in Stinchcombe, supra, that the right to disclosure is a

constitutional right that exists without qualifications. Thus, in providing disclosure, the

Crown cannot impose conditions, particularly those that can markedly affect the solicitor-

client relationship. It cannot be overlooked that the right to disclosure is a right that is

vested in an accused person. It is not a right vested in defence counsel. Accordingly, the

Crown cannot prevent disclosure information flowing from defence counsel to his or her

client, as this would clearly compromise the right of the accused person to full disclosure.

It is a basic principle of our adversarial system that an accused person has the right

to retain and instruct counsel. However, an accused person cannot meaningfully instruct

counsel if he or she cannot be privy to the details of the prosecution's case. As a practical

matter, counsel will usually review disclosure materials and, thereafter, give advice

concerning the conduct of the case that a client will quite readily accept. Thus, it might be

said that disclosure to counsel alone may, in practice, facilitate the right to make full answer

and defence. However, in the Committee's view, this overlooks the crucial fact that it is the
 -174-

client who instructs counsel, not vice versa. It is always the prerogative of an accused

person to decline to accept the advice of counsel, or even to dismiss him or her.

Accordingly, an accused person must always be in a position to become fully aware of all

the circumstances of the prosecution, so that retainer decisions can be made and instructions

given knowledgeably.

Disclosure that is conditional upon the materials disclosed not being discussed with

a client can also place defence counsel in an impossible position. On the one hand,

counsel's clear duty is to fearlessly advance his or her client's best interests. On the other

hand, counsel is, as an officer of the Court, duty bound to scrupulously adhere to

undertakings given in the course of litigation. Consequently, if the Crown is able to extract

an undertaking that disclosure materials will not be discussed with a client, there arises a

very real possibility that these two duties will clash irreconcilably. For example, in order to

make the best forensic use of any given disclosure material, or even to understand its

significance in the context of the case, counsel may need to discuss it with a client.

However, if counsel has given an undertaking to the Crown not to do so, he or she is

obliged to breach either the duty to serve the client well, or the duty to honour

undertakings.55

There is a further, and very practical, concern that would arise if disclosure could be

made to counsel on the condition that it not be discussed with an accused. The Committee

is of the view that such a practice risks undermining the essential relationship of trust that

should exist between solicitor and client. Even if the ability to make full answer and

defence is not affected, the impression that can be created by such disclosure from the

accused person's perspective, is that defence counsel has entered into a secret agreement

with the prosecutor, and is excluding the accused from what may be a very important aspect

of the conduct of the case. In the Committee's view, disclosure cannot be limited in a way

that creates the risk of these perceptions arising, as they are perceptions which strain

unacceptably the crucial relationship between solicitor and client.

55
R. v. Harper-Taylor; R. v. Bakker, [1991] R.T.R. 76 at 81k (Eng. C.A.).
 -175-

The Committee recognizes that some disclosure material may be highly sensitive.

Disclosure to an accused person of sensitive material may be ill-advised, and may even

threaten someone's life or safety. In recognition of this, the Committee has expressed its

view as to the obligations on defence counsel to limit the use to be made of disclosure

materials. The recommendations which follow also permit Crown counsel to take other

reasonable steps, such as delaying disclosure, where there are reasonable grounds to believe

that such steps are necessary to protect the safety or security of any person.

Defence Counsel

Clearly, the right to disclosure, recognized by the Supreme Court of Canada in

Stinchcombe, supra, is a right of the accused, which places corresponding obligations upon

the Crown. Therefore, defence counsel, as the representative of the accused, for the most

part benefits from disclosure. Full disclosure invariably enhances counsel's ability to advise

his or her client, and to prepare for the trial or the plea and sentencing. However, in the

Committee's view, these broad disclosure rights cannot^ be misused by the defence.

Disclosure is an accused's constitutional right because of its crucial role in making full

answer and defence. However, it cannot be overlooked that, while the right to make full

answer and defence is paramount in the realm of disclosure, there are other important, and

competing, values at stake. These values include public safety, the privacy interests of

victims or witnesses, and the need to maintain the integrity of the administration of criminal

justice. These important values must be accommodated to the greatest extent possible.

For example, the Supreme Court, in Stinchcombe, supra, at 335, rejected the

argument that there should be no right to disclosure because it would permit evidence to

be tailored to meet the case as disclosed. The Court stated that "the search for truth is

advanced, rather than retarded by disclosure of all relevant material." Thus, while the

Stinchcombe case makes it clear that disclosure cannot be withheld out of a fear of

fabricating evidence in response, it is equally clear that disclosure is not to be used by an

accused for that purpose. Fabricating evidence obviously undermines the very search for

truth that disclosure is meant to enhance. Defence counsel knowingly participating in the
 -176-

fabrication of evidence is, of course, guilty of a very serious transgression of his or her

professional obligations, and may well be guilty of obstructing justice. In the

recommendations that follow, the Committee addresses other aspects of disclosure as the

practice affects defence counsel.

33. The Committee acknowledges that, at present, there is no obligation upon the defence

to disclose any part of its case before trial. The Committee makes no further recommendation

in this respect.

The present recommendation preserves the status quo with respect to the issue of

disclosure by the defence. Disclosure has become a constitutional right of an accused

person, pursuant to Stinchcombe, supra. It is, therefore, apparent, in the Committee's view,

that any correlative issue of disclosure by the defence may also have a constitutional

dimension to it. Indeed, the Supreme Court, in Stinchcombe, adverted to this possibility,

stating, at 333, that whether the duty of disclosure "should be reciprocal may deserve

consideration by this Court in the future." In view of the fact that this issue may involve

constitutional considerations, which can only be finally decided by the Supreme Court of

Canada, the Committee does not think it appropriate to make recommendations pertaining

to defence disclosure.

The Committee recognizes that there are arguments on both sides of the issue of

defence disclosure. While ultimately leaving the question open, Sopinka, J. observed in

Stinchcombe, at 333 that

the defence has no obligation to assist the prosecution and is entitled to

assume a purely adversarial role toward the prosecution. The absence of a
duty to disclose can, therefore, be justified as being consistent with this role.

The Committee also notes that disclosure obligations by the defence may be precluded by

the solicitor-client privilege. Some limitations to this privilege have been recognized in

recent cases, although only in relation to the need to establish the innocence of an accused,

or to permit an accused to answer part of the prosecution's case: see R. v. Dunbar and
 -177-

Logan (1982), 68 C.C.C. (2d) 13 (Ont. C.A.); R. v. Barton, [1973] 1 W.L.R. 115; R. v.

Seaboyer, R. v. Gayme (1992), 7 C.R. (4th) 117 at 136 148 (S.C.C.).

On the other hand, some jurisdictions do require varying degrees of disclosure by the

defence. Professors La Fave and Israel comment on the American cases as follows:

Few courts would disagree with the general policy that, subject to
constitutional limitations, discovery should be a "two-way street", neither
"according to one party an unfair advantage nor placing the other at a
disadvantage." The difficulty arises in determining the precise content of this
policy as applied to the prosecution's right of discovery from the defence.
Courts disagree initially as to the extent to which the defendant's
constitutional rights preclude full reciprocity in prosecution discovery. They
also disagree as to how much reciprocity is needed to preserve an adversarial
balance between the prosecution and the defence.56 [footnotes omitted]

The United States Supreme Court has held, in Williams v. Florida, 399 U.S. 108

(1970), that reciprocal disclosure obligations, requiring the defence to disclose relevant

material prior to trial, do not violate the "due process clause" of the United States

Constitution. Although the particular facts of the case involved only a requirement that an

alibi be disclosed in advance, the language used by the majority was characterized by the

dissent, and subsequently seen, as sufficiently broad to include mandatory disclosure by the

defence more generally.57 The Court has held, however, that defence obligations to

disclose, unaccompanied by corresponding disclosure obligations upon the prosecution, are

unconstitutional.58

Many American States have statutes requiring varying degrees of pre-trial disclosure

by the defence.59 The United States Federal Rules of Criminal Procedure, Rules 12 and 16,

56 La Fave and Israel, Criminal Procedure (1984), Vol. 2, at p. 510, as updated.

57 The Court has also held that it is constitutionally permissible to prevent a defence witness from testifying
at trial if proper defence disclosure pertaining to that witness has not been made: United States v. Nobles, 422
U.S. 241 (1975); Taylor v. Illinois, 108 S.Ct. 646 (1988); Michigan v. Lucas, 111 S.Ct. 1743 (1991).

58 Wardius v. Oregon, 412 U.S. 470 (1973).

59 La Fave and Israel, supra, at p. 517.

 -178-

require pre-trial disclosure by the defence regarding alibis, the insanity defence, scientific

reports, and documents or exhibits which the defence intends to introduce at trial.60 In the

United Kingdom, in 1987, Rules of Court were enacted61 requiring both the prosecution

and the defence to disclose, "as soon as practicable" following committal for trial, written

summaries or reports of any expert evidence to be called at trial. Failure by either party

to disclose as required results in that party being unable to adduce the expert evidence

without leave of the court. The Australian Institute of Judicial Administration has

recommended mandatory pre-trial disclosure by both the prosecution and the defence in

complex criminal trials.62 Even in Canada, it may be said that there is a practical burden

to disclose alibi evidence in advance, given that the lateness of a proffered alibi is a factor

for the jury to consider.63

By making no recommendation pertaining to disclosure by the defence, the

Committee is not thereby suggesting that the defence should never disclose its case, or parts

of it, in advance. The defence of alibi is one obvious example of the importance of some

early indication of the defence position. It may also be desirable to disclose a defence

expert report that will inevitably occasion an unwanted interruption in a trial if not disclosed

in advance. Further, in the recommendations that follow pertaining to both disclosure and

resolution discussions, the Committee will emphasize the importance of ongoing dialogue

between Crown and defence counsel, aimed at narrowing issues, reaching agreements where

possible, and thereby expediting the proceedings. Clearly, however, discussions of this sort

cannot occur unless there is a willingness to acknowledge in advance that some potential

60 Fed. Rules Cr. Proc., Rules 12.1, 12.2, and 16(l)(b) 18 U.S.C.A. The American Bar Association Standards
of Criminal Justice (3rd ed. 1991), provide, in Standard 4-4.5, "Compliance with Discovery Procedure", that,
"Defence counsel should make reasonably diligent effort to comply with a legally proper discovery request."

61 The Rules were enacted pursuant to authority granted by ss. 84(1) and 86 of the Supreme Court Act, 1981
and s. 81 of the Police and Criminal Evidence Act 1984, s. 81.

62 M. Aronson, Managing Complex Criminal Trials: Refor of the Rules of Evidence and Procedure (1992). See
also M. Aronson, "Complex Criminal Trials: A1JA Report" (1992), 66 A.LJ. 825; A. L.-T. Choo, "Reform of
Evidence Law in Australia", [1993] Crim. L. R. 268, at p. 270.

63 See, for example, Russell v. The King (1936), 61 C.C.C. 28 at 32; R. v. Dunbar and Logan (1982), 68 C.C.C.
(2d) 13 (Ont. C.A.); R. v. Partington (1985), 20 C.C.C. (3d) 184 (Ont. C.A.).
 -179-

issues will or will not be contested. See, for example, R. v. Kutynec (1992), 70 C.C.C. (3d)

289 at 296, where the Court of Appeal stated as follov's:

In the interests of conducting an orderly trial, the trial judge is entitled to

insist, and should insist, that defence counsel state his or her position on
possible Charter issues either before or at the outset of the trial.

In addition, the Committee recognizes that early disclosure by the defence may, on

occasion, be in an accused person's best interests. For example, where the charges laid are

not serious, evidence that might be relevant in mitigation at trial may also, if disclosed early,

persuade Crown counsel well before trial that it is not in the public interest that the case

proceed. Or, if the defence evidence provides a complete answer to the Crown's case, many

accused would no doubt prefer to avoid the ordeal of a trial altogether, rather than exercise

the right to remain silent until the Crown builds a case that calls for an answer. Ultimately,

the Committee again relies upon defence counsel to discuss each case in advance

responsibly, providing whatever information is necessary for the proceedings to be both as

fair and as expeditious as possible.

34. The Committee is of the opinion that it is inappropriate for any counsel to give disclosure

materials to the public. Counsel would not be acting responsibly as an officer of the Court if

he or she did so.

35. The Committee is of the opinion that defence counsel should maintain custody or control

over disclosure materials, so that copies of such materials are not improperly disseminated.

Special arrangements may be made between defence and Crown counsel, with respect to

maintaining control over disclosure materials where an accused is in custody, and the volume

of material disclosed makes it impractical for defence counsel to be present while the material

is reviewed.

In the Committee's view, the two preceding statements responsibly reconcile the need

to provide full disclosure with the need to prevent misuse of disclosure material. These

statements are also in furtherance of "the obligation on defence counsel as officers of the
 -180-

court to act responsibly" with respect to disclosure, recognized generally by the Supreme

Court in Stinchcombe, supra, at 341.

The Committee has heard of appalling instances where disclosure briefs containing

highly sensitive material have been made publicly available: for example, the statement of

a child complainant in an allegation of sexual assault subsequently circulated at the

complainant's school. Or, in penitentiary investigations, statements of potential Crown

witnesses have been posted on bulletin boards to be perused by the general inmate

population. Occurrences of this type are, in the Committee's view, flagrant abuses of the

right to disclosure. The devastating effect which such conduct can have on the privacy or

safety of the victims or witnesses concerned is obvious.

Of equal concern is the chilling effect which even isolated incidents of this type can

have on potential witnesses. The administration of justice is highly dependent upon

witnesses coming forward to provide information that will lead to the proper conviction and

punishment of those who have committed crimes. For a witness, courtroom proceedings

may be inconvenient, or even traumatic, in the best of circumstances. Therefore, even

occasional misuse of disclosure materials can potentially persuade large numbers of already

reluctant witnesses to refrain from co-operating for fear that they will suffer the

consequences of similar misuse.

Publicly disseminating disclosure material may pose other difficulties. It may, in

some circumstances, be a matter of concern for the Law Society. Or, if a court-ordered

publication ban is in effect, it may come perilously close to contempt of court. If

considerable adverse publicity is generated thereby, publicly disseminating disclosure

material may also necessitate a change of venue to ensure a fair trial. In this way, the

unnecessary public dissemination of disclosure materials may deprive the community in

which an alleged crime occurred of their presumptive right to sit in judgment of it, and may

greatly inconvenience all those associated with the prosecution: see the American Bar

Association Standards for Criminal Justice (3rd ed. 1991), Standard 4-1.4, "Public Statements."
 -181-

The privacy of the victim and any other witnesses must yield to preparing a full

answer and defence. But it need not yield any further. The Committee considers that,

provided the making of full answer and defence is not impaired, it is desirable to permit

limitations on the use of disclosure materials that recognize the privacy interests of victims

and witnesses. Thus, the Committee's present view provides defence counsel full latitude

to properly prepare for a case. It is trite to say that an accused is tried in a courtroom, and

not in the forum of public opinion. Making full answer and defence, therefore, entails only

such use of the disclosure material as is necessary to answer the charges against an accused

with arguments suitable to, or evidence admissible in, courtroom proceedings. This may

include, for example, providing some disclosure materials to defence investigators or experts

retained by the defence. It does not require the provision of disclosure materials to the

public at large. Submissions on this issue, received by the Committee from defence counsel,

were virtually unanimous in recognizing the dangers of disseminating disclosure materials

to the general public.

However, the representatives of the defence Bar on the Committee felt that

expressions of opinion 34 and 35 were too restrictive, and could occasionally present

dilemmas for defence counsel. The members of the defence Bar would have preferred that

these expressions of opinion be framed to express the view that when disclosure material

is provided to defence counsel he or she has the responsibility to ensure that these materials

are not improperly disseminated to the public. Disclosure documents should contain the

statement that when defence counsel comes to consider whether disclosure materials leave

his or her custody and control, regard must be had for the safety and undue embarrassment

of the witnesses whose statements are provided, and for any other person named therein,

as well as for the protection of the client from those who would become informants by

virtue of their opportunity to read from the disclosure materials the case against the client.

In the opinion of the representatives of the defence Bar on the Committee, the

statement accompanying disclosure material should also make clear that by accepting the

disclosure material the defence counsel is undertaking not to improperly disseminate it. It

would be recognized that defence counsel may normally disseminate disclosure materials to
 -182-

third parties whose examination or possession of the material is in good faith necessary to

prepare and conduct the defence.

In the opinion of the representatives of the defence Bar on the Committee, it should

also be recognized that an accused should always be permitted a copy of his or her own

statement. To suggest that an accused may not have a copy of his or her own words which

are so often critical to the defence is, in the opinion of the defence Bar representatives on

the Committee, fundamentally wrong and contrary to the spirit of s. 603 of the Criminal

Code, which permits an accused, after having been committed for trial, to receive, upon

payment of a reasonable fee, a copy of his or her statement.

However, the defence Bar representatives on the Committee are also of the view that

where disclosure material is disseminated to the accused or third parties, defence counsel

would have an obligation to ensure that such persons are aware of the obligation not to

further disseminate the materials except as directed by defence counsel.

The second statement of the Committee, above, seeks to fulfil the same aims as the

first, by placing a different duty upon defence counsel. Although the submissions received

by defence counsel on this point varied, some eminent defence counsel from different parts

of the province advised that it was their practice never to leave disclosure material in the

unsupervised possession of the accused. Defence counsel, as officers of the Court, can, of

course, be expected to use the disclosure material in accordance with both of the present

statements of the Committee, and to give an undertaking to that effect.64 An accused

person, or other persons closely identifying with the interests of the accused, cannot. In this

regard, counsel are more than mere agents of an accused person, and, thus, are not bound

to turn over such material to an accused upon request.65 For example, while an accused

must ultimately know the identity of every Crown witness, and the contents of their

statements, it would rarely, if ever, be necessary for an accused person to know the present

64 See also Vokey, infra, at 108 (C.C.C.).

65 As stated in the American Bar Association Standards of Criminal Justice (3rd. ed. 1991), Standard 4-1.2(e):
"Defence counsel is the professional representative of the accused, not the accused's alter ego."
 -183-

address of a Crown witness. The Committee is of the view that its second statement, like

the first, does not, in any way, affect the ability of defence counsel to discuss a case fully

with an accused, thereby facilitating detailed preparation of the defence. Both statements

prevent only use of the materials that poses a risk of their being improperly circulated.

Neither statement, however, prevents Crown counsel, in his or her discretion, from

concluding that any particular disclosure material, such as, for example, a meteorological

report, poses no risk of misuse, and may therefore be left in the possession of an accused

person himself or herself.

The Committee is of the view that even an accused's statement may contain highly

sensitive information, and, accordingly, should be subject to the same controls as other

disclosure material. For example, an accused charged with sexual assault may in his or her

statement allege that the complainant was the aggressor, and the statement may contain

allegations as to the sexual misconduct of the complainant. In R. v. Savion and Mizrahi

(1980), 52 C.C.C. (2d) 276 (Ont. C.A.), Zuber, J.A., speaking for the Court of Appeal, held

that the word "statement" in s. 531 (now s. 603) of the Code applied to statements of an

accused to the police. Section 531 (now s. 603) reads in part as follows:

603. An accused is entitled, after he has been ordered to stand trial or at his
trial,

(a) to inspect without charge the indictment, his own statement, the
evidence and the exhibits, if any; and

(b) to receive, on payment of a reasonable fee determined in

accordance with a tariff of fees fixed or approved by the Attorney
General of the province, a copy....

(ii) of his own statement, if any ....

The Court concluded "that the appellants had a right to inspect, and to receive copies

of their statements and that this right was denied to them" (p. 283). Zuber, J.A., in defining

the issues in the appeal, said at 280:

 -184-

It is the position of the appellants that apart altogether from whatever the
attitude of the Crown might have been towards the statements, the appellants
had a legitimate interest in their production.

Zuber, J.A., on several occasions used the word "produce" or "production."

Although the Court stated that the appellants had a right to inspect and receive
copies of their statements, the words of s. 531 (now s. 603) appear to be plain that the
accused, without charge, has a right to inspect copies of his or her own statement and, upon
payment of a reasonable fee, to receive a copy of his or her own statement. Further, the
provisions of s. 531 (now s. 603) apply only after the accused has been ordered to stand trial,
or at trial. In any event, the question of the propriety of leaving the accused person's
statement in the unsupervised possession of the accused person himself or herself prior to
election or plea was apparently not an issue in Savion and Mizrahi, supra, and was not
addressed by the Court.

Moreover, the Committee observes that the recommendations with respect to

supplying copies of the accused's statement, contemplated by paragraph 12 of the
Committee's recommendations, in some respects far exceed the right of an accused to
inspect or receive a copy of his or her own statement, provided for in s. 531 (now s. 603)
of the Code. And the prohibition against leaving an accused's own statement in his or her
unsupervised possession, which, in the Committee's opinion, would be proper, would not in
any way impair the accused's constitutional rights to make full answer and defence, because
counsel actually conducting the defence would have it as soon as disclosure were made.

3. Disclosure and Summary Conviction Offences

36. The Committee recommends that the nature and extent of disclosure should not vary
based on whether the charge was prosecuted by way of indictment, summary conviction
procedure, or prosecuted under the Provincial Offences Act.
 -185-

37. The Committee recommends that in all summary conviction matters under the Criminal

Code which are commenced by a private complainant, the Crown should intemene to either

withdraw the charge or to conduct the prosecution. If the Attorney General intervenes and

conducts the prosecution, disclosure should be made in the same way as any other prosecution.

Nothing herein is to be construed as precluding the Attorney General from assuming carriage

of prosecutions under the Provincial Offences Act in appropriate cases, for example, under the

Environmental Protection Act.

The Stinchcombe case deals only with indictable offences. The Supreme Court stated

that many of the factors it had canvassed may not apply, or may apply with less impact, in

summary conviction offences. The Court also noted that the content of the right to make

full answer and defence under s. 7 of the Charter may be of a more limited nature in the

context of summary conviction matters, given the great number and variety of statutes which

create such offences. Ultimately, the Court found it unnecessary to decide the point. The

Court did, however, say, at 342:

Pending a decision on that issue, the voluntary disclosure which has been
taking place through the co-operation of Crown counsel will no doubt
continue. Continuation and extension of this practice may eliminate the
necessity for a decision on the issue by this Court.

Having regard to the Supreme Court's observation as to the desirability of continued

and extended co-operation with respect to disclosure, the Committee considers that, as a

matter of policy for the Attorney General and his or her agents, the principle of disclosure

should apply also to summary conviction offences and to prosecutions under the Provincial

Offences Act. In R. v. Kutynec, supra, at 299, the Court of Appeal for Ontario has stated that

"Disclosure is most essential in summary conviction trials because the accused does not have

the advantage of a preliminary hearing where counsel can explore possible Charter issues

and lay the groundwork for a Charter motion". See also Commissioner of Police v.

Ombudsman, [1988] 1 N.Z.L.R. 385 (C.A.).

 -186-

In summary conviction and Provincial Offences Act prosecutions, proper disclosure

will, as suggested by Sopinka, J., in Stinchcombe, supra, no doubt vary with the nature of the

statute defining the offence, and the circumstances of the prosecution. Accordingly, the

detailed recommendations with respect to disclosure that follow may have varying degrees

of applicability and/or importance. In most summary conviction prosecutions and

prosecutions under the Provincial Offences Act, the disclosure will be simple and brief. On

the other hand, certain matters, for example, some prosecutions under the Environmental

Protection Act, R.S.O. 1990, c. E-19, or the Canadian Environmental Protection Act, R.S.C.

1985, c. C-15.3,66 may be highly complex, and may involve very serious allegations with

grave consequences. In such cases, full disclosure may be more lengthy and complex, and

its significance may be heightened.

In Ontario, there are no longer private prosecutions for indictable offences. This is

consistent with the trend, in other jurisdictions, away from private prosecutions.67 The

Ontario Crown Attorneys Act, R.S.O. 1990, c. C-49, s. 11(b) states that Crown counsel "shall"

intervene and conduct both preliminary hearings and trials in respect of indictable criminal

matters. The situation is, however, different at present with respect to summary conviction

matters. Sections 11(d) and 11(e) of the Crown Attorneys Act, provide that the Crown

Attorney shall:

(d) watch over cases conducted by private prosecutors and, without

unnecessarily interfering with private individuals who wish in such cases to
prosecute, assume wholly the conduct of the case where justice towards the
accused seems to demand his or her interposition.

66 See "Offences and Punishments", ss. 111-134.

67 There have been public prosecutors in Ontario at least since the Upper Canada County Attorneys Act
(1857), 20 Viet., c. 59. The New Zealand Law Commission noted in Preliminary Paper No. 12, The Prosecution
of Offences (1990), at p. 3 that the absence of public prosecutors in New Zealand "is almost unique even among
the countries with a criminal justice system based on common law traditions." England adopted a system of
public prosecutors, the Crown Prosecution Service, by passing the Prosecution of Offences Act, 1985, 33 Eliz. II,
c. 23. See also Edwards, The Attorney General, Politics and the Public Interest, supra, at pp. 2-3. Private
prosecutions are illegal in some American jurisdictions. See, for example, McDonald v. Goldstein, 83 N.Y.S. 2d
620, 622 (1948); aff'd 79 N.Y.S. 2d 690; Pugach v. Klein 193 F. Supp. 630, 634-635 (1961); People ex rel. Daley
v. Moran, 445 N.E. 2d 270, 272 (Ill.S.Ct. 1983); Manning v. Municipal Court of Roxbury Dist., 361 N.E. 2d 1274,
1276-77 (Mass. Sup. Jdcl. Ct. 1977).
 -187-

(e) where in his or her opinion the public interest so requires, conduct
proceedings in respect of any provincial offence or offence punishable on
summary conviction, [emphasis added]

In the Committee's view, Re Bradley and The Queen (1975), 24 C.C.C. (2d) 482, aptly

demonstrates how the interests of a private prosecutor, and the public interest in the

administration of criminal justice, may be manifestly divergent, just as the interests of a

victim and the Crown may diverge. Thus, the presence of Crown counsel in summary

conviction criminal matters is, in the Committee's view, always necessary to ensure that, in

the event of such divergence, the public interest prevails.68 It is the view of the Committee

that Crown counsel should intervene in all summary conviction criminal cases so that the

accused person faces a prosecutor with the added duty to act fairly as a "minister of justice."

The procedural guarantees accorded to an accused person by the Charter

demonstrate, in the Committee's view, the need for criminal prosecutions to be conducted

by Crown counsel, rather than by private litigants. A procedural right such as disclosure,

having attained constitutional importance, cannot be undermined, even inadvertently, by

private prosecutions in which the importance of the right may not be appreciated by the

prosecutor, or in which there may exist no systematic method on the part of the prosecution

of ensuring that all relevant material is disclosed to the defence. The Committee has been

informed that, in some jurisdictions, Crown counsel who intervenes in a private prosecution

asks the police to obtain witness statements. These statements are then used by Crown

counsel, both for trial preparation, and for disclosure purposes. In the Committee's view,

this is a salutary practice that accords due respect to the constitutional rights of an accused

person. In the Committee's view, the accused's capacity to enjoy such constitutional rights

cannot turn on the varying practices of private prosecutors. The involvement of Crown

counsel is warranted in every summary conviction criminal prosecution to ensure that these

rights are fully and consistently respected.

Z.O
Private prosecutions have, since the early 19th century, been criticized on this and other grounds. Among
the other criticisms are that private prosecutions may be poorly conducted, are open to abuse, impose a financial
burden on a victim to redress what is in large measure a public wrong, and leave the enforcement of the criminal
law "to the whim or strength of feelings of the injured party." See, generally, Edwards, The Attorney General,
Politics and the Public Interest, supra, at pp. 2-3, and Edwards, The Law Officers of the Crown, supra, at p. 338.
 -188-

In addition, the Committee's own recommendations lead it to make the present one.

The Committee makes, in this Report, detailed recommendations pertaining to charge

screening, disclosure, and resolution discussions, all of which are aimed at enhancing the

fairness and efficiency of the vitally important early stages of the criminal process. To the

extent that the Committee's recommendations are implemented, they will soon become

standard practice for Crown counsel. Therefore, the Committee recommends that Crown

counsel intervene in all criminal summary conviction prosecutions, to ensure that all accused

persons can benefit from the advantages accorded to him or her, and to ensure that the

administration of justice generally can benefit from the entire breadth of the Committee's

recommendations.

The Criminal Code places no limitations upon when, in the proper exercise of his or

her discretion, an agent of the Attorney General may intervene in a private prosecution.

The general power of Crown counsel to intervene and assume complete control of a

prosecution is undoubted after the Court of Appeal's decision in Bradley, supra.

Accordingly, the Committee is of the view that the Attorney General should issue a policy

statement indicating that, having regard to the factors discussed above, it is desirable, in the

public interest, and in the interests of justice towards the accused, to intervene whenever a

summary conviction private prosecution has been commenced under the provisions of the

Criminal Code, and either withdraw it, if warranted, in accordance with the Committee's

recommendations on charge screening, or assume carriage of it.

The Committee's recommendation 37 does not affect the right of the Attorney

General to intervene, where appropriate, and assume carriage of a private prosecution under

the Provincial Offences Act. Where the Crown does intervene in a Provincial Offences Act

prosecution, recommendation 36 ensures that full disclosure must be made. However, even

where the Attorney General does not intervene, the Committee is of the opinion that the

private prosecutor must, in fairness to an accused person, ensure that full disclosure is made

in accordance with the Committee's recommendations.

 -189-

The Committee's recommendations with respect to private prosecutions, under either

the Criminal Code, or the Provincial Offences Act or any other Act, extend only to the

conduct of prosecutions, not their commencement. The Committee is not in favour of

removing the power of a private citizen to commence a prosecution by swearing an

information before a justice of the peace. As discussed in Chapter II, this power is an

important part of a system of checks and balances, which ensures that acts alleged to be

criminal are brought to the attention of the courts, and which prevents abuse of authority

by public officials through failure to prosecute where warranted.

4. Other Recommendations

38. The Committee recommends that the Attorney’ General should require reasonable efforts

from his or her agents to determine the sufficiency of disclosure. It is recognized that the

obligation to provide disclosure is ongoing.

The Supreme Court of Canada, in Stinchcombe, clearly places the duty to disclose to

an accused upon the Crown. The Committee has earlier in this chapter recognized the duty

of the police to disclose to the Crown, so as to enable the Crown to both conduct the

prosecution properly, and to make full disclosure to the defence. The present

recommendation places a corresponding duty upon Crown counsel to take reasonable steps

to determine the sufficiency of that disclosure.69

The present recommendation directly parallels, in the context of disclosure, a similar

recommendation made in Chapter II in the context of charge screening. In practical terms,

review by Crown counsel to determine the sufficiency of information for both charge

screening and disclosure should be done simultaneously. Thus, the charge screening

recommendation, and the commentary which follows it, are both directly applicable to the

present one, and reference should be made to them. The commentary in the earlier

69 The American Bar Association Standards for Criminal Justice (3rd. ed. 1992), provide in Standard 3-3.11
that, "A prosecutor should not fail to make a reasonably diligent effort to comply with a legally proper discovery
request."
 -190-

recommendation discusses what, in the Committee's view, are the "reasonable efforts"

required of Crown counsel in determining the sufficiency of the information provided by the

police.

The duty recognized by the present recommendation may be discharged quite

efficiently by Crown counsel. Over time, the range of material to be disclosed in many kinds

of routine cases will become well understood. Therefore, investigators in these cases will

be readily able to provide to Crown counsel all of the necessary disclosure material. Crown

counsel will, in turn, have to spend little or no time reviewing such routine disclosure

material, thereby freeing up time for other prosecutorial duties. Avoiding purely routine

reviews of disclosure material in this way could also keep to a minimum the need to hire

additional Crown counsel because of disclosure obligations.

39. The Committee recommends that all accused persons be advised of their right to

disclosure, and where disclosure may be obtained, by written notice on all release forms or

summonses.

In light of the fact that disclosure is now a constitutional right in an accused person,

and a right which is necessarily to be accorded very early in the criminal trial process, the

Committee is of the view that all accused persons should be informed of the right. In the

Committee's view, pre-printed release forms or summonses can be used to accomplish this

objective. Every accused in a criminal case is issued either a release form or a summons.

Therefore, printing the advice on all such forms will ensure that every accused person has

adequate notice of his or her constitutional right. Advising an accused in this manner will

entail the addition of only a line or two of print on the release forms or summonses and will

not, in the Committee's view, undermine the original purpose of such forms. Further,

advising an accused of his or her right to disclosure on these forms will permit an accused

to be so informed without any additional effort on the part of either the Crown or the

police.
 -191-

The advice given on the pre-printed release forms or summonses need not be

detailed. It need simply state something like the following:

You have the right to disclosure from the Crown Attorney of all information
that is relevant to the charges you are facing. Disclosure may assist you in
responding to those charges. Disclosure should be requested from the Office
of the Crown Attorney.

40. As a general rule, the Committee is in favour of disclosure in writing.

As a practical matter, the Committee recognizes that disclosure in writing is usually

the most efficient method of according an accused his or her constitutional rights. The

detailed recommendations that follow speak, for the most part, of providing copies of

relevant material. Most information relevant to any particular prosecution is accumulated

in some written form, and, therefore, can be readily photocopied and provided. Written

disclosure, with a record kept of what documents have been disclosed, can also greatly

reduce the potential for later misunderstandings about what has and has not been disclosed.

Written disclosure is also convenient for both parties. Defence counsel can review the

material in a convenient fashion and, wherever necessary, do so in consultation with the

client; Crown counsel can review the same material conveniently, confident that no

disclosure issue with respect to the information contained in that material will arise at trial.

While the Committee recognizes that, as a practical matter, disclosure will, in most

cases, be accomplished in writing, there is, in the Committee's view, no inflexible

constitutional obligation to provide disclosure in this manner.70 As a constitutional

70 The Court of Appeal for Ontario recently addressed this issue in R. v. Collier, 17 November, 1992, as yet
unreported. The issue in Collier was the alleged non-disclosure of certain surveillance reports, of which defence
counsel was aware at the time of trial. The Court held as follows (at pp. 4-5):

Proper disclosure of the reports did not necessitate providing copies of the reports,
particularly in the absence of any suggestion that copies were requested.... The Crown
could fulfil! its obligation to disclose all material in the reports without actually
providing copies to the defence. In so holding, we do not suggest that defence counsel
would not be entitled to copies of the actual reports if requested.... We mean only that
non-disclosure cannot be equated with a failure to provide copies of the actual reports.

See also R. v. Luff (1992), 11 C.R.R. (2d) 356 (Nfld. CA.); R. v. Ford, 26 January, 1993, unreported (B.C.CA).
 -192-

requirement, "disclosure" retains its plain and ordinary meaning: it is not necessarily

synonymous with providing copies. Further, oral disclosure may, on occasion, be more

convenient, for example, when defence counsel wishes to obtain the salient features of a

minor case through a quick conversation with Crown counsel during a short recess.

There are a number of practical aspects to the general practice of providing

disclosure in writing. For example, the Committee respectfully agrees with the following

observations of the Newfoundland Court of Appeal in R. v. W.J.V. (1992), 72 C.C.C. (3d)

97 at 108:

The manner of disclosure must, for now, be regarded as one of reviewable

discretion on the part of Crown counsel. It ought generally to be
accomplished by the delivery of photostatic copies of the materials required
to be disclosed. There will be circumstances where the provision of
photostatic copies is not desirable. In such cases the material should be
displayed to defence counsel in a place and under circumstances where a
meaningful examination of the displayed material may be made. Detailed
notes should be permitted. A verbatim reproduction by hand of documents
would generally not be permitted where Crown counsel, in the exercise of his
or her reviewable discretion, considers that photostatic copies of those
documents should not be provided. In most cases, no distinction is to be
made between a photostatic copy and a handwritten verbatim reproduction....

Common sense should be exercised by Crown counsel in disclosure and by

defence counsel in expectation.71 [emphasis added]

In addition, criminal investigations often result in the accumulation of material in

other than written form. For example, the Committee has recommended above that audio

and video recordings be utilized. Where audio or video recordings are part of the disclosure

materials, the Committee is of the view that providing a copy of the recording is sufficient.

Statements that are video or audio recorded need not be reduced to writing for purposes

of disclosure. Unlike mere oral statements, a recording can be physically given to the

defence, for example, by providing a video cassette, the receipt of which can be

71 This case is also reported as R. v. Vokey (1992), 14 C.R. (4th) 311. See p. 324. The case is on appeal to
the Supreme Court of Canada. See also R. v. Luff, supra R. v. Dohan, 19 November, 1992, unreported
(N.S.S.C.T.D.).
 -193-

acknowledged in writing, thus creating a record of disclosure to prevent subsequent

misunderstandings.

E. Recommendations Relevant to a Proposed New Disclosure Directive

The Committee has concluded that, in light of the judgment of the Supreme Court of

Canada in R. v. Stinchcombe, supra, the Attorney General's present directive on disclosure

should be replaced by a new directive. The Committee, in drafting its recommendations

with respect to the contents of the new directive, has been guided by the general philosophy

of the Stinchcombe decision, but has endeavoured to flesh out the general rules with respect

to Crown disclosure enunciated in that case. The Committee is of the view that Crown and

defence counsel, accused persons, police officers, and victims and witnesses can all benefit

from a detailed directive on the particular types of material that fall within the general

statements of the disclosure rights enunciated in Stinchcombe. The Committee, in some

instances, in the formulation of specific recommendations, has gone somewhat beyond the

express requirements with respect to disclosure by the Crown mandated by Stinchcombe.

However, the Committee is satisfied that these specific requirements are within the spirit

of Stinchcombe.

The Law Reform Commission of Canada, in its 1984 report on Disclosure by the

Prosecution, recommended the enactment of provisions in the Criminal Code setting out the

disclosure required to be made by the Crown. The Marshall Commission also proposed an

extensive system of disclosure with respect to indictable offences to be contained in

legislation.

The Law Reform Commission of Canada gave a number of reasons for

recommending that the disclosure required to be made by the Crown should be contained

in legislation. The Law Reform Commission was of the view that the importance of the

subject of disclosure warranted the enactment of legislation setting out the disclosure

required to be made by the Crown. Furthermore, it was of the opinion that setting out, in
 -194-

legislation, the disclosure that the Crown was required to make would result in national

uniformity and, also, compliance with respect to the disclosure to be made by the Crown.

However, as Mr. Justice Sopinka pointed out in Stinchcombe, no legislative action has been

taken, and legislators have been content to leave the development of the law with respect

to disclosure by the Crown to the courts. This has resulted in disclosure being elevated to

its current status as a constitutional right, and thus, in large measure, has obviated the need

for legislation.

Although legislation detailing the disclosure to be made by the Crown may have

certain advantages, it also has disadvantages. The minimum disclosure required by the

legislation tends, in practice, to become the maximum, given that no action can be taken

pursuant to the statute if its standards are met. Further, the amendment of legislation is

often a slow process, given the competition among many pressing issues for Parliament's

limited legislative time, and given the need for broad consultation among the provinces. A

directive of the Attorney General with respect to the disclosure that the Crown is required

to make has the advantage of being more easily amended to meet new conditions and to

keep abreast of technological advances. A directive can also be more responsive to

circumstances in the administration of criminal justice that may be unique to Ontario.

While a directive is not legislation, the Committee is completely satisfied that a

directive by the Attorney General with respect to the disclosure to be made by the Crown

will be followed by all Crown counsel in Ontario. Indeed, as a directive of the chief law

officer of the Crown in Ontario, it is binding upon all Ontario Crown counsel. To ensure

that the contents of the directive are a matter of public knowledge, the Committee

recommends that the Directive on Disclosure be tabled in the Legislature and gazetted.

The Committee has endeavoured, in its recommendations with respect to disclosure,

to follow the spirit of Stinchcombe, and also to provide illustrations with respect to its

application. We consider that merely restating the principles of disclosure set forth in

Stinchcombe would not provide sufficient assistance to the police, Crown counsel, and

defence counsel in the application of those principles.

 -195-

The Committee realizes that disclosure with respect to certain matters may fall under

more than one paragraph in the Committee's recommendations with respect to disclosure.

The Committee is of the view, however, that it is desirable to highlight certain areas of

disclosure. Some of the Committee's recommendations with respect to disclosure are self-

explanatory and require little comment; other recommendations require more extensive

comment.

Finally, it will be noted that reference is made throughout the recommendations for

a proposed new directive to "copies" of various documents or other items, such as video or

audio recordings, that are to be disclosed by the Crown. Any such reference to copies

means true copies. Clearly full disclosure as required by the Stinchcombe decision and the

proposed directive has not been made if the copies of documents or other items disclosed

are not exact reproductions of the original documents or other items in the possession of

the Crown. The requirement that all copies disclosed are to be true copies does not,

however, prevent the Crown from taking proper steps, such as editing the material disclosed,

where such withholding of disclosure is authorized by the Stinchcombe case or the provisions

of the proposed new directive.

41. The Committee recommends that the Attorney General issue a new Directive on

Disclosure, based upon the following recommendations and principles.

1. Purpose and General Principles of Disclosure

1. The purpose of disclosure is to assist in guaranteeing the accused's common law and
constitutional rights to a fair trial and to make full answer and defence.

The purpose of disclosure is discussed generally in the introduction to this chapter.

Reference may also be made to Stinchcombe, supra, at 336.

 -196-

2. Timely and full disclosure by Crown counsel, when diligently utilized by the defence,
benefits both the accused and the administration of justice as a whole. Among these
benefits are:

(a) the resolution of non-contentious and time-consuming issues in advance of the

preliminary hearing or the trial, which ensures the most efficient use of court
time;

(b) the waiver or shortening of preliminary hearings and the shortening of trials; and

(c) early resolution of cases, including, where appropriate, the entry of pleas of guilty
or the withdrawal of charges.

Commentary;

Full and timely disclosure undoubtedly benefits an accused person, by allowing him

or her the fullest opportunity to exercise the constitutional right to make full answer and

defence. However, the benefits of full disclosure extend beyond the interests of an accused

person. Full disclosure, in the Committee's view, also enhances the administration of justice

as a whole. Paragraph 2 of the proposed new directive recognizes the full breadth of the

benefits of disclosure. These benefits are also discussed more fully in the introduction to

this chapter.

While the Crown is obliged to provide full disclosure to the defence, benefits do not,

of course, accrue to the administration of justice as a whole without diligent utilization of

the disclosure materials by defence counsel. Such disclosure material should, therefore, be

promptly requested by the defence wherever necessary, and, when provided by the Crown,

should be carefully reviewed at the earliest opportunity. If the disclosure received seems

inadequate for any reason, follow up requests should be made. Disclosure received and

promptly reviewed should then be used in formulating positions for early decisions such as

electing the mode of trial, entering a plea, and conducting resolution discussions and pre-

hearing conferences. Disclosure received and reviewed may also suggest that further
 -197-

investigation by the defence is advisable.72 In addition, once the trial has commenced,

defence counsel has a heightened duty to practise effective advocacy, by limiting the use of

extraneous materials that may be included in the disclosure. This may require closer

attention to the live issues at trial. Crown counsel and, indeed, the trial judge should

likewise be vigilant to ensure that generous disclosure does not unnecessarily lengthen trials

through the presentation of irrelevant information.

3. The governing principle is that Crown counsel is under a duty to disclose all information
in his or her possession relevant to the guilt or innocence of the accused, unless the
information is excluded from disclosure by a legal privilege. Crown counsel's duty to
disclose any relevant information in his or her possession, whether favourable or
unfavourable to the accused, extends to any information which is not clearly irrelevant.
All decisions by Crown counsel not to disclose on grounds of either privilege or relevance
are reviewable by the trial judge.

Commentary;

Possession and Control

The Committee is of the view that relevant information under the control of Crown

counsel is in Crown counsel's possession. Control has been defined, in one dictionary, in

part, as follows: "Control means the fact of controlling, or of checking and directing action;

domination, command, sway" (The Shorter Oxford English Dictionary, (3rd ed.) Vol. 1, p.

385).

Clearly, the reports of expert witnesses retained by the prosecution are in the control

of Crown counsel. In R. v. Anne Rita Maguire and Others (1992), 94 Cr. App. R. 133 at 147,

the English Court of Appeal held that a forensic scientist, who is an adviser to the

prosecuting authority, is under a duty to disclose material of which he is aware and which

72 See generally, GA Martin, "Preparation for Trial", Law Society of Upper Canada Special Lectures, 1969,
at p. 222; C.N. Kates, 'The Osgoode Society Oral History Program - Comment on Preparation for Trial", The
Advocates' Society’ Journal, June, 1985, at pp. 17-21.
 -198-

may have "some bearing on the offence charged and the surrounding circumstances of the

case." The disclosure by such an adviser will be to the authority who retains him or her, and

who must in turn, subject to sensitivity, disclose the information to the defence. The Court

stated that there was no cause to distinguish between members of the prosecuting authority

and forensic scientists providing advice to that authority.

Whether information uncovered by the police in their investigation and not revealed

to Crown counsel is under the control of the Crown is, perhaps, more questionable. As the

Committee has observed above, Crown counsel and the police operate independently, albeit

co-operatively. In R. v. Gingras (1992), 71 C.C.C. (3d) 53, the Alberta Court of Appeal was

prepared to assume, for the purpose of argument, without deciding, that matters uncovered

by the police in their investigation of a crime and not revealed to Crown counsel were in

the control of Crown counsel. The Court said, at 58-59:

As we read the Stinchcombe decision, it forces the prosecutor to disclose to

defence counsel relevant matters which the investigation of the crime has
disclosed and which are within the control of the prosecution. For the sake of
argument (without deciding), we suppose that that might extend to matters
which the police have uncovered and have not revealed to the prosecutor.
None of that has any resemblance to the present case, [emphasis added]

The later case of R. v. S.E.S. et al. (1992), 100 Sask. R. 110 (Sask. C.A.), involved

among other issues, the failure of the Crown to make disclosure of certain police notes of

which Crown counsel was unaware. The Saskatchewan Court of Appeal held that the fact

that Crown counsel was not aware of the existence of the notes does not affect the

obligation of the "the Crown" to disclose all relevant material, but ultimately held that the

failure to disclose the notes could not have impaired the fairness of the trial. Vancise, J.A.,

speaking for the Court, said at page 120:

The exculpatory statement of June 4, 1986 had been provided to Crown

counsel by the police, but Crown counsel had not been informed of the
existence or contents of the notes made by Sergeant Taker. The fact that
Crown counsel was not aware of the existence of the notes does not affect the
obligation or the duty of "the Crown" to disclose all relevant material. The
 -199-

duty to disclose applies to reports and notes made by the investigating officer
or officers.

As discussed above, the police, whatever their relationship with Crown counsel, have

an independent duty as police officers to disclose to Crown counsel all relevant information

which the investigation of a crime has revealed. Crown counsel, in turn, has a duty to

disclose all relevant information to the defence in accordance with the requirements of

Stinchcombe. Therefore, the issue of whether information in the possession of the police

is in the possession or control of Crown counsel is of no moment. In the Committee's view,

the failure of the police to disclose all relevant information to Crown counsel results in a

failure in the machinery of justice. See R. v. Liverpool Crown Court, ex parte Roberts, [1986]

Crim. L. R. 622; R. v. Anne Rita Maguire and Others, supra, at 147.

From the perspective of the accused person's right to full disclosure, it makes no

difference whether it is held that relevant information discovered by the police in their

investigation of a crime, but not revealed to Crown counsel, is in the control of Crown

counsel, or whether the true principle is that the prosecution is flawed because, while Crown

counsel may not have failed in his or her duty, there has been a failure of the machinery of

justice to disclose relevant information to the defence. In any event, the accused person has

not been accorded his or right to disclosure, and is, therefore, entitled to such remedy as

may be appropriate in the circumstances.73

The Meaning of "Relevant" for Disclosure Purposes

Clearly, the word "relevant" is not to be construed narrowly, but is to be given a

liberal construction. Mr. Justice Sopinka, speaking for the Supreme Court of Canada in the

Stinchcombe case, said that the Crown is not required to produce information that is clearly

irrelevant, but should err on the side of inclusion. The Court of Appeal for Ontario has

likewise stated recently that, "the Crown should take a generous view of relevance in making

73
See R. v. W.J.V., supra, at 113 (C.C.C.).
 -200-

disclosure."74 One commentator has suggested that perhaps a better expression of the

Crown's duty to disclose relevant information would be to say that the Crown must disclose

all information except that which is clearly irrelevant.75

Paragraph 3 of the recommendations pertaining to a proposed new disclosure

directive sets out the basic obligation of Crown counsel to disclose all information in his or

her possession relevant to the guilt or innocence of the accused. Crown counsel's duty to

disclose any relevant information in his or her possession, whether favourable or

unfavourable to the accused, extends to any information which is not clearly irrelevant.

The duty to disclose applies to "information" in the possession of Crown counsel.

Information in this sense is not, of course, limited to witness statements, but includes all

relevant material that may support the Crown's case or may assist the accused. Further, the

duty to disclose relevant information is not limited to "evidence." As long as the information

is relevant, it must be disclosed, regardless of whether it can qualify as evidence in any

criminal proceedings on the charge which may follow. For example, Crown counsel may be

in possession of material that indicates an accused has, in the past, committed acts similar

to those forming the subject matter of the charges against him or her. However, the

arguments for and against the admissibility of this information at trial may be quite evenly

balanced, such that it may not be possible to say with certainty whether the information

could properly qualify as similar act evidence. None the less, the information must be

disclosed.

Sopinka, J., for the Supreme Court of Canada in Stinchcombe, supra, held that all

relevant information in the Crown's possession must be disclosed to the defence, even

though the information is not intended to be used by the Crown. Although Sopinka, J.,

provided no express definition of the word "relevant," he indicated the meaning he attached

to that word in the context of disclosure. He said:

74 R. v. Daly (1992), 57 O.A.C. 70 at 77 (C.A.).

7> G. Ferguson, "Judicial Reform of Crown Disclosure", Annotation to R. v. Stinchcombe (1992), 8 C.R. (4th)
300.
 -201-

If the information is of no use then presumably it is irrelevant and will be

excluded in the discretion of the Crown. If the information is of some use then
it is relevant and the determination as to whether it is sufficiently useful to put
into evidence should be made by the defence and not the prosecution.76
[emphasis added]

The Attorney General's Guidelines in England in relation to offences to be tried on

indictment ((1982), 74 Cr. App. R. 302) provide, in part: "(2) In all cases which are due to

be committed for trial, all unused material should normally (i.e. subject to the discretionary

exception mentioned in paragraph (6)) be made available to the defence solicitor if it has

some bearing on the offence(s) charged and the surrounding circumstances of the case"

[emphasis added].

The New Zealand Law Commission has also addressed the meaning of relevant in

the context of disclosure in the following terms:

The adjective "relevant," which ... is used to describe the kind of information
that should be made available, has a plain enough meaning. However, for the
avoidance of doubt it is used to describe information which tends to support
or rebut or has a bearing upon any element of the prosecution case.77

In the Committee's view, the word "relevant" in the context of disclosure is to be

given a broad and liberal meaning, and includes information which has some use in proving

or negativing guilt, or which has some bearing on the offence charged. This would include,

for example, evidence in mitigation, such as evidence that the accused appeared to be

intoxicated, emotionally upset, or mentally handicapped.

Finally, the Committee's recommendation has recognized the principle stated in

Stinchcombe, supra, that Crown counsel's decisions not to disclose on the basis of relevance

are reviewable by the trial judge. Relevance is a matter that may sometimes best be

determined in the context of issues as they unfold at trial. Therefore, in the unusual case

76 pp. 345-346.

77 Report No. 14 Criminal Procedure: Part One Disclosure and Committal, at p. 26.
 -202 -

where the relevance of disclosure material is in issue, the trial judge is best placed to decide

the matter.78

4. Part of Crown counsel's obligation to disclose all relevant information in his or her
possession includes the disclosure of information in his or her possession which is
relevant to the prosecution's case, thus enabling the accused to know the case that he
or she must meet. Crown counsel must not withhold such information for the purpose
of cross-examining on it. This paragraph does not require pre-trial disclosure of reply
evidence tendered by Crown counsel in response to issues raised by the accused at trial
where the relevance of that evidence first becomes apparent during the course of the trial
itself

Commentary:

Limitations on the Use of Information for Impeachment Purposes

Paragraph 4 of the Committee's recommendations precludes the withholding, for

impeachment purposes, of information that should be disclosed to the accused. The

Committee recognizes that there is some overlap between paragraph 4 and paragraph

12(c)(i) to (iv), which deals only with statements. The production of the prior statement(s)

of a witness, thereby removing the element of surprise, obviously reduces the value of the

statements for impeachment purposes.

R. v. Stinchcombe, supra, requires the production of the statements of a person who

has supplied relevant information to the authorities, notwithstanding that the Crown does

not intend to call that person as a witness. The Supreme Court of Canada held that the

78
In R. v. Shannon, 9 December, 1992 (unreported), the Court of Appeal for Ontario set aside an order
in the nature of prohibition, prohibiting an Ontario Court (Provincial Division) trial from proceeding until certain
disclosure had been made. The Court of Appeal noted that whether the disclosure sought was or was not
relevant would depend upon the manner in which the Crown chose to prove its case, and upon the nature of the
defence. Thus the Court concluded that it was premature for a motions court judge to order disclosure, and that
the issue should be left to the trial judge. See also R. v. Pasaluko, 2 December, 1992, unreported (B.C.S.C.),
for an example of an approach taken by the trial court to reviewing Crown counsel's decision to withhold
information.
 -203-

production of the statements of a person, who has given relevant information to the

authorities, is necessary in the interest of fairness to the witness, and to avoid setting a trap

for him or her, even though it may disadvantage the cross-examiner, by removing the

element of surprise from the cross-examination of the witness. The production of the

statements of a person who has given relevant information to the authorities also enables

the defence to make a better informed decision as to whether to call that person as a

witness.

R. v. Phillipson (1990), 91 Cr. App. R. 226, illustrates the impermissibility of not

disclosing to the defence information that should have been made part of the Crown's case.

In that case, the accused, in substance, was charged with the unlawful importation of heroin.

The accused claimed that she was acting under duress because of threats to her life and that

of her infant child by one "I". The accused was cross-examined on certain letters written by

"I", and one by her to "I" in affectionate terms, and also on a photograph showing "I"

affectionately holding the child in order to rebut her defence of duress. The defence of

duress appeared from statements of the appellant which were before the jury as part of the

prosecution's case. The Court held that the defence of duress must have been foreseen by

the prosecution as the only rational basis for a verdict of not guilty.

The English Court of Appeal stated that it was not deciding that the prosecution

must, in all circumstances, make part of its case any material which the prosecution might

intend, in certain circumstances, to use in the cross-examination of an accused. However,

on the facts of the particular case, the letters and the photographs should have been

included as part of the prosecution's case and made known to the accused in advance of the

trial.

Lord Justice Gibson, delivering the judgment of the Court, said at 235:

The basic principle that the prosecution must include all probative material
on which it intends to rely, and must tender it as part of the prosecution case,
does not form part of our law because the law wishes to help liars tell more
convincing lies, but because an accused needs to know in advance the case
which will be made against him if he is to have a proper opportunity of giving
 -204-

his answer to that case to the best of his ability. The accused is also entitled,
when he decides to go into the witness box to give evidence, to know what the
case is which he has to meet. The intelligence and powers of memory and of
literacy of accused people vary greatly. Some people may exaggerate and
embroider and lie even where their basic case is true.

It is better in the interests of justice that an accused is not induced, by

thinking that he is safe if he does so, to exaggerate, or to embroider, or to lie.
As Waterhouse J. said in the course of argument, so to do might be to
ambush the accused. It is not, in our view, fair for the prosecution to be free
to have resort to such a device.

In R. v. Sansom, et al. (1991), 92 Cr. App. R. 115, it was also held by the English

Court of Appeal that there had been a breach of the Attorney General's Guidelines in the

failure of the prosecution to disclose to the defence certain documents which were used in

the cross-examination of two of the appellants and which should have been made part of

the prosecution's case.

The latter part of paragraph 4 deals with the issue of material that becomes relevant

only during the trial itself. Manifestly, the Crown is not required to furnish information in

advance of the trial when the relevance of the evidence first becomes apparent during the

trial itself: see R. v. Kraftchick (1991), 44 O.A.C. 313 at 315 (Ont. C.A.). The Crown cannot

be held to a standard of clairvoyance. On the other hand, the mere commencement of a

trial does not relieve the Crown of its obligation to make timely disclosure of relevant

information in its possession. With respect to the obligation to disclose during trial, the

Committee is of the view that the Crown should be held to the same standard as applies to

calling reply evidence.

It is axiomatic that the Crown cannot split its case. All evidence relevant to the guilt

of the accused must be called during the case-in-chief. The Crown may not call evidence

in reply if it could have been reasonably foreseen that the proffered evidence would be

relevant to guilt prior to the close of the Crown's case.

A recent example of the application of this principle is R. v. Downey (1991), 51

O.A.C. 30 (Ont. C.A.). The Court of Appeal for Ontario held, in Downey, that whether an
 -205-

issue relevant to guilt is reasonably foreseeable during the Crown's case depends on an

assessment of the particular factual circumstances that the Crown must prove to make out

the elements of the offence, an assessment of both the examination-in-chief and the cross-

examination of Crown witnesses, and on any indication by defence counsel of the defence

to be advanced. Accordingly, during its case-in-chief at trial, Crown counsel must be

attentive to emerging issues relevant to guilt, and call evidence on any which it is reasonably

foreseeable will be contested.

The Committee is of the opinion that this same standard must apply during trial to

the Crown's obligation to disclose. If, during the Crown's case-in-chief, it becomes

reasonably foreseeable that particular evidence in the possession of Crown counsel will be

relevant, whether by virtue of the unfolding narrative of events from the mouths of Crown

witnesses or by virtue of cross-examination or any other indication by defence counsel, that

evidence should be disclosed as soon as reasonably possible. Such evidence should not be

held back and disclosed only prior to an attempt to call it in reply. This sort of evidence is

properly part of the Crown's case-in-chief, and should be disclosed and tendered then.

Adherence to this standard will ensure that Crown counsel pays careful attention to

the manner in which the case-in-chief is proceeding, and is being tested by the defence, and

will ensure that the Crown is not precluded from calling relevant evidence by virtue of

having erroneously waited until the reply stage of the trial. This standard does not,

however, go so far as to require the Crown to vet its cross-examination of defence witnesses

with defence counsel in advance. Absent any reasonable indication of the nature of the

defence position during the case-in-chief for the Crown, the Crown is entitled to attack the

defence evidence with all appropriate adversarial vigour in cross-examination,79 or in such

reply as is permitted by the trial judge.

79
Phillipson, supra, at 234.
 -206-

In the Committee's view, then, two results flow from the latter part of paragraph 4:

(1) Where the accused, prior to trial, has disclosed his or her defence, for example, alibi,

in sufficient detail to permit the alibi to be investigated, or has stated to Crown

counsel that he or she will be relying upon evidence of good character in support of

the defence advanced, and the Crown is in possession of evidence that rebuts or

tends to rebut the defence advanced, or has evidence that tends to rebut the evidence

of good character, that evidence must be disclosed promptly to the defence.

Conversely, if the Crown is in possession of evidence that tends to confirm the

defence advanced, or the evidence of good character, such evidence must likewise be

disclosed promptly to the defence.

The Committee points out that resort to a fabricated alibi, as distinct from one that is

merely rejected, gives rise to a consciousness of guilt and must be made part of the Crown's

case-in-chief and disclosed to the accused.

(2) During trial. Crown counsel must disclose to the defence any undisclosed information

in his or her possession, as soon as reasonably possible after it becomes reasonably

apparent that the information is relevant.80

5. Crown counsel's obligation to disclose is a continuing one and disclosure of additional

relevant information must be made when it is received. Even after conviction, including
after any appeals have been decided or the time for appealing has lapsed, Crown counsel
must disclose information which he or she realizes shows an accused is innocent or
which raises a doubt as to the accused's guilt.

Commentary;

The Crown's obligation to disclose is ongoing. For example, after initial disclosure

has been made, an additional witness or witnesses may come forward, a witness may give

a different version of the facts, or an expert's report may become available. Additional

80
R. v. Daly, supra.
 -207-

relevant information of this sort must be disclosed as soon as is reasonably possible. The

position taken by the defence in early proceedings or discussions between counsel may also

warrant additional investigation that, in turn, leads to further disclosure. For example, any

statement taken by investigators from a defence alibi witness should be provided to the

defence.

The need to disclose extends into appeal periods following conviction. The factual

findings of the Marshall Commission demonstrate clearly the need to disclose evidence that

Crown counsel realizes raises a doubt about the guilt of someone who has already been

convicted, no matter when such evidence comes to Crown counsel's attention. The

Commissioners conclude, at Vol. 1, p. 87, that had certain evidence, which came to light

only after Mr. Marshall's conviction in 1971, been brought to the attention of the Crown

counsel responding to the conviction appeal, and through Crown counsel to the defence and

the Court of Appeal, a new trial would have been "all but inevitable".

While the obligation to disclose extends throughout any appellate litigation that

follows a conviction, it is not tied to the currency of any appeal periods. In a number of

recent cases, the disclosure of evidence, whether fresh or otherwise, sometimes even years

after all appeal routes had been exhausted and convictions upheld, has led to new trials

being ordered, or convictions quashed outright. See, for example, R. v. Marshall (1983), 120

A.P.R. 286 (N.S.C.A.); Reference Re Milgaard (1992), 71 C.C.C. (3d) 260 at 264, where the

Supreme Court concluded that the original trial and appeal were error free and fair, but

ordered a new trial based on fresh evidence; and Reference Re: Nepoose (1992), 71 C.C.C.

(3d) 419 (Alta. C.A.). The Nepoose reference is particularly instructive on the importance

of police disclosure to Crown counsel. The Alberta Court of Appeal, in ordering a new trial

based on the fresh evidence, commented, at 423, that much of the fresh evidence "was either

known to the investigators or in the possession of the investigators, but not made available

either to the Crown prosecutor or to the accused."

Regardless of the expiry of relevant appeal periods, the federal Minister of Justice

can occasion the re-examination of convictions in a reference to the relevant Court of

 -208-

Appeal, pursuant to s. 690 of the Criminal Code. The Governor in Council may also direct

references to the Supreme Court, pursuant to s. 53(2) of the Supreme Court Act, R.S.C.

1985, c. S-26. These statutory provisions can act as important corrective safeguards in the

administration of justice, as demonstrated by the Marshall, Milgaard, and Nepoose cases,

supra. Accordingly, the Crown's disclosure obligations must be broad enough to ensure that

these important remedial provisions can be resorted to effectively whenever necessary.

It is recognized in paragraph 5 that, typically, Crown counsel's involvement with a

case ends with the judgment of the court before which Crown counsel is appearing. Thus,

Crown counsel is, thereafter, only obliged to disclose information which he or she realizes

shows an accused is innocent or raises a doubt as to guilt. Not every piece of relevant

information would meet this standard. However, Crown counsel may be less objective about

a case after he or she has diligently conducted the prosecution in court, and, therefore, care

must be taken not to unduly discount the worth of the information subsequently received.

The obligation on Crown counsel is simply to disclose the information received after

conviction or appeal. Defence counsel may thereafter conduct such further inquiries as he

or she sees fit.

Reference should also be made to paragraph 15, which obliges Crown counsel to

disclose any additional relevant information received from a Crown witness during a witness

interview conducted in preparation for trial.

6. An accused is entitled to disclosure, but where an accused is represented by counsel this

right is triggered by a request for disclosure made by counsel. It is recommended that
such disclosure requests be made in writing. Where there has been a timely request by
defence counsel disclosure must be made before plea or election. Defence counsel who
wish disclosure have a responsibility to make a timely request for it. Where the request
is not timely, disclosure must be made as soon as reasonably practical and, in any event,
before trial. However, even in the absence of a request, Crown counsel must specifically
advise the defence before trial, whether the accused is represented or not, of any
information in his or her possession that is obviously exculpatory or which Crown
counsel realizes is exculpatory of the accused. Disclosure must be provided or waived
prior to any resolution discussions.
 -209-

7. Where the accused is not represented by counsel, the Court or Crown counsel must
inform the accused of the right to disclosure and how to obtain it. The accused should
be advised of the right to disclosure and how to obtain it as soon as he or she indicates
an intention to proceed unrepresented. Unless the unrepresented accused clearly
indicates that he or she does not wish disclosure, it must be provided before plea or
election, so as to enable the accused sufficient time before plea or election to consider
the information disclosed. Disclosure must be provided or waived prior to any resolution
discussions.

Commentary;

Paragraphs 6 and 7 may conveniently be dealt with together. These paragraphs are
largely self-explanatory. Paragraphs 6 and 7 conform to the spirit of Stinchcombe, although
they go somewhat beyond the letter of the requirements of Stinchcombe in relation to the
unrepresented accused. Generally speaking, disclosure must be made in time to allow
informed decisions to be made at every stage of the trial process, including the earliest ones.
This, of course, includes plea and elections, and would also include such other early matters
as, for example, transfer hearings under the Young Offenders Act,81 early attacks on the
admissibility of intercepted private communications,82 and resolution discussions.

The Committee will, in recommendations that follow, emphasize the importance of

early resolution discussions. Full disclosure is essential to conducting such discussions
effectively, and must, therefore, be made prior to such discussions, unless waived. Where
Crown counsel initiates resolution discussions, he or she must first offer disclosure, and,
unless the right is waived, arrange for full disclosure prior to such discussions, even though
disclosure may not have been formally requested. On the other hand, defence counsel
wishing to initiate resolution discussions must, unless disclosure is not wanted, seek

81 R. v. T.F., 12 March, 1992, unreported (Ont. Ct. (Gen. Div.)).

82 R. v. Aranda (1992), 6 O.R. (3d) 776 (Ont. Ct. (Gen. Div.)).

 -210 -

disclosure beforehand, so as to be able to ensure that resolution discussions are appropriate

in the circumstances, and can be properly conducted.

In the case of a represented accused, the responsibility for making a timely request
is placed upon defence counsel. The Committee sees this as but one specific example of
the general requirement that defence counsel conduct the defence in accordance with
established standards of professional competence.

The Stinchcombe case has been subject to some criticism in that it differed from the
Marshall Commission's recommendation that the Crown has a duty to provide full disclosure
to all accused persons without request.83 The holding in Stinchcombe appears to recognize
that requiring the represented accused to request disclosure does not violate the Charter, but
Stinchcombe does not, of course, preclude the Committee from going further, and

recommending that disclosure be given regardless of any request. None the less, the
Committee is of the view that requiring defence counsel to request disclosure on behalf of
his or her client is sound policy.

The Committee has, as discussed above, already recommended that all accused
persons be advised in writing of their right to disclosure by virtue of a notice on every pre¬
printed release form or summons in use in the province. Accordingly, where an accused is
informed of the circumstances of the offence based on his or her own participation, and is
well aware of the right to disclosure, and wishes to acknowledge the offence and plead guilty
early in the proceedings, forced disclosure does nothing to benefit him or her. Yet,
automatic disclosure in these circumstances would cause additional delay, and impose
significant, unnecessary financial and administrative burdens on the administration of justice
in any jurisdiction with the high volume of cases, and high volume of early guilty pleas, that
Ontario currently has.84 The Committee has been advised that, in many cases, sometimes

83
Royal Commission on the Donald Marshall, Jr., Prosecution, Vol. 1, at p. 243, Recommendation 39.

84 Ministry of the Attorney General ICON data base statistics indicate that for the period between 1 January
and 30 November, 1992, guilty pleas before a trial date were approximately 2.4 times more numerous than guilty
pleas at trial.
 -211 -

as many as two-thirds of the cases in a given jurisdiction, disclosure requests are not made.

Therefore, it would be, in the Committee's view, a serious error to impose disclosure which

an accused person neither wants nor needs. The Committee prefers to leave this decision

to the discretion of counsel, in consultation with his or her client. Diligent counsel will

make such disclosure requests as appear in the circumstances to be necessary. This position

accords with the wisdom of the Stinchcombe case, the practical realities of Ontario's criminal

justice system, and, indeed, with the practice in other jurisdictions.85

The Committee has none the less provided, in paragraph 6, that Crown counsel

cannot let the absence of a request for disclosure result in a miscarriage of justice. Where

Crown counsel is aware of exculpatory material, or is in possession of obviously exculpatory

material, there is a duty to bring the existence of that material to the attention of the

defence. This does not supplant the need for defence counsel to request disclosure.

Material in the possession of Crown counsel that should be disclosed upon request on the

basis of relevance may be helpful to the defence, but may none the less not be exculpatory

and thus subject to disclosure absent a request. Ultimately, a standard requiring disclosure,

without a request, of only obviously exculpatory material, or material known to be

exculpatory, recognizes that Crown counsel, as a minister of justice, should not permit an

accused to be wrongfully convicted simply because there has been no request for disclosure

as required.

The desirable objective of safeguarding the right to disclosure of an unrepresented

accused results in the unrepresented accused being afforded certain rights which are

unnecessary or inappropriate in the case of a represented accused. Thus, in accordance with

85 •
See, for example, United States v. Agars, 427 U.S. 97,103 (1976), the American Bar Association, Standards
for Criminal Justice (2nd ed.) (1978), s. 11-2.1(a), as updated, and commentary thereon. The commentary to
Illinois Supreme Court Rule 412(a), Disclosure to the Accused, 110A Ill. Stats. Anno, provides as follows:

The discovery is not intended to be "automatic," in the sense that the State is
not required to furnish information without any request by defense counsel.
It is recognized that in many cases discovery will be neither necessary nor
wanted; paragraph (a), therefore, reflects the Committee's opinion that the
choice of discovery or no discovery under this rule be within the discretion of
defense counsel.
 -212 -

Stinchcombe, supra, the Committee has provided in paragraph 7 that the unrepresented

accused must be advised of his or her right to disclosure by the Court or by Crown counsel.

No request is necessary. Further, the Committee considered that, in the case of an

unrepresented accused, it was not sufficient to advise him or her of the right to disclosure,

without advising the accused how to obtain it. Unless the unrepresented accused clearly

indicates that he or she does not wish disclosure, it must be provided in sufficient time

before plea or election to enable the accused to consider the information supplied.

The Committee recognizes that complex prosecutions, or cases in which an accused

is in pre-trial custody, may, with the consent of the accused, fairly and properly be treated

somewhat differently than suggested by paragraphs 6 and 7 above. For example, where an

accused is in custody, he or she may wish to waive the right to disclosure before plea or

election, then elect a particular mode of trial and set a trial date well before the time by

which the Crown, acting diligently, can provide disclosure. Such a procedure may be

desirable for an accused in that it minimizes pre-trial custody. Alternatively, in an unusually

complex prosecution, delaying election and/or plea until after full disclosure may

unnecessarily lengthen the proceedings, even if an accused is out of custody. For example.

Crown Briefs in complex prosecutions may take months to prepare,86 or it may take

months to conduct necessary scientific or other expert analysis. In many cases, the plea and

election to be made are obvious to an accused from the outset. Therefore, an accused may

wish to make his or her election and/or plea before full disclosure has been made, and may

waive his or her rights in this respect. The fact that the accused has chosen to plead and

elect before receiving disclosure does not, however, accord any latitude to the Crown to

provide disclosure any more slowly than would otherwise be the case. Where an accused

has already elected the mode of trial and/or entered a plea, Crown counsel is still obliged

to provide disclosure as quickly as reasonably possible.87

86 R. v. Atkinson and Atkinson (1991), 5 O.R.(3d) 301 (C.A.); aff'd (1992), 11 O.R. (3d) 160 (S.C.C.).

87 R. v. Nova Scotia Pharmaceutical Society et at., 19 October, 1992, unreported (N.S.S.C.T.D.).

 -213-

Section 800 of the Criminal Code provides that, in summary conviction matters, an

accused may appear personally, or be represented by either counsel or an agent. The

Committee observes that, in some summary conviction matters, accused persons in Ontario

are represented by independent agents, for example, paralegals, who are not lawyers and

are not bound by professional standards of conduct applicable to lawyers.

The Committee is therefore of the view that, in so far as disclosure is concerned, an

accused person represented by such an independent agent must be treated as an

unrepresented accused.

The Committee's recommendation that accused persons represented by independent

agents be treated as unrepresented for disclosure purposes does not, of course, apply to

persons employed by or otherwise answerable to a lawyer, who are acting as agents for that

lawyer to provide services to an accused person. For example. Crown counsel may provide

disclosure packages to a student-at-law, secretary, law clerk, or other person employed by

counsel of record for that accused as if it were counsel himself or herself who is picking up

the package. To take another example, an accused person, who is represented throughout

a summary conviction prosecution by a student-at-law acting in that capacity, is to be treated

for disclosure purposes as a represented accused. The distinction between independent

agents, and agents acting for a principal who is a lawyer, justifies differential treatment with

respect to disclosure, because it is the professional duty of the principal, who is a lawyer, to

ensure that his or her agents properly seek and use disclosure as necessary, and, having

received it, do nothing improper with it.

8. Crown counsel has a discretion, reviewable by the trial judge:

(a) to withhold disclosure where he or she has reasonable cause to believe withholding
is necessary to protect the identity of an informant, to preserve the solicitor-client
privilege, or to preserve investigative techniques; and

(b) to delay disclosure where he or she has reasonable cause to believe delay is necessary
to protect the safety or security, which includes protection from harassment, of persons
 -214-

who have supplied information to the Crown, or to complete an investigation. Any delays
in disclosure to complete the investigation should, however, be rare.

Commentary:

The purpose of disclosure is to inform the accused of the case he or she has to meet,

and to ensure the accused a fair trial and the right to make full answer and defence

guaranteed by the Charter. Although the purpose of disclosure is not to protect the privacy

of persons, privacy is none the less a proper consideration.88 The effective investigation

of crime depends, in large measure, on the support and co-operation of the public.

However, it is said that sources of information about criminal wrongdoing would dry up

unless the police and the Crown are able to take some steps to protect the privacy of

persons who supply them with information. The Committee agrees that this is a serious

concern.

Therefore, while the purpose of disclosure is not to protect the privacy of people who

have supplied information to the police, the purpose of disclosure does not preclude the

taking of reasonable measures to protect witnesses or people who have supplied information

to the police. In this area of the law, as in other areas, the law endeavours to strike a

balance between competing interests. Where, however, the interest in a fair trial guaranteed

by the Charter is not reconcilable with measures proposed to protect the privacy of witnesses

or people who have supplied information to the police, the accused's constitutional right to

a fair trial and to make full answer and defence overrides privacy interests.

As the Supreme Court of Canada has held in Stinchcombe, supra, the Crown may

properly delay disclosure where Crown counsel is concerned that revealing the identity of

a person will endanger the safety or security (including harassment) of that person. The

Committee considers that there must be a reasonable basis for Crown counsel's concern and

has so provided in its recommendations. The Committee is satisfied, based on its own

experience and on representations made to it by both Crown and defence counsel, that

delaying disclosure is not a frequent occurrence. As the Supreme Court of Canada pointed

88
R. v. Daly, supra, at 77.
 -215-

out in Stinchcombe, supra, it is a fact of life that, when a witness testifies, his or her identity

will become known.

The privilege of an informer, of course, prevents his or her identity being revealed,

subject to the innocence exception at common law. Moreover, the solicitor-client privilege

cannot be invoked to keep from the jury evidence that would establish the accused's

innocence or enable the accused to resist an allegation by the Crown: see R. v. Seaboyer, R.

v. Gayme (1992), 7 C.R. (4th) 117 at 136 and 148 (S.C.C.). Further, as stated by the

Supreme Court in Stinchcombe, supra, at 340:

The trial judge might also, in certain circumstances, conclude that the
recognition of an existing privilege does not constitute a reasonable limit on
the constitutional right to make full answer and defence and thus require
disclosure in spite of the law of privilege.

The Committee has also concluded that the principle of disclosure does not prevent

suitable editing of photocopies of police notes or reports, for example, to protect informers.

Editing may also be permitted to protect innocent people who have supplied information

to the police. The Committee recognizes that an investigator's notebook, which is written

in daily, may have information pertaining to many different investigations intermingled. It

may contain expressions of an officer's opinion on any number of matters addressed during

the investigation. The notebook may also contain much information about people who,

ultimately, have had nothing to do with the crime in question, but who were contacted

before the investigation narrowed to any significant extent. Clearly, irrelevant notations of

this type are properly edited prior to disclosure of the notes. Different considerations may

apply to notes concerning certain kinds of suspects, even though they are, ultimately, not

charged with the offence being investigated.89

Where delaying disclosure or suitable editing of police notes does not afford

sufficient protection to a witness, he or she may be a suitable candidate for admission into

89
See Reference Re Milgaard, supra.
 -216-

a witness protection program. Such programs exist at both the federal and provincial

level.90

Paragraph 8 follows the language of Stinchcombe, save that the Committee has added

the words "to preserve investigative techniques." The preservation of investigative techniques

was not listed in Stinchcombe as a reason for delaying disclosure. There is no indication in

the reasons for judgment in that case, however, that it was considered. The Committee

considers that the preservation of investigative techniques is within the spirit of Stinchcombe.

The Committee observes that under paragraph 6(d) of the Attorney General's Guidelines

(1982), 74 Cr. App. R. 302 at 303, there is a discretion to withhold disclosure if "it would

disclose some unusual form of surveillance or method of detecting crime."91

The previous directive on disclosure from the Attorney General provided that, before

disclosure material could be withheld by Crown counsel, it was necessary to obtain the prior

written approval of the relevant Regional Director of Crown Attorneys. The Committee has

made no similar recommendation. In the Committee's view, the Stinchcombe decision has

overtaken the need for this manner of control on the power of Crown counsel to withhold

disclosure material. Disclosure is now an accused's constitutional right, and Crown counsel

90 At the provincial level, applications for witness protection are prepared by the Crown Attorney's Office
handling the prosecution, in conjunction with the police. They are then submitted to the Crown Law Office -
Criminal for review, and a decision by the Deputy Attorney General. The programme provides funding to assist
in the maintenance and relocation of a witness and/or family members where:

1. the life or health of the witness and/or family members is, or is believed to
be, in real danger as a result of the involvement of the witness in a
prosecution;

2. the case in which the witness is involved is a case of significance to the

administration of justice; e.g. murder, robbery, organized crime;

3. the testimony of the witness is a key element of the Crown's case.

The witness protection program does not provide rewards or benefits in return for testimony. It
provides only the assistance necessary to protect the witness and/or his or her family. For a further
example of procedural protections available to a witness, see also s. 8(a) of the Ontario Change of Name
Act, R.S.O. 1990, c. C.7.

91 See also the New Zealand Law Commission, supra, at p. 47; R. v. Hewitt; R. v. Davis (1992), 95 Cr. App.
R. 81 (C.A.).
 -217-

are thus accountable to the trial court for any failure to disclose as required. Although the

Committee does not recommend that prior written approval is necessary, it is no doubt a

prudent practice for Crown counsel contemplating withholding or delaying disclosure to seek

the advice of one or more of his or her senior colleagues. Such advice may be prudent to

ensure that withholding or delaying is truly required, and to ensure that, if withholding or

delaying is necessary, nothing that should be withheld or delayed is overlooked, or to assess

when the withheld or delayed material should be disclosed.

Reference should also be made to the general recommendation in the introduction

to this chapter to the effect that it is improper for Crown counsel to disclose material to

defence counsel on the condition that defence counsel not discuss it with his or her client.

9. (a) Defence counsel should not leave disclosure material in the unsupervised
possession of an accused person.

(b) An unrepresented accused is entitled to the same disclosure as the represented

accused. However, if there are reasonable grounds for concern that leaving
disclosure material with the unrepresented accused would jeopardize the safety’,
security, privacy interests, or result in the harassment of any person, Crown
counsel may provide disclosure by means of controlled and supervised, yet
adequate and private, access to the disclosure materials. Incarcerated,
unrepresented accused persons are entitled to adequate and private access to
disclosure materials under the control and supervision of custodial authorities.
Crown counsel shall inform the unrepresented accused, in writing, of the
appropriate uses and limits upon the use of the disclosure materials.

Commentary:

The Represented Accused

Where an accused is represented, defence counsel must be given full access to all

material properly subject to disclosure, and must be given the latitude with the material

necessary to fully prepare the defence. This, of course, will include reviewing and discussing
 -218-

the material, perhaps in great depth and detail, with the accused. Perhaps, the disclosure

material will suggest further investigation to be undertaken by the defence. Preparing for

the defence, however, does not entail leaving disclosure materials with an accused person

to disseminate as he or she may wish. Therefore, the Committee is of the opinion that this

should not be done. The principles underlying this provision are discussed more fully,

earlier in this chapter, in the section addressing the ethical and legal obligations of defence

counsel.

The Unrepresented Accused

It is the experience of the Committee that it is unusual for a person in the province

charged with a serious offence to be unrepresented by counsel. However, it may occur. It

is axiomatic that the unrepresented accused and the accused who is represented must, so

far as possible, be treated alike. It is a basic principle, of course, that the unrepresented

accused, like the accused who is represented, is entitled to full disclosure.

There is, however, one obvious difference between the represented and the

unrepresented accused that has a direct and practical bearing on disclosure. Where an

accused is unrepresented, there is no officer of the Court, acting for the defence, who can

ensure that the disclosure material is used only to prepare to answer the charge, and not for

some other improper purpose. In the introductory part of this chapter, the Committee has

discussed, in some detail, the harmful consequences that can flow from improper use of

disclosure materials, and has emphasized the importance of preventing such grave

interference with the administration of justice.

Ultimately, defence counsel, as an officer of the Court, is expected to act responsibly.

An unrepresented accused, however, is not required to comply with professional standards.

Providing full disclosure to an unrepresented accused, when there is a reasonable basis for

concern as outlined in paragraph 9(b), may, therefore, in the Committee's view, be

accomplished in a somewhat different manner.

 -219-

The Committee has recommended that, where there is a reasonable basis for concern

that leaving disclosure materials with the unrepresented accused would jeopardize the safety,

security, privacy interests, or result in the harassment of any person, Crown counsel should

take such reasonable steps as are necessary to prevent these harms, by providing private

access to disclosure materials (or copies thereof) in controlled conditions. It is to be

observed that Crown counsel must not arbitrarily treat an unrepresented accused person

differently than a represented accused with respect to disclosure. However, where it is

necessary to do so, this may be accomplished, for example, by leaving a photocopy of the

disclosure materials with an accused in a closed but private room at the Crown Attorney's

Office or police station. With respect to an unrepresented, incarcerated accused, the

Committee has recommended that such persons are entitled to adequate and private access

to disclosure materials under the supervision of custodial authorities. The recommendations

also provide that Crown counsel shall inform the unrepresented accused, in writing, of the

appropriate use and limits upon the use of disclosure materials.

Where there is a reasonable basis for concern, which leads to disclosure being made

in a supervised setting as provided for in paragraph 9(b), the accused must none the less be

provided with full disclosure. Further, the Committee wishes to emphasize that the

supervision required in these circumstances cannot impair the right of the accused to

prepare, in a reasonable manner, to meet the charge(s) he or she is facing. An accused

person may have to attend at the Crown's office, police station, or a particular location in

a custodial facility to review the disclosure, but, once there, an accused person cannot be

limited to a cursory glance at the materials. Such supervised access to the disclosure

materials must still permit their reasonable use in preparing to make full answer and

defence.

Reference should also be made to the commentary following paragraphs 6 and 7,

wherein the Committee concludes that accused persons represented by independent agents,

who are not themselves answerable to a lawyer, should be treated as unrepresented for

disclosure purposes. As with an accused who is representing himself or herself, an accused

person represented by a paralegal or any similar type of independent agent not answerable
 -220 -

to a lawyer must not, of course, arbitrarily be treated differently with respect to disclosure

than an accused who is represented by a lawyer.

10. Dialogue between Crown and defence counsel before and after disclosure, and, in any
event, prior to setting a date for preliminary inquiry or trial, is strongly encouraged.
Crown counsel and defence counsel, as officers of the Court, will usually be able to
resolve disputes with respect to disclosure. If they are unable to resolve a dispute, the
trial judge must resolve it.

Commentary;

This paragraph is based on Stinchcombe, supra, and encourages continuing discussion

between Crown counsel and defence counsel. Since the purpose of the right is to afford the

accused a fair trial, and not to avoid a trial, exercising the right entails communicating

disclosure needs to the Crown in a manner that facilitates proper preparation of the case.92

Ongoing dialogue pertaining to disclosure cannot be fruitful, and holds little hope of

resolving issues or facilitating preparation, unless both Crown and defence counsel have

reviewed the disclosure material early in the proceedings, and assessed how the case ought

best to be conducted from that point forward. For example, if, after reviewing the materials

first provided, the defence decides to enter a plea of guilty or engage in resolution

discussions, subsequent disclosure requests might be very different than they would be if the

defence, having reviewed the disclosure materials first provided, decided to plead not guilty,

and commenced preparations for trial which might involve a defence such as duress,

insanity, or alibi. In this regard, the Committee observes that sentencing materials, such as

victim impact statements, which are, of course, irrelevant to the guilt or innocence of the

accused (unless they contain a statement by the victim pertaining to the circumstances of

O'}
" See, for example, R. v. Luff, supra, wherein the Newfoundland Court of Appeal held that it was wrong
for defence counsel to say nothing about allegedly insufficient disclosure until the outset of trial when a motion
for a stay was brought. The Court of Appeal set aside the stay and remitted the matter for trial. See also R.
v. Douglas (1991), 5 O.R. (3d) 29 (C.A.).
 -221-

the offence), may become relevant if the issues in a prosecution are narrowed before trial

to issues of sentencing.

Defence counsel who does not pay early and close attention to disclosure issues also

risks doing a disservice to his or her client. For example, if matters come out at trial that

are not anticipated by the defence, because the disclosure materials were not reviewed

carefully, an adjournment of the trial may be necessary to make full answer and defence.

However, for the accused detained while awaiting trial, such an avoidable adjournment

clearly has undesirable consequences.

11. The principle of disclosure applies to prosecutions for indictable offences, summary'
conviction offences and prosecutions under the Provincial Offences Act. In all such
prosecutions, the Crown, or the private prosecutor, is required to provide complete
disclosure in accordance with these recommendations, save where they’ are inapplicable.

Commentary:

This provision embodies, for purposes of a Directive on Disclosure, the Committee's

Recommendation #36, pertaining to disclosure for summary conviction offences and

Provincial Offences Act prosecutions. Reference should be made to the discussion

accompanying that general recommendation.

2. Particular Requirements

12. The accused, pursuant to the foregoing principles, is entitled to complete disclosure.
Without limiting the generality’ of the foregoing, the Crown is required to provide the
following information in its possession, unless clearly irrelevant:

(a) a copy of the charge or charges contained in the information and indictment;

(b) an accurate synopsis of the circumstances of the offence alleged to have been
committed by the accused, as prepared by the investigating agency;
 -222 -

Commentarv:

As the Law Reform Commission of Canada pointed out, in its recommendations with

respect to disclosure, notice of the accusation is intrinsically different from disclosure of

relevant information; it was, nevertheless, of the view that it imposed a negligible burden

on the Crown, in contrast to the significance of that right. The Commission recommended

that a judicial officer shall not proceed with a criminal prosecution at the time the accused

first appears, unless he or she is satisfied that the accused has been given a copy of the

information or indictment containing the charge or charges against him.93

The Committee, in its recommendations with respect to disclosure, has recommended

that the accused be provided with a copy of the charge or charges contained in the

information and indictment. In addition, the Committee has recommended, in paragraph

12 (b), that the accused be provided with an accurate synopsis, prepared by the investigating

agency, of the offence alleged to have been committed by the accused. The synopsis of the

offence alleged to have been committed by the accused may be the only information that

an accused wishes.

12. (c) All statements obtained from persons who have provided relevant information to
the authorities should be produced, even though Crown counsel does not propose
to call them as witnesses. Statements of any co-accused (whether made to a
person in authority or not) should also be produced. Crown counsel shall
provide to the accused:

(i) copies of any written statements;

(ii) copies of any will-say summaries of anticipated evidence, and

copies of the investigator's notes or reports from which they are
prepared, if such notes or reports exist;

(Hi) a reasonable opportunity, in private, to view and listen to the

original or a copy of any audio or video recordings of any

93
Law Reform Commission of Canada, Report 22 — Disclosure by the Prosecution, at pp. 18-19.
 -223-

statements made by a potential witness other than the accused.

This does not preclude Crown counsel, in his or her discretion,
from providing copies of any video or audio recording or a
transcript thereof, where available;

(iv) Where statements or recordings do not exist, copies of the

investigator's notes, in relation to the persons who have provided
relevant information to the authorities, must be provided. If there
are no notes, then all relevant information in the possession of
Crown counsel that the person could give should be supplied,
subject to Crown counsel's discretion to delay disclosure;

(v) In addition to the foregoing, Crown counsel may, upon request by

the defence, also provide the name, address, and occupation of
any person who has relevant information to give, subject to Crown
counsel's discretion to delay or withhold such disclosure;

(vi) Any discretion exercised by the Crown with respect to disclosure of

the foregoing is reviewable by the trial judge.

Commentary:

Paragraph 12(c) should be read in conjunction with paragraphs 4, 12(h), and 13, and

the commentaries thereon.

Paragraph 12(c) deals with the disclosure of statements made to the authorities by

persons with relevant information to give. Such statements must be provided whether or

not the Crown proposes to call as a witness the person or persons who made the

statement(s). Clearly, if the person who has given the statement is to be a Crown witness,

the statement is an important aid to the defence in preparing any cross-examination to be

conducted. And, if the person is not to be called by the Crown, the defence is none the less

entitled to the statement to assess whether such a witness should be called by the defence.

This was precisely the fact situation in Stinchcombe, supra.

The Committee recognizes that police forces across the province have different

methods of taking statements. Further, the exigencies of an investigation often cannot be

 -224-

readily anticipated, and, therefore, the circumstances of a witness making a statement may

vary greatly, so that no one method of recording that statement can be consistently

employed. For these reasons, the Committee has no desire to recommend a uniform and

mandatory method of taking a statement, applicable to all situations. On the other hand,

whether a statement is subject to disclosure has nothing to do with the manner of its being

recorded. Therefore, paragraphs 12(c)(i) to 12(c)(iv) are written to ensure that, regardless

of the form in which the statement is taken by the authorities, it must be disclosed if the

information contained therein is not clearly irrelevant.

The duty of the Crown to make disclosure is dependent upon the obligation of the

investigator to provide accurate and complete statements of persons who have supplied

relevant information to the authorities. It, therefore, cannot be overemphasized that all

such statements should be carefully prepared, and should, in all cases, include any relevant

information provided by the person giving the statement which might assist the accused.

The opening part of paragraph 12(c) also deals with any statement(s) of a co-accused.

Absent separate trials, there can be no issue of the Crown calling the co-accused as a

witness, but any statement(s) must still be disclosed, whether made to a person in authority

or not. Statements of a co-accused may have considerable bearing on the conduct of the

defence, and, thus, their disclosure is a matter of some importance. For example, the

statement of one co-accused may exonerate his or her co-accused. In these circumstances,

it might be appropriate for defence counsel acting for the exonerated accused to seek a

severance prior to trial, so that the exonerating co-accused may be compelled to testify.

These sorts of early tactical decisions to be made by the defence can only be properly and

fairly made following full and early disclosure of statements of both the accused and any co¬

accused, whether made to a person in authority or not.

Even if the statement of a co-accused does not exonerate his or her co-accused, and

does not commend a motion for severance in any other way, its disclosure is no less

important, as the statement may provide important early indications of how that co-accused

may conduct his or her defence. This is invariably an important consideration for the other
 -225-

co-accused, as the finder of fact may tend to assess the co-accused in relation to each other.

In the case of persons who have supplied relevant statements to the authorities which

have been video or audio taped (paragraph 12(c) (iii)), Crown counsel has a discretion to

limit the accused's access to the tape(s) to a reasonable opportunity to view or listen to

them.

The Committee has been informed that some victim/witness groups who take video

taped statements of children have indicated that they will cease such recordings if the tapes

do not remain in the possession of the Crown. These groups have no objection to the

accused being provided with a reasonable opportunity to view and listen to the tapes, but

have expressed grave concern about the potential loss of control of their circulation.

Accordingly, the Committee recommends that Crown counsel may, in his or her discretion,

retain such control while providing a reasonable opportunity, in private, to view or listen to

the recordings. Crown counsel is not, however, precluded by the recommendations from

providing the defence with copies of video or audio taped statements whenever appropriate.

The Committee does not consider that R. v. Stinchcombe, supra, provides any support

for a requirement that the Crown must provide copies of the statements of witnesses that

have been video or audio taped, as distinct from providing the accused with a reasonable

opportunity to view and listen to the tapes. At issue in that case was the refusal of Crown

counsel to disclose the content of two statements, one of which was taped, made by a person

who had given evidence apparently favourable to the defence at a preliminary hearing.

There is no suggestion in that case that the Crown should have provided copies of the

statements to the defence. Sopinka, J., delivering the unanimous judgment of the Court,

stated that the Crown was required to "produce,"94 that is, to show the statements to the

94
R. v. Stinchcombe, supra, at 345.
 -226-

defence. The word produce is defined in a number of dictionaries as meaning to show or

exhibit.95 See also R. v. WJ.V, supra.

However, by custom in this province, the Crown generally supplies copies to the

defence of disclosure material, a practice which this Committee generally endorses, as

discussed in the general recommendation on point. In R. v. Stinchcombe, supra, Sopinka,

J. said:

I am confident that disputes over disclosure will arise infrequently when it is

made clear that counsel for the Crown is under a general duty to disclose all
relevant information. The tradition of Crown counsel in this country in
carrying out their role as "ministers of justice" and not as adversaries has
generally been very high. Given this fact, and the obligation on defence
counsel as officers of the court to act responsibly, these matters will usually
be resolved without the intervention of the trial judge. When they do arise
the trial judge must resolve them.96

The disclosure recommendations of the Committee contemplate ongoing discussions

between Crown and defence counsel. The recommendations of the Committee, in fact,

encourage such discussions.

Crown counsel will, in most cases, be satisfied by an undertaking by defence counsel

that a copy of an audio or video tape will be retained in the possession of defence counsel

and returned to Crown counsel at the conclusion of the retainer. (See Rule 10,

Commentary 8, of the Law Society of Upper Canada's Rules of Professional Conduct.)

In the unusual case where defence Counsel wishes the taped statement of a person

to be examined by an expert, this can usually be arranged between Crown and defence

counsel, for example, by sending a true copy of the tape in a sealed packet to the expert and

95 Webster's Third International Dictionary (1981), p. 1810; The Oxford English Dictionary (2nd ed.), Vol. XII
at p. 563; Black's Law Dictionary, 6th ed. (1990), p. 1209; West's Law & Commercial Dictionary, vol. 21, (1985),
p. 327.

96
pp. 340-341.
 -227-

taking an undertaking from the expert to retain in his possession the true copy of the tape

until returned to Crown counsel, and to report the expert's findings in a sealed and

confidential report to defence counsel. Defence counsel could also write a letter to the

expert confirming such an arrangement. If counsel are unable to agree, a remedy may be

fashioned by the trial judge. The trial judge may also fashion a remedy for the

unrepresented accused who wishes to have the tape examined by an expert.

The Committee considers that this provision is reasonable in the interest of the

security or privacy of victims or witnesses, particularly given that access is granted to the

audio or video recordings in issue, which fully accords an accused his or her rights to a fair

trial and to make full answer and defence. Moreover, the Committee is satisfied that this

recommendation finds support in the recent case law on point.97

Finally, the Committee observes that, pursuant to paragraph 12(c)(v), the provision

of addresses, and other information that can facilitate contact with a witness, is in the

discretion of Crown counsel, which discretion is, of course, reviewable by the trial judge.

In exercising this discretion, it cannot be forgotten that there is no property in a witness.

Both parties in any criminal prosecution are entitled to make such proper contact with a

witness as is thought necessary or desirable in preparing the case. Therefore, the

withholding of addresses by the Crown cannot frustrate the practical exercise of this right.

On the other hand, there are, in the Committee's view, some circumstances where

it is appropriate to withhold addresses of witnesses or other information that may facilitate

contact with a witness. Crown counsel is clearly empowered to withhold information that

reveals a witness' whereabouts if there are reasonable grounds for concern that interference

with the administration of justice, for example, by harming, harassing, or intimidating a

witness or his or her family, may occur. Where, however, information that would facilitate

direct contact with a witness by the defence is withheld by the Crown, there may arise a

corollary obligation upon the Crown to impartially ascertain whether the witness is willing

97
See R. v. Vokey, supra; R. v. Collier, supra.
 -228-

to speak to the defence in any event. If the witness is willing to speak to the defence, the

Crown may arrange for the defence to conduct a private interview of the witness at an

appropriate location.

12. (d) information regarding the criminal record of the accused and any co-accused;

Commentary;

Paragraph 12(d), providing that the accused shall be provided with information

regarding the criminal record of the accused and any co-accused, should be read in

conjunction with the commentary to both paragraph 12(c), which entitles an accused to

copies of any statements of a co-accused, whether made to a person in authority or not, and

paragraph 12(h), which prescribes the availability of criminal records of witnesses, including

the limits on their availability.

It is beyond doubt that an accused is entitled to the disclosure of a copy of his or her

own criminal record under present disclosure principles applicable to indictable offences.

Any accused charged with an indictable offence will have been fingerprinted98 and, thus,

an accurate criminal record can be obtained. The decision as to whether to call the accused

into the witness box to give evidence is a very important one in a criminal case.99 If,

however, the accused goes into the box, his or her criminal record may be fully before the

trier of fact. (See, however, Corbett v. The Queen (1988), 41 C.C.C. (3d) 385, 64 C.R. (3d)

1 (S.C.C.), where the Supreme Court held that the trial judge has a residual discretion to

prevent cross-examination of an accused on prior convictions if such cross-examination

would deprive the accused of a fair trial.) Thus, an accurate record of the accused's

98 Criminal Code, s. 501(3); Identification of Criminals Act, R.S.C. 1985, c. 1-5, s. 2.

" See, for example, J.D. Bowlby, Q.C. (as he then was), "Defending a Criminal Case" (1969), Law Society
of Upper Canada Special Lectures 131.
 -229-

previous conviction(s) is a telling factor in a decision which may be of some considerable

consequence for the defence.

Further, it cannot be assumed that diligent defence counsel can elicit all of the

criminal record information needed from the accused. No doubt such an effort must be

made. However, accused persons may forget; they may forget what they were convicted of,

when, how many times, and what sentences they received. Accused persons may also

deliberately and effectively mislead their own counsel as to prior criminal convictions,

erroneously thinking it is in their own best interests to do so. In addition, it is notorious

that an accused may sometimes think that he or she was not convicted of an offence because

he or she was placed on probation. It may be, therefore, that, in many cases, disclosure is

the only practical method of access to the details of an accused's criminal record.

The record of a co-accused may also be of considerable importance to the conduct

of the defence, and, as such, should be disclosed early in the proceedings. Obviously, it may

be crucial to the cross-examination of the co-accused if he or she goes into the witness box,

which cross-examination itself may be crucial if antagonistic or "cut-throat" defences are

employed. And, like verbal statements of the co-accused, the record is relevant to the

desirability of moving to sever the co-accused prior to trial.

For example, co-accused "A" may be jointly charged with co-accused "B", who has no

prior record, and who intends, as part of his or her defence, to call evidence of good

character. In Ontario, co-accused "B" has a right to an instruction as to the use that may

be made of evidence of good character.100 However, the criminal record of co-accused

"A" may be of such a nature as to preclude the calling of evidence of good character. In this

situation, the prejudice to co-accused "A" may be so significant as to warrant an application

100 R. v. Tarrant (1982), 63 C.C.C. (2d) 385 (Ont. C.A.); R. v. Yadollahi (1988), 36 C.C.C. (3d) 478 (Ont.
C.A.); R. v. Profit (1993), 16 C.R. (4th) 332 (Ont. C.A.).
 -230-

for a severance. Clearly, however, such a decision by the defence cannot be made in a

timely way without early disclosure of the criminal records of both "A" and "B".101

12. (e) a copy of any written statement made by the accused to a person in authority,
and, in the case of verbal statements, an accurate account of the statement
attributed to the accused and copies of any investigator's notes in relation thereto,
and a copy of, and a reasonable opportunity to view and listen to, any original
video or audio recorded statement of the accused to a person in authority. All
such statements or access thereto must be provided whether or not they are
intended to be introduced in evidence.

Commentary;

Paragraph 12(e) should be read in conjunction with the commentary to paragraph

12(c)(i) to (iv).

It will be observed that the Committee has recommended that copies of any

statement made by an accused to a person in authority, which has been video or audio

taped, be provided to the accused. An accused, under paragraph 12(e) of the

recommendations, is entitled to a copy of any written statement made by the accused to a

person in authority. In the case of verbal statements made to a person in authority, the

accused is entitled to an accurate account of the statement, and copies of the investigator's

notes in relation thereto. In addition, the accused is entitled to a copy of, as well as a

reasonable opportunity to view and listen to, any video or audio recorded statement to a

person in authority, whether or not the Crown intends to adduce it in evidence. Such

statements are to be disclosed in a somewhat less controlled manner than may be the case

with the audio or video recorded statements of witnesses or victims dealt with in paragraph

12(c)(iii). However, such disclosure is still subject to the Committee's views, with respect

to the impropriety of defence counsel leaving disclosure material in the unsupervised

101 See also R. v. Kendall and McKay (1987), 35 C.C.C. (3d) 105 (Ont. C.A.), for another example of how
it may be to the advantage of one co-accused to know of the criminal antecedents of another co-accused.
 -231-

possession of an accused person, and with respect to providing disclosure to unrepresented

accused persons in a controlled setting.

12. (f) a copy of any police occurrence reports and any supplementary reports;

Commentary:

The Committee heard submissions, from police officers across the province,

concerning the note-taking practices that they employ while investigating criminal matters.

These note-taking practices vary in form among the various police forces. For example, in

some jurisdictions, the essential source of notes is the officer's pocket notebook. In others,

the notebook captures only rough points, and a full recitation of the events is made shortly

thereafter directly onto pre-printed occurrence reports. Some jurisdictions make use of

dictaphones and word processors. No doubt emerging computer technology will mean that

more notes will be entered directly into computer terminals, perhaps in police cruisers at

the scene of the investigation.

The Committee has, in a more general recommendation above, emphasized the

importance of careful, complete, and accurate note-taking. This general recommendation

is concerned essentially with the substance of the notes, their quality, rather than their form.

Provided police notes are, at all times, accurate and comprehensive, the Committee views

the form in which the notes are to be written as a matter best left to decision-makers in the

various police forces, having regard to the needs and circumstances that prevail locally.

Paragraph 12(f) of the Committee's recommendations emphasizes that, however relevant

information is gathered, be it by way of occurrence report or supplementary occurrence

report, it is, like the notes relating to witness statements discussed in paragraph 12(c),

subject to disclosure.
 -232-

On the subject of disclosure of police notes, matters of form may, none the less, be

important. For example, depending upon local practices, written recordings taken at the

scene of an investigation may be the basis of subsequent, more comprehensive, written

recordings, such as an occurrence report. In these circumstances, the Committee is of the

view that both the source document and the final document should be disclosed. In so

recognizing, the Committee is adhering to the principle that the best evidence may be the

evidence recorded closest to the events in question. Fairness requires that the defence be

provided the best evidence in the possession of the prosecution. Thus, the guiding precept

in disclosing notes, in whatever form, is that a copy of the original, or first, recording of any

particular piece of information must be provided. Paragraph 12(f) of the Committee's

recommendation seeks to embody this principle.

In recommending that the original, or first, written recording of any information be

disclosed, the Committee is not, thereby, obliging the prosecution to provide, in every case,

every document generated thereafter. The Committee recognizes that many documents

prepared by the police or the Crown in the course of organizing an investigation or

prosecution will contain no new information. Such documents may, for example, be aimed

at assisting an investigator or prosecutor to prepare the case, and may do nothing more than

summarize information already found in its entirety in other notes or documents. However,

it cannot be overlooked that a document prepared, for the most part, from other pre-existing

notes may also contain additional information not found elsewhere. Thus, that document

may be both a summary of pre-existing material and an original or first written recording

of new information. In these circumstances, the defence is entitled to such a document, as

it contains additional information that they would not otherwise receive.

The Committee makes the general observation that the administration of justice can

be fair and yet more efficient and cost-effective if the duplication of documents is kept to

a minimum. For example, it may be that police investigators can, in many cases, generate

full, legible, and comprehensive notes, taken in a format that facilitates ready disclosure,

such as on a multiple copy form. In these cases, subsequent summaries would be an

unnecessary expense, as the original is subject to disclosure in any event. Further, avoiding
 -233-

unnecessary duplication in summarizing documents also minimizes the prospect that a

document, which is, for the most part, a summary, but which contains, perhaps, vital new

information, will be overlooked and not disclosed.

12. (g) as soon as available, copies of any forensic, medical, and laboratory reports
which relate to the offence, including all adverse reports, except to the extent that
they may contain irrelevant or privileged information;

Commentary:

The words "forensic, medical, and laboratory reports" used in paragraph 12(g) are as

broad as possible and are intended to include, but are not limited to, reports with respect

to such matters as hair, blood, soil, substances found on the accused or his or her clothing,

and DNA testing. The reports referred to in paragraph 12(g) are not, however, static, and

are capable of growth to include new scientific discoveries. It will be observed that the

scientific reports which are to be provided to the accused include all reports which are

adverse to the Crown. The provision to the accused of all scientific reports that are adverse

to the Crown should not, in general, present a problem. The problem arising out of

providing the accused with scientific reports is more likely to arise with respect to a failure

to include in the report the results of scientific tests which the person preparing the report

considers irrelevant. In the case of the "Birmingham Six," the expert witness called by the

Crown did not mention, in his evidence at the trial, that one of his colleagues from the same

laboratory had obtained positive results, with respect to the presence of nitroglycerine, from

the same test that same night, from the hands of two salesmen on the Belfast ferry, because

he considered that the information was irrelevant.102

The necessity for including in the report any information adverse to the Crown is a

matter of educating those who prepare scientific or other expert reports. The Crown should

P.J. O'Connor,"Prosecution Disclosure: Principle, Practice and Justice", [1992] Crim. L.R. 464, at pp.
466-67.
 -234-

advise all experts that they are not to take an adversarial position, but are to provide the
Crown with the results of any tests or information which, arguably, may assist the accused,
so that the Crown may make proper disclosure, even though the person preparing the
reports considers that the results of the test or other information is irrelevant.103

12. (h) where reasonably capable of reproduction, and where Crown counsel intends to
introduce them into evidence, copies of documents, photographs, audio or video
recordings of anything other than a statement by a person, and other materials
should normally be supplied to the defence. The defence may be limited to a
reasonable opportunity, in private, to view and listen to a copy of any audio or
video recording where Crown Counsel has reasonable cause to believe that there
exists a reasonable privacy’ or security interest of the victim(s) or witness(es), or
any other reasonable public interest, which cannot be satisfied by an appropriate
undertaking from defence counsel.

Commentary;

Paragraph 12(h) is broadly worded to cover all manner of items reasonably capable
of reproduction that may become an exhibit at trial. Normally, the defence should be
provided with copies of such items. Paragraph 12(h) also deals with a certain kind of audio
or video recording in further detail. The audio and video recordings contemplated in
paragraph 12(h) are those that are not audio or video recorded statements of persons. Video
recorded statements of persons are covered in two other paragraphs: 12(c) applies to audio
or video recordings of any person with relevant information to give other than an accused,
but including a co-accused; 12(e) applies to audio or video recordings of the accused's
statement(s).

Where Crown counsel has cause to believe that, due to the nature of an audio or
video recording falling within the ambit of 12(h), it is necessary to take steps to protect a
reasonable privacy interest of a victim or witness, or some other reasonable public interest,

103
R. v. Judith Ward (1992), 96 Cr. App. R. 1 (CA.).
 -235-

he or she may limit the defence to a reasonable opportunity to view, in private, the audio

or video recording in question.

One example illustrating how paragraph 12(h) may be applicable to a video

recording, is the video taping by police investigators of the scene of a homicide. The

Committee has been advised that this practice is becoming increasingly common, because

these video tapes are often important forensic or investigative tools. Important though they

are, it may be that such a video is particularly intrusive, for example, displaying a nude,

deceased victim, perhaps horribly mutilated. In such a situation, it may well be that Crown

counsel has cause to take steps, out of respect for the deceased, or in the interests of the

privacy of surviving relatives of the deceased, to limit the circulation of such a video to that

necessary to make full answer and defence. The Committee considers that it is both

reasonable and appropriate for Crown counsel to do so, having regard to the fact that

improper circulation of such a video may be highly traumatic for a victim's family, and

having regard to the fact that the right to full answer and defence is not thereby

compromised.

The Committee assumes that, in most of these types of cases, defence counsel will

readily supply an appropriate undertaking to the Crown in return for a copy of the material,

recognizing its sensitive nature, and that defence counsel will thereafter responsibly ensure

that the material in issue does not leave his or her control. If, however, such an undertaking

cannot satisfy the reasonable privacy or security or other public interest at stake, the Crown

may, instead of providing a copy of the material, provide a reasonable opportunity, in

private, to view or listen to a true copy of the recording.104 Such access must, however,

be reasonable, in that it affords the accused his or her right to make full answer and

defence.

104
See R. v. Vokey, supra.
 -236-

12. (i) a copy of any search warrant relied upon by the Crown, the information in
support, and a list of items seized thereunder, if any,

Commentary:

If search warrants have been executed which Crown counsel determines are not

relevant, see the Crown's obligations under paragraph 16 of these recommendations.

12. (j) if intercepted private communications will be tendered, a copy of the judicial
authorization under which the private communications were intercepted;

(k) an appropriate opportunity to inspect any relevant items seized or acquired during
the investigation of the offence which remain in the possession of the
investigators, whether or not Crown counsel intends to introduce them as exhibits
in court;

Commentary;

The situations where it may be necessary for full answer and defence to inspect items

that the authorities have seized or acquired during an investigation are infinite in their

number and variety. Thus, in the Committee's view, the opportunity to inspect such items

ought to be limited only by the relevance of those items. As in other determinations of

relevance by Crown counsel, it would be open to the defence to review, before the trial

judge, a decision not to permit inspection.

The Committee has recommended that the right to inspect apply only to those items

which "remain in the possession of the investigators." In some cases, it is appropriate or

necessary to properly record, and then immediately return to their rightful owner, items

seized during an investigation. For example, where money or perishable goods are seized

in a theft or robbery investigation, and the victim of the crime is indisputably the owner of
 -237-

the money or goods, it may impose an unnecessary hardship on the victim for the police to

retain those items pending possible inspection by the defence. Instead, the police may make

a proper record of the items seized and returned, for example, by photograph and/or by

recording serial numbers, which record must be disclosed to the defence. It would, of

course, be improper to return items seized without making such a proper record, or to

unreasonably return items seized.

Without limiting the generality of paragraph 12(k), the Committee is further of the

view that, in an unusually large or complex investigation, where the volume of material

accumulated during the investigation makes the reproduction of all material that would

normally be reproduced impractical, the Crown may, instead, provide the defence with a

description or index of the material, and a reasonable opportunity to inspect it. If such a

procedure for providing disclosure is used in a complex investigation. Crown counsel none

the less must inform the defence of any information which Crown counsel is aware of and

which is exculpatory or favourable to the accused in any other way.

For example, in a child abduction case, there may be tens of thousands of fruitless

inquiries conducted and noted by investigators before the child is found. It cannot be said

that these inquiries are necessarily irrelevant, and. thus, they may all be properly subject to

disclosure, even though only one, or two, or even none, of them might ultimately be useful

to the defence. Likewise, in an extremely complex fraud investigation, the relevant

documentation may fill many rooms; and, although all of the documentation is subject to

disclosure on the basis that it is not clearly irrelevant, none the less there may be very little

of it that is of direct assistance to the defence. In circumstances such as these, the

Committee thinks it sufficient to provide the defence with a description or index of the

materials in question, and permit such access to the material as is reasonable in all of the

circumstances. See the Committee's discussion at paragraph 12(c)(iii), with respect to the

Crown's duty to "produce" disclosure materials, as opposed to providing copies thereof.

Without in any way attempting to be exhaustive, access to disclosure materials that

is reasonable in the circumstances of complex investigations will depend on such matters as

 -238-

the volume of the material, its sensitivity, the need to protect the integrity of the material,

and the nature of the prosecution. Ultimately, access to the material must be guided by the

purpose of disclosure, that is, to facilitate the right to make full answer and defence.

12. (1) upon request, information regarding criminal records of material Crown or
defence witnesses that is relevant to credibility;

Criminal Records of Witnesses

As stated above, it is a well established rule of disclosure that the Crown must furnish

the accused with a copy of his or her criminal record. Whether, and if so in what

circumstances, the Crown is required to provide the accused with copies of the criminal

records of Crown and proposed defence witnesses is, however, a different question and

raises different issues.

Many vigorous arguments were advanced as to why a rule that an accused is

automatically entitled to receive the prior criminal record of any proposed witness is both

unfair and unworkable. Among the arguments advanced were:

(a) The production of a criminal conviction for an offence, e.g., car theft, when the

witness was a youth, and that person has, over a period of many years, been completely

rehabilitated, would be grossly unfair, and may deter witnesses from coming forward.

(b) The only way in which the police can identify, with certainty, the proposed

witness as a person with a criminal record is by obtaining the fingerprint of the proposed

witness. Sections 570(4) and 667 of the Criminal Code and s. 12 of the Canada Evidence

Act, R.S.C. 1985, c. C-5, contain specific and detailed statutory requirements to be satisfied

before a criminal record can be regarded as proven. These requirements include fingerprint

comparison, or an official record from each court before whom an individual was convicted,
 -239-

along with proof of identity.105 Accused persons who are arrested or issued an appearance

notice for an indictable offence are fingerprinted, pursuant to s. 2 of the Identification of

Criminals Act, R.S.C. 1985, c. 1-1 and s. 501(3) of the Criminal Code. However, unlike

accused persons, the fingerprints of witnesses may not be readily available. And, even if

they are, fingerprint matching is a cumbersome, expensive, and time-consuming exercise,

which may well be practically unworkable for a high volume of requests for the criminal

records of witnesses.

(c) It is impossible to obtain any criminal record information of a proposed witness

in respect of crimes committed outside Canada without the fingerprints of the proposed

witness.

(d) The police often do not have the date of birth of a person with a common name

when conducting a search for a criminal record of that person, and even the date of birth

of a person with a common name does not, in the absence of a fingerprint, provide a

guarantee that the proposed witness is the person shown on the records as a person with a

criminal record.

(e) Automatically requiring the criminal records of all proposed witnesses for the

Crown or the defence would involve a large expenditure of public funds and of police time,

and may dangerously overburden police computer communication networks.

(f) The release of criminal record information is carefully controlled by protection

of privacy legislation at the federal, provincial, and municipal levels.106 Criminal record

105 Criminal records may also be proven at common law, where a similar standard applies: Albright v. The
Queen (1987), 37 C.C.C. (3d) 105 (S.C.C.); R. v. Lalonde (1950), 98 C.C.C. 363 (Ont. C.A.); R. v. Protz (1984),
13 C.C.C. (3d) 107 (Sask. CA.). Further, the onus to prove a criminal record rests with the Crown: R. v. Neufeld
(1960), 129 C.C.C. 322 (Sask. C.A.); R. v. Stratton (1978), 42 C.C.C. (2d) 449 (Ont. CA.).

106 See the Identification of Criminals Act, supra, s. 2(3), and the Federal and Ontario Ministerial Directives
thereon; the Young Offenders Act, ss. 45 and 45.1, 45.2 and 46; Access to Information Act, R.S.C. 1985, c. A-l,
ss. 19, 42; the Privacy Act, R.S.C. 1985, c. P-21, ss. 3, 8, 22, 26; the Freedom of Information and Protection of
Privacy Act, R.S.O. 1990, c. F-31, ss. 2, 14, 21, 42; and the Municipal Freedom of Information and Protection of
Privacy Act, R.S.O. 1990, c. M-56, ss. 2, 8, 14, 32.
 -240-

information is clearly a matter of some sensitivity to persons endeavouring to overcome a

criminal past. It may even be misused for extortionate motives. The various statutes

controlling access to criminal record information all have provisions enabling the release of

criminal record information, for example, if there is an overriding public interest in such

release, or if it is necessary for the proper administration of justice.107 It is, of course,

ultra vires the province to legislate with respect to criminal procedure, and even federal

legislation is subject to the s. 7 Charter right to make full answer and defence. However,

the existence of federal or provincial mechanisms designed to limit the distribution of

criminal record information may, as a practical matter, make obtaining their release

cumbersome and time consuming.

(g) Summary conviction records are not kept on a national basis.

The Law Reform Commission of Canada, in its 1984 report on Disclosure by the

Prosecution, recommended the addition to the Criminal Code of a part entitled "Disclosure,"

which, among other provisions, would provide that an accused is entitled "to receive, where

his request demonstrates the relevance of such information, a copy of the criminal record

of any victim or proposed witness" (report on Disclosure by the Prosecution, at p. 14). It

seems that the report is here dealing with proposed Crown witnesses.

The Law Reform Commission of Canada noted in its report that the criminal record

of a witness can have a significant bearing on that person's credibility. However, the

Commission went on to state that they opposed the release of every witness' criminal record

as a matter of course. The Commission saw such a rule as imposing a considerable

administrative burden on the Crown, producing potential unfairness where a record was

minor and outdated, and providing for the release of material that may well be irrelevant.

107 The Privacy Act, supra, s. 8(2)(m)(i); the Freedom of Information and Protection of Privacy Act, supra,
ss. 21(2), 23; the Municipal Freedom of Information and Protection of Privacy Act, supra, ss. 14, 16; the Young
Offender's Act, supra, s. 45.1.
 -241-

Instead, the Commission settled on the requirement that the defence demonstrate the

relevance of the record requested.108

In R. v. Stinchcombe, supra, Sopinka, J. quoted extensively from the Marshall

Commission Report. He said, in part:

The Commission recommended an extensive regime of disclosure of which the

key provisions are as follows (vol. 1 at p. 243):

2(1) Without request, the accused is entitled, before being

called upon to elect the mode of trial or to plead to the charge
of an indictable offence, whichever comes first, and thereafter:

(g) to receive a copy of the criminal record of any proposed witness.109

Although Sopinka, J. made no adverse comment on the recommendations of the

Marshall Commission, quoted by him, it is clear that he did not completely adopt them. For

example, the Marshall Commission's recommendations state that the accused, without

request, is entitled to the disclosure indicated. Sopinka, J. held that, although the accused

is entitled to disclosure, where the accused is represented by counsel, the Crown's obligation

to disclose will be triggered by a request by or on behalf of an accused.

The Committee is of the opinion that the Stinchcombe case does not prevent the

Committee from fashioning a different, but fair, rule from that recommended by the

Marshall Commission with respect to the right of the accused to receive information with

respect to the criminal records of proposed witnesses.

The Committee is of the view that any rule on the accused's right to obtain

information with respect to criminal records of proposed witnesses should apply to both

Crown and defence witnesses. A person may have given a statement to the police or to a

108
Law Reform Commission of Canada, Disclosure by the Prosecution, at p. 26.

109
pp. 336-337.
 -242-

defence investigator that is, on its face, helpful to the defence. This person, therefore, holds

out some promise as a defence witness. However, the potential witness' criminal record

may have an important bearing on the impact that such a person's testimony may have at

trial, and, thus, on the desirability of calling that person as part of the defence's case.

Therefore, the defence is entitled to some access to the records of potential witnesses in

order to make an informed decision as to who to call, and to avoid an ambush that might

otherwise occur in the case of a witness with a lengthy, undisclosed criminal record. It is

obvious, of course, that defence counsel cannot obtain a criminal record of a potential

defence witness without disclosing at least the name of that witness.

The Committee is further of the view, for the reasons stated above in the discussion

of the accused's criminal record, that it is not sufficient to assume that competent defence

counsel will, when interviewing a proposed witness, be able on his or her own to elicit

sufficient information about that person's criminal record to make an informed decision on

whether to call that person as a witness. Certainly, defence counsel should, and often do,

make these efforts, but they may not be sufficiently successful. This underscores the need

for some access by the defence to the criminal records of potential witnesses.

In order to accommodate, to the greatest extent possible, these competing difficulties,

the Committee recommends that, upon request, the Crown shall supply to defence counsel

information regarding the criminal records of the material Crown and defence witnesses that

is relevant to credibility. It is recognized that the Crown has a discretion to determine

whether such information regarding a criminal record is relevant, and that the exercise of

this discretion is reviewable by a trial judge. For example, with an expert witness, it may

be that the only issue to be taken with his or her testimony is with respect to the correctness

of the opinion offered, not credibility. Similarly, it may be that the only live issues with

respect to an independent witness to an alleged crime are his or her opportunity to observe,

and to recollect, rather than credibility.

The Committee has carefully avoided recommending that the defence should be

supplied with the "criminal record" of a proposed witness. As stated above, a truly accurate
 -243-

"criminal record" can only be obtained by way of the cumbersome fingerprint comparison

procedure. Young offenders' records may be still more difficult to obtain. Information

concerning the criminal record of a proposed witness may well be in the Canadian Police

Information Centre (CPIC) data bank, but such information, if it can be located at all with

a date of birth, cannot be assumed to be a fail safe "criminal record" of the person to whom

it apparently pertains, absent fingerprint comparisons.110 None the less, the Committee

is of the view that information taken from a CPIC computer printout would usually, unless

the Crown had further information in its possession, meet the requirements of the

Committee's recommendation that, upon request, information concerning the criminal

record of a witness for the Crown or the defence be supplied.111

The Committee has further recommended that the obligation to disclose criminal

record information requires a specific request, and can be limited to material witnesses,

whose credibility is in issue. Many superfluous requests for the records of peripheral

witnesses can be prevented by limiting disclosure obligations in this respect to a standard

of materiality. Further, it is commonplace that the credibility of many material witnesses

who testify in criminal proceedings is simply not in issue. An expert witness is often cross-

examined upon the analysis that resulted in the opinion offered, rather than credibility.

Many independent eye witnesses are also not cross-examined on credibility, but instead on

their opportunity and ability to observe, their recollection, and their description of what was

observed.

110 Pursuant to sub-delegation from the Solicitor General, information concerning criminal records is
maintained and controlled by the R.C.M.P. through the Canadian Police Information Centre (CPIC) database:
Department of the Solicitor General Act, R.S.C. 1985, c. S-12, s. 4; Identification of Criminals Act, supra, s. 2(3);
Criminal Records Act, R.S.C. 1985, c. C-47, ss. 3, 6; Young Offenders Act, R.S.C. 1985, c. Y-l, s. 41. The criminal
record material contained in the CPIC database originates from a number of sources, such as local police
records. The agency that is the original source of the criminal record information is responsible for the validity,
relevance, and quality of that data, and must maintain files to support all CPIC entries. The Canadian Police
Information Centre does not guarantee or warrant, either expressly or impliedly, the accuracy of the criminal
record information either received from a source agency, or released to an authorized party upon request: CPIC
Reference Manual, 27th Revision, January, 1992, p. 1-1-4, and "Waiver of Claim".

111 The Court of Appeal for Ontario has held that criminal record information such as that provided from
the CPIC system is reliable and appropriate for sentencing purposes. The Court also recognized that it can be
difficult to obtain such information: see R. v. Ghrairi, 12 June, 1992, unreported.
 -244-

The Committee, therefore, is of the view that limitations on disclosing criminal

records of witnesses based on the Crown's discretion (reviewable by the trial judge) as to

materiality and credibility will, in large measure, satisfy the various objections, advanced

above, to disclosing them, without infringing on an accused's right to make full answer and

defence.

12. (m) upon request, any information in the possession of Crown counsel, for example
information regarding outstanding criminal charges or criminal convictions,
demonstrated to be relevant to the defence; and

Commentary:

There may be some overlap between paragraph 12(m) and the Crown's basic

obligation to disclose all relevant information in its possession, whether favourable, or

unfavourable to the accused (paragraph 3), but, of course, Crown counsel may not realize,

until a specific request is made and its relevance to the defence demonstrated.112 In this

regard, reference should also be made to paragraph 17, below.

The provision applies to all evidence in the Crown's possession that is demonstrated

to be relevant to the defence. One example is information in the Crown's possession as to

outstanding charges against a witness which may be relevant to the motivation of the witness

(Titus v. The Queen (1983), 2 C.C.C. (3d) 321 (S.C.C.)). Another example is the

requirement of disclosure by the Crown of any criminal convictions demonstrated to be

relevant to the defence, such as prior convictions of a person for violence where the defence

is self-defence (R. v. Scopelliti (1981), 63 C.C.C. (2d) 481 (Ont. C.A.)). A third example is

evidence of the disposition of a third party which might, in combination with other facts such

as motive and opportunity, support a defence argument that it was more probable that it

11') ...
" American authority recognizes that the defence is clearly better positioned than the Crown to ascertain
what is and is not relevant to the conduct of the case by the defence. SeeJencks v. United States, 353 U.S. 657
(1957); United States v. Bryant, 448 F. 2d 1182 (D.C. Cir. 1971); State v. Cowan, 197 S.E. 2d 641 (1973); American
Bar Association Standards for Criminal Justice, ll-2.1(a), "Prosecutorial Disclosure", and commentary thereon.
 -245-

was the third party, not the accused, who committed the offence. See R. v. MacMillan

(1976), 23 C.C.C. (2d) 160 (Ont. C.A.); aff'd (1977), 33 C.C.C. (2d) 360 (S.C.C.).

The decision of Crown counsel that the information sought is not relevant is

reviewable by the trial judge.

12. (n) where identity is in issue, and the Crown relies in whole or in part on the visual
identification of the accused as the person seen in the circumstances of the crime,
all information in the possession of Crown counsel that has a bearing on the
reliability of the identification must be disclosed to the accused.

Commentary:

Pursuant to the Committee's more general disclosure recommendations, the Crown

is, of course, bound to make full disclosure to the accused of information relevant to his or

her guilt or innocence. This would include evidence having a bearing on identification, such

as fingerprints, circumstantial evidence of identity, DNA or other scientific evidence, or

evidence of visual identification. Mistaken visual identification, even by honest witnesses,

has sometimes led to miscarriages of justice.113 Further, a considerable body of law has

developed relating to visual identification. These facts have led the Committee to conclude

that a separate paragraph should be devoted to disclosure of relevant information

concerning visual identification.

To facilitate the making of full answer and defence in a case where identity is in

issue, the method used to identify an accused must be specified and disclosed to the

defence: for example, whether the accused was picked out of a photo line-up or

identification parade, whether the identification of the accused was as a result of a chance

113 See, for example, R. v.A.D. (1990), 37 O.A.C. 267 (CA); R. v. Izzard (1990), 54 C.C.C. (3d) 252 (Ont.
C.A.); and R. v. Quercia (1990), 60 C.C.C. (3d) 380 (Ont. CA.), where convictions obtained in reliance upon
identification evidence have been set aside on appeal, and acquittals entered.
 -246-

encounter on the street, or whether the accused was identified in the hall of the courthouse

prior to the courtroom proceedings, or in the dock in court.

A photo line-up or an identification parade is, where practicable, the preferred

method of identification of a suspect. Whatever method of identification is used, an

accurate record must be made, where possible, of the actual words spoken by the identifying

witness. This record must then be disclosed to the defence. It may be of some considerable

significance to the defence to know if the identifying witness said "that is the man", or

whether the witness said only, "he looks like the man, but I am not sure". The evidence

may, of course, show that the identifying witness did not pick out the accused at all. Any

such failure of an identifying witness to identify the accused must also be disclosed to the

defence.

It is well settled that, where a photo line-up or identification parade is used, care

must be taken not to indicate the position of the suspect. Care must also be taken to ensure

that the line-up is fair in that the accused is not conspicuously different from the others in

the line-up.114 The suspect should be positioned among a number of persons, perhaps

eight or more, who are of similar age, height, and general appearance, which includes

physical features, dress, and grooming.115

In the Committee's view, the accused should be provided with a photocopy of the

photo line-up, or, in the case of an identification parade, at least a photograph of it, so that

the defence may assess its fairness. The Committee considers that video tapes of an

identification parade are preferable to a simple photograph, and should be made where

feasible. A copy of the tape should then be provided to the defence. Video taping can

provide cogent, or even irrefutable evidence of the fairness or otherwise of the identification

parade. Video tape also captures the exact words of the identifying witness, and any non-

See, for example, R. v. Turnbull et al. (1976), 63 Cr. App. R. 132 (C.A.); R. v. Goldhar, R. v. Smokier
(1941), 76 C.C.C. 270 (Ont. C.A.).

115 Gianville Williams, "Evidence of Identification: The Devlin Report", [1976] Crim. L. R. 407, at p. 417.
 -247-

verbal indications that the identifying witness gives as to his or her certainty in making the

identification.

Where identity is in issue, information as to whether the person or persons identifying

the accused were previously familiar with the accused is of great importance in assessing the

reliability of the identification. Information as to the opportunity that the identifying witness

had to make the observations and identification he or she made is, likewise, of great

importance. All information of this type must be disclosed to the defence.

A description of the perpetrator or person seen on the occasion in question should

be obtained by investigators and, thereafter, disclosed to the defence. Any composite

drawings which are prepared should, likewise, be disclosed. Copies of composite drawings

should be provided if the originals are reasonably capable of reproduction.

The foregoing are examples of the types of information pertaining to the issue of

identification that must be disclosed. They are not, of course, exhaustive. Where identity

is in issue, any information pertaining to identification must be disclosed where it is not

clearly irrelevant.

13. Crown counsel is required to disclose any information in his or her possession relevant
to the credibility of any proposed Crown witness. Without limiting the generality of the
foregoing, Crown counsel is required, for example, to disclose:

(a) any prior inconsistent statements or subsequent recantations of that person;

(b) particulars of any promise of immunity or assistance given to that person with
respect to a pending charge, bail, or sentence, or any other benefit or advantage
given; and

(c) any mental disorder that person is suffering from which may be relevant to the
reliability of his or her evidence.
 -248-

Commentarv:

The Committee has, in paragraph 13, emphasized the duty of Crown counsel to

disclose information in his or her possession or control which is relevant to the credibility

of any proposed Crown witness.

Admittedly, there is some overlap between paragraphs 13(a) and 12(c)(i) to (iv),

relating to the Crown's duty to provide the defence with copies of any written statements

of persons who have supplied relevant information to the authorities, even though the

Crown does not propose to call them as witnesses, and, in the absence of written statements,

to provide the other information mentioned and to provide reasonable access to video or

audio recorded statements of such persons. The Committee considers, however, that the

Crown's duty to provide inconsistent statements to the defence as relevant to the credibility

of proposed Crown witnesses should be emphasized by inserting this obligation in paragraph

13(a).

It is to be observed that the Crown's obligation to disclose information relevant to

the credibility of a proposed Crown witness, as set out in paragraph 13, does not purport to

be exhaustive. Paragraph 12(1), for example, requires the Crown, upon request, to provide

information regarding criminal records of material Crown or defence witnesses that is

relevant to credibility.

There may be other matters reflecting on the credibility of Crown witnesses which

should be disclosed, for example, a conviction in prior disciplinary proceedings against a

Crown witness reflecting on the honesty of the witness.116

116 PJ. O'Connor, "Prosecution Disclosure: Principle, Practice and Justice", [1992] Crim. L. R. 464, at pp.
474-75.
 -249-

14. Subject to Crown counsel's discretion as to relevance, which is reviewable by the trial
judge, counsel on behalf of the accused or an unrepresented accused may, upon request,
inspect the investigative agency's file in relation to the offence. The defence should,
where possible, particularize their request to assist Crown counsel in exercising their
discretion as to the relevance of undisclosed information in the investigative file. Any
dispute arising from such a request should usually be resolved in discussions between
Crown and defence counsel. This recommendation does not preclude Crown counsel
from limiting the defence to access to photocopies of the file material wherever necessary
to preserve the integrity of the originals, for example, where editing the originals would
destroy their integrity, or taking other reasonable steps necessary to protect:

(a) the safety, security> or freedom from harassment of people who have provided
information to the Crown;

(b) the informer privilege;

(c) any other privilege; or

(d) ongoing police investigations or investigative techniques.

Commentary;

This paragraph provides that defence counsel or an unrepresented accused may, upon

request, conditional on Crown counsel's discretion as to relevance, reviewable by the trial

judge, examine the investigative agency's file subject to the safeguards mentioned in the

paragraph.117 This paragraph also provides that the defence should, where possible,

particularize their request to assist Crown counsel in the exercise of their discretion to

permit access to the file. Such a provision discourages ill-considered or automatic demands,

and is simply a specific example of the need for defence counsel and Crown counsel to

discuss disclosure issues with each other, thereby ensuring that Crown counsel is apprised

117 The Committee observes that the American Bar Association has endorsed the concept of "open file"
disclosure. See the A.B.A. Standards for Criminal Justice, 2nd Ed. (as updated) s. ll-2.1(a) and commentary
thereon.
 -250-

of the relevance of any material whose relevance could not reasonably be appreciated

absent some explanation from the defence.118

As previously noted, the Committee has recommended that the principle of disclosure

should apply to summary conviction offences and to prosecutions under the Provincial

Offences Act and the Securities Act. The investigative agency will usually be the police but

may, for example, be a person or persons acting on behalf of the relevant department of

government. Many governmental departments or other agencies perform both routine

regulatory functions, and investigative and prosecutorial functions, where necessary. This

may be true of, for example, the Securities Commission, or governmental departments

responsible for environmental matters, labour relations, or consumer and commercial

relations. In these situations, where a particular accused, for example, a corporation, is

charged with an offence, the relevant department may have two files. One file may relate

to the investigation of the alleged offence, and the other may contain unrelated regulatory

matters pertaining to the same corporation. In these circumstances, the access contemplated

by this recommendation would generally be to the investigative file, unless there were

something relevant in the general regulatory file.

During a complex or unusually large investigation, relevant material uncovered should

be sent to or collected at a central location where it constitutes the investigative agency's

file. This practice may be particularly important in ensuring that nothing is overlooked for

the benefit of either the Crown or the defence in a prosecution. The Stinchcombe case

establishes that relevant original police notes are subject to disclosure. And, of course, the

Committee has, likewise, recommended, that, if notes are relevant, they should be disclosed

upon request, subject to editing to prevent harassment, to protect confidential informants,

the existence of ongoing investigations, and the integrity of investigative techniques.119

) 18
See also United States v. Agnrs, supra, at 103.

119 See also with respect to the disclosure of police notes, Patrick O'Connor, "Prosecution Disclosure:
Principle, Practice and Justice", [1992] Crim. L. Rev. 464, at pp. 470-71.
 -251-

The Committee considers that requests to examine the investigative agency's file will

not occur frequently in routine cases. In some cases it may, however, be important to the

accused to examine the investigative agency's file. By way of illustration, it may be

important to an accused charged with murder to know whether the victim was reported to

have been seen alive after the time the murder is alleged to have been committed. If such

a report exists, even if emanating from another jurisdiction, it would be important to the

accused to know who made the report, under what circumstances the victim is alleged to

have been seen, and whether the person making the report was previously familiar with the

appearance of the victim. To take another illustration: it would be important for an accused

charged with a criminal offence to know whether there was a person in the neighbourhood

who had committed offences having similarities to the offence with which the accused is

charged: see Reference Re Milgaard, supra.

The foregoing are examples only. There may be other information in the

investigative agency's file that is helpful to the accused for the conduct of the defence at

trial, the undertaking of further investigations prior to trial, the conduct of resolution

discussions, or to enter an informed plea of guilty. The Committee is confident that

disputes with respect to access to the investigative agency's file can usually be worked out

between Crown counsel and defence counsel or, in the rare case where an accused is

unrepresented, between Crown counsel and the unrepresented accused. If the parties are

unable to resolve the dispute, the trial judge must resolve it.

15. Crown counsel generally need not disclose any internal Crown counsel notes,
memoranda, correspondence, or legal opinions. Where, however, Crown counsel learns
of additional relevant information in the course of interviewing Crown witnesses, defence
counsel or an unrepresented accused should be advised of that information as soon
thereafter as practicable.
 -252-

Commentary:

In the United States, under the "work product" doctrine, the prosecution is not

required to disclose material that is part of the "work product" of the prosecuting attorney

or his or her legal staff.

The nature and scope of the doctrine are set out in standard 11-2.6(a) of the

American Bar Association Standards for Criminal Justice which reads:

(a) Disclosure shall not be required of legal research or of records,

correspondence, reports or memoranda to the extent that they contain
the opinions, theories, or conclusions of the prosecuting attorney or
members of the prosecutor's legal staff.

Without in any way attempting to be definitive, it is clear that the doctrine applies

to matters of opinion and not to matters of fact. Thus, a comment that a proposed witness

is truthful would be an expression of opinion, and would be exempt from disclosure. Legal

advice from the Attorney General to another governmental department may also be

exempt.120 On the other hand, a record that a proposed witness had made a statement

of fact would not be exempt from disclosure. Other examples of material that would be

exempt from disclosure would be notes relating to trial strategy and the examination and

cross-examination of witnesses.

The work product doctrine, clearly, does not exempt from disclosure medical,

scientific, and other experts' reports. Material exempt from disclosure under the work

product doctrine would be exempt from disclosure in Canada, either under the work product

doctrine, or on the ground that such material is irrelevant. The Crown is required to

disclose all relevant information, and the opinions and theories of the prosecuting attorney

and his or her legal staff are irrelevant.

120
Attorney General of Canada ct al. v. Sander, 18 September, 1992, unreported (B.C.S.C.).
 -253-

While medical and other expert reports must, of course, be disclosed, the Committee

observes that it is commonplace, where expert evidence is likely to be called at trial, for

Crown and defence counsel to consult experts to render advice as to how best to cross-

examine the expert put forward by the other side. Such advice may include, for example,

questions to be asked, reference to particular articles or texts to be read by counsel, or

advice on the strengths and weaknesses of the opposing expert and his or her report. Where

an expert provides such advice or assistance to Crown counsel, it need not be disclosed, as

it relates to trial strategy, and the examination and cross-examination of witnesses. On the

other hand, an expert witness appearing for either the Crown or the defence may be asked

if he or she assisted in preparing counsel to cross-examine the opposing expert, as this may

be relevant to the former's impartiality.

Finally, the Committee notes that where, in the course of an interview with Crown

counsel or the police, a person being interviewed provides additional relevant information

or makes an inconsistent statement, this information should be supplied promptly to defence

counsel or to an unrepresented accused. The Committee observes that it may be prudent

for Crown counsel to have a police officer present at witness interviews conducted in

preparation for trial, so that if any new information comes to light, the officer can make

notes of that information to facilitate its disclosure, and give whatever testimony may be

necessary at trial in relation to that information. This practice would avoid the possibility

of Crown counsel becoming a witness in the prosecution.121

16. Crown counsel shall advise the defence of any decision made not to disclose information
in his or her possession that should otherwise be disclosed, and the importance of that
information. Crown counsel shall also advise the defence of the specific nature of the
information in his or her possession which is not disclosed, unless disclosure of the
nature of the information withheld would reveal the identity of an informer, jeopardize
anyone's safety or security or subject them to harassment, compromise an ongoing,
investigation, or reveal police investigative techniques. Upon request, Crown counsel

121
R. v. Sungalia, Fiore, and Karakatsanis, 18 September, 1992, unreported (Ont. Ct. (Gen. Div.)).
 -254-

shall take any other steps reasonably necessary’ to facilitate a review by the trial judge of
any decision not to disclose.

Commentary:

Crown counsel must specify the nature of the material in his or her possession that

is withheld on the ground of relevance only. This paragraph does not require Crown

counsel to review the entire police investigative file as a matter of course, but rather

addresses information in counsel's possession that he or she decides to withhold. Crown

counsel is entitled to rely upon the police to provide whatever has a bearing on the case,

resolving any doubt on that issue in favour of bringing the material forward. Identifying the

nature of the material withheld does not require detailed summaries of that material, as this

is impractical, particularly in cases with voluminous irrelevant material. Further, requiring

a detailed summary may undermine the discretion to withhold. A description of the type

of material withheld will suffice.

Paragraph 16 recognizes that specifying the nature of the evidence withheld may, in

some cases, reveal the identity of the person supplying the information, reveal the identity

of an informer, or jeopardize the safety or security of any person, subject them to

harassment, compromise an ongoing investigation, or reveal police investigative techniques.

In these circumstances, Crown counsel need not specify the nature of the evidence withheld,

but must merely indicate its importance. In rare cases, for example where a close colleague

of the accused who has been secretly co-operating with the authorities is one of a very few

witnesses to the accused's alleged criminal act, even mentioning that there is evidence being

withheld may identify and, thus, endanger the source. In these or similar circumstances,

affirmative steps will have to be taken by the authorities to protect the witness. When

evidence that is withheld is ultimately disclosed, the defence must be afforded whatever

adjournments are necessary to make full answer and defence. Where these considerations

do not exist, however, Crown counsel must specify the nature of the evidence withheld. In

this way, the evidence withheld on the ground of relevance only is identified. Defence

counsel may, of course, persuade Crown counsel of the relevance of the evidence withheld.
 -255-

If Crown counsel and defence counsel are unable to resolve the dispute as to the relevance

of the evidence, the trial judge must resolve it.

Paragraph 16 further provides that, upon request, Crown counsel must take any steps

reasonably necessary to facilitate a review by the trial judge of any decision not to disclose.

For example, it is recommended that, in order to both avoid misunderstandings and

facilitate any review that may take place in future, requests for disclosure and responses to

those requests should be in writing.

17. Nothing herein precludes defence counsel from making further requests to Crown counsel
for disclosure of information in the possession of Crown counsel or the investigating
authorities. Defence and Crown counsel are strongly encouraged to narrow and define
the issues to assist Crown counsel in determining whether information is relevant.

Commentary:

This paragraph, providing that nothing in the Committee's recommendations

precludes defence counsel from making further requests to Crown counsel for the disclosure

of information in the possession of Crown counsel or the investigating authorities, is an

important part of the Committee's recommendations with respect to disclosure. Moreover,

paragraph 17 accords with the general philosophy of the Committee that contemplates an

ongoing discussion between Crown and defence counsel, where necessary.

It is impossible to foresee all of the infinite variety of circumstances that may be

involved in a particular prosecution. Initially, some of these circumstances may have been

overlooked or their significance not fully appreciated by Crown counsel, the investigating

authorities, or defence counsel. Further investigation by defence counsel may throw

additional light on these circumstances, and may warrant a request for further information.

Thus, ongoing communication between Crown and defence counsel is essential if disclosure

is to be accomplished effectively and efficiently. Further, defence counsel may not accept
 -256-

the decision of Crown counsel that certain information is irrelevant, and may seek an

opportunity to persuade Crown counsel of the relevance of the information. The parties

must be prepared to engage in good faith in dialogue of this kind, so as to minimize the

necessity of resorting to the trial court for disclosure decisions.

The Committee has been informed that it is the practice of a small number of

defence counsel to send boilerplate letters to the Crown, requesting material that is not

relevant. Such material need not be acquired by the investigators and passed on to the

Crown for disclosure purposes. In the Committee's view, such boilerplate requests ought

to be discouraged, as they are inconsistent with the foregoing requirement that issues be

narrowed and refined to facilitate disclosure.

Reference should also be made to paragraph 12(m), and the commentary thereon.

18. Information in the possession of bodies, such as boards, social agencies, and other
governmental departments, is not in the possession of Crown counsel or the investigating
agency for disclosure purposes. Where Crown counsel receive requests for information
not in their possession or the possession of the investigative agency, the defence should
be so advised in a timely manner in order that they may take such other steps to obtain
the information as they see fit.

Commentary:

The principle that information in the possession of bodies such as boards, social

agencies, and other governmental departments is not in the possession or control of Crown

counsel warrants some further elaboration and illustration.

In R. v. Gingras, supra, the accused was charged with murder. A Crown witness was

a prisoner in a penitentiary in another province. A judge of the Queen's Bench Division

of Alberta granted an order for the service of a subpoena to be served on the person in

charge of the records of the penitentiary. The trial judge on the murder charge quashed the

subpoena for failure to comply with s. 698 of the Criminal Code. The Alberta Court of
 -257-

Appeal dismissed the accused's appeal from the conviction for murder. The Alberta Court

of Appeal's observations with respect to information not in the possession or control of

Crown counsel are illuminating. The Alberta Court of Appeal said:122

This was an ordinary criminal prosecution run by a regular prosecutor in

Alberta's Department of the Attorney-General. The files in question were
held by a federal civil servant in another province. In our view, they were
held by a stranger to the prosecution. If the Stinchcombe decision, supra,
supported production of these files, then it would presumably support
production of files from the Income Tax Department, the telephone company,
a bank, 01 a private hospital.

Counsel for the defence urges that the Crown in Canada is indivisible and
that in any event even ordinary prosecutions by a provincial Attorney-General
must be regarded as being done on behalf of the Crown in the right of
Canada because it is the legislative power of the Parliament of Canada which
authorizes prosecutions. No authority was cited for any of those propositions.
If that line of reasoning were correct, then in order to meet the tests in
Stinchcombe, some months before trial every Crown prosecutor would have
to inquire of every department of the provincial government and every
department of the federal government. He would have to ask each whether
they had in their possession any records touching each prosecution upcoming.
It would be impossible to carry out one per cent of that task. It would take
many years to bring every case to trial if that were required.

That being so, it was almost impossible to know how a prosecutor or anyone
else could before trial apply a Stinchcombe duty of disclosure to such matters
not even in the hands of the police or the prosecutor. For example, must the
Crown before calling each witness check with the Credit Bureau, the Income
Tax Department, and C.P.I.C. to see if he has any convictions or other
discreditable matters in his past? Must the prosecutor try to get medicare
records to see if the witness has ever consulted a psychiatrist? We say no.

(It is to be observed that the Committee has recommended that, upon request, the Crown

must furnish the accused with information as to criminal convictions relevant to the

credibility of material Crown or defence witnesses.)

122 R. v. Gingras (1992), 71 C.C.C. (3d) 53 at 59.

 -258-

The Alberta Court of Appeal, in dismissing the appeal, indicated that the subpoena

was a nullity in that the subpoena contained a requirement that the case management and

medical files of the witness be produced to the party calling the witness, subject to any claim

of privilege, whereas a subpoena must call for testimony or documents to be given to the

Court.

The Committee observes that Form 16 (Subpoena to a Witness) does not require

production of documents to the party calling the witness.

The decision of the Nova Scotia Court of Appeal in R. v. Ryan (1992), 69 C.C.C. (3d)

226, provides an excellent illustration of the procedure to be followed where it is desired

to bring before the Court information in the files of social agencies. In that case, the

accused was charged with sexual assault and trafficking in narcotics. The principal Crown

witnesses at the time these offences were alleged to have occurred were in the care of social

agencies. Before the trial, counsel for the accused had subpoenaed a case worker from each

of the three social agencies involved, and they were instructed by the subpoenas to bring

their files to court.

The trial judge held that the files were privileged, but that they contained information

essential to the defence and entered a stay. In allowing the Crown's appeal and setting

aside the stay, the Court of Appeal held that the trial judge erred in holding that privilege

attached to the files.

The Court noted that the accused was entitled under the Charter to a fair trial in

which he was presumed to be innocent, and the charges against him must be proved beyond

a reasonable doubt. The Nova Scotia Court of Appeal was not, however, insensitive to the

concerns of the case workers over the contents of their files. The Court stated that the trial

judge had a considerable discretion, and it was for the trial judge to decide whether a ban

should be placed on publication, and whether parts of the trial should be heard in
 -259-

camera,123 The Court also held that the proposed evidence must meet the test of
relevancy. The Court also held that it was unnecessary for the case workers to release their
files before trial for a study by others. The Court said at 230:

We find no reason to require the case workers who have been subpoenaed to
release their files for review or study by others before trial. They are
required, as the subpoena directs, "to bring with you and produce at the
hearing ... any and all documents relating to [the named person] that you have
in your possession".

See also the decisions of the Court of Appeal for Ontario in Re Allen and Morissette;
Re Morissette and Desmarais, (1993), 79 C.C.C. (3d) 444, in which the Court concluded, at
p. 446, that where subpoenas were issued in a criminal case to persons or agencies in
possession of records that gave rise to a claim of privilege, "this entire matter is essentially
one of admissibility of evidence, and should have been left to the trial judge."

The Committee observes that there are now many social agencies or other
organizations, such as women's emergency shelters, or counselling services for child sexual
assault victims, that assist a victim in overcoming the trauma resulting from the criminal act.
The laudable efforts of these organizations often depend for their success upon the
confidentiality of their files. Maintaining the confidentiality of files contributes to fostering
and maintaining the trust and confidence of the victim, so that he or she can benefit from
the services the organization has to offer. Sensitive information pertaining to a victim may
also be in the files of other bodies, such as penitentiaries.

The courts cannot overlook the value of maintaining, wherever possible, the
confidentiality of files relating to victims, given the close connection between such
confidentiality and the successful treatment or well-being of the victim. Disclosure
principles must, therefore, be formulated with this important need for confidentiality in
mind. Naturally, material pertaining to a victim or witness that is necessary for a fair trial
must be disclosed. However, in the Committee's view, the need for sensitivity, with respect

123
See also R. v. Seat oyer, supra, at 408 (C.C.C.).
 -260-

to information on victims in the files of social agencies or other organizations, must be

carefully balanced with the accused person's right to make full answer and defence under

the rubric of relevance. Material which is clearly irrelevant need not be disclosed. The

approach in ascertaining the relevance of material in the files of social agencies or other

organizations is, in the Committee's view, captured by the following statement of the

Supreme Court of Canada in Seaboyer, supra, at 408-9:

... the judge must assess with a high degree of sensitivity whether the evidence
proffered by the defence meets the test of demonstrating a degree of
relevance which outweighs the damages and disadvantages presented by the
admission of such evidence.... The trial judge must ensure that evidence is
tendered for a legitimate purpose, and that it logically supports a defence.
The fishing expeditions which unfortunately did occur in the past should not
be permitted.

R. v. Coon (1992), 74 C.C.C. (3d) 146 (Ont. Ct. (Gen. Div.)), aptly demonstrates the

sensitive nature of the balancing of rights, between an accused person and a victim, that

must be undertaken when disclosure of a victim's confidential records is sought. In Coon,

the complainant, whose records were in issue, was represented by her own counsel, who

made representations on the motion. Then, J. recognized that disclosing psychiatric records

of a Crown witness "will constitute a betrayal of confidentiality and an invasion of privacy

whether the disclosure harms the treatment or recovery of the patient or not."124 Then,

J. ruled, however, that such disclosure must none the less take place if it is "essential in the

interests of justice." Among the factors to be examined in determining if such disclosure is

warranted are: the nature and seriousness of the offence; the importance of the witness to

the prosecution; the proximity of the mental disorder to the incidents in issue; the existence

of evidence of a motive to fabricate; the criminal antecedents of the witness; and any other

discreditable conduct of the witness.125 Ultimately, Then, J. ordered the records disclosed,

but ordered them delivered into the custody of a designated person to act as agent of the

Court. The agent was to retain control over the records, while providing full but private

at 74 C.C.C. (3d) 155.

Ibid, at 157.
 -261-

access to the records by Crown and defence counsel. When not being inspected the records

were to be sealed. No photocopies were to be given out.126

19. The Crown may, in its discretion, require written acknowledgement from defence counsel
or an unrepresented accused of disclosure received.

Commentary:

With disclosure now a constitutional right, the provision of which is subject to review

by the trial court, it is appropriate to give serious consideration to the administrative steps

to be taken to create a proper evidentiary foundation for any such review. Obviously, the

Crown must keep adequate records of disclosure that has been made, in the event that it

is alleged that disclosure has been constitutionally deficient. How these records are kept

is a matter of local concern, having regard to prevailing practices and needs, in the various

Crown Attorneys' offices, large and small, across the province, and having regard to existing

relationships with both the local police force or forces, and the local defence Bar.

The recommendation in paragraph 19 is, in essence, a complement to the obvious

need for the Crown to keep some record of its disclosure efforts. The Committee thinks it

fair to require defence counsel or an unrepresented accused to acknowledge, in writing,

receipt of disclosure, as this will help to prevent subsequent disputes about whether any

disclosure, which the Crown's records indicate it provided, was in fact received by the

accused or his or her counsel. Such a practice may also prevent those not authorized to

represent an accused in the criminal matter to which the disclosure applies from acquiring

the disclosure for unrelated purposes, such as civil litigation.

126 In R. v. Paulson, 7 December, 1990, unreported (Ont. Ct. (Gen. Div.)), a subpoena was served seeking
disclosure of the victim's File in the possession of the Criminal Injuries Compensation Board. The Court
inspected the victim's records in issue and ordered the disclosure of only those that were relevant to the issues
in the criminal trial.
 -262 -

20. Where the names and addresses of witnesses are supplied to the defence by the Crown
or investigative agency, the witnesses may be informed that there is no property in a
witness and that the defence is entitled to interview them, but that they are not required
to grant an interview: it is strictly their decision. Care must be taken, however, to ensure
that the witnesses are not left with the impression that they should not grant the defence
an interview. There should be a standard form of providing this advice where it is given.

Commentary;

In many criminal prosecutions, particularly those involving crimes of violence,

witnesses such as the victim, or those close to the victim, are emphatic that they wish to

have nothing to do with the preparation of the defence. However, this common state of

affairs cannot be permitted to cloud over what is clear law, namely, that there is no property

in a witness. Witness interviews cannot be used by the defence to harass or intimidate

witnesses, but, properly conducted, they are an essential aspect of the accused's right to

prepare sufficiently to make full answer and defence. Therefore, an accused's access to the

information witnesses have to give should not, either expressly or implicitly, be curtailed by

statements or conduct on the part of the police or the Crown, that discourage a witness from

making his or her own independent choice to talk, or not talk, to the defence. Indeed, it

may, in some cases, be desirable for Crown counsel to actively facilitate defence contact with

Crown witnesses, as it may lead to early resolution of cases.

Investigators are typically in contact with witnesses well before a charge is laid, and,

thus, well before the preparation of the defence begins. Therefore, it is, in the Committee's

view, essential that the spirit of this recommendation be observed in the treatment of

witnesses at all stages, including the early stages, of the criminal process.

F. Implementing Disclosure

The Committee sees the practical implementation of the preceding disclosure

recommendations as a matter of administration to be worked out having regard to the local

 -263-

practices and procedures already in place. As stated by the Supreme Court, in Stinchcombe,

supra, at 341, "Although the basic principles of disclosure will apply across the country, the

details may vary from province to province and even within a province by reason of special

local conditions and practices." With the obligation to disclose resting upon the Crown, it

is typically Crown counsel who must discharge this obligation. However, in the Committee's

view, this does not preclude disclosure being accomplished by, for example, police personnel

or staff in the Crown Attorney's Office acting as agents for Crown counsel. The Committee

has heard that the handling and storage of a file pertaining to any given prosecution, and

such other tasks as preparing copies of material for disclosure to the defence, is done in

different ways in different jurisdictions. The Committee sees no reason to depart from the

settled practice in any given jurisdiction in this respect, provided full and timely disclosure

can be provided in accordance with the standards set out above.

Further, if administrative changes need to be made to comply with the

recommendations that follow, the Committee thinks it best, at present, to leave it to the

discretion of local Crown Attorneys' offices and local police forces to devise workable

procedures capable of ensuring full disclosure to the defence within a reasonable time.

Among the practical arrangements that the Committee views as desirable would be, for

example, a fixed location for disclosure, at or near to the Crown Attorney's Office, so that

counsel can know where disclosure will be available, and can readily discuss it with a Crown

prosecutor who has knowledge of the case. It is also desirable to record when disclosure

requests are made, when disclosure is provided, and what particular material or information

has been provided. It may also be desirable, as a practical matter, to establish local goals

or administrative targets for the delivery of disclosure, for example in the ordinary case, not

later than 30 days from the time a request is made, or from the time an unrepresented

accused, who does not clearly indicate that he or she does not wish disclosure, is advised of

the right to disclosure by Crown counsel or the Court. In many simple or routine cases,

disclosure can be provided in much less than 30 days. However, goals, targets, or

procedures such as these certainly assist an accused person, and may assist those engaged

in providing disclosure to organize and streamline their efforts.

 -264-

The Committee is likewise mindful of the suggestion by the Supreme Court, in

Stinchcombe, supra, at 341-42, that it would be

useful if the under-utilized power conferred by s. 482 of the Criminal Code,

R.S.C. 1985, c. C-46, which empowers superior courts and courts of criminal
jurisdiction to enact rules, were employed to provide further details with
respect to the procedural aspects of disclosure.

While the Committee has not concluded that rules in addition to its

recommendations are necessary at present, the Committee none the less encourages ongoing

discussion among the judiciary, the defence Bar, and the Ministry of the Attorney General,

aimed at assessing the need for, and the feasibility of, disclosure rules. Discussions

pertaining to rules might address, for example, the matters mentioned above, such as the

manner and timing of disclosure. Such ongoing consultation can help to ensure that if rules

do appear necessary, they will be formulated with the benefit of sufficient input from the

parties affected. Experience gained under the system contemplated by the Committee's

recommendations may also be helpful in formulating particular rules that are responsive to

the needs that arise.

In the few recommendations that follow, the Committee addresses a number of

practical issues with respect to the provision of disclosure. These issues are all, in the

Committee's view, of sufficient importance that they warrant an exception to the

Committee's general preference to leave administrative issues to the decision-makers in

each jurisdiction. They are all issues which, in the Committee's view, ought to be

approached uniformly across the province.

1. Police Disclosure to the Crown

42. The Committee recommends that the Solicitor General co-ordinate with federal

authorities and that both issue such directives as are necessary requiring all police forces

operating within the province of Ontario to be aware of and comply with the Attorney General's
 -265-

Directive on Disclosure in their relations with Crown prosecutors. These directives should also

make clear that the police and other investigators

(a) are bound to exercise reasonable skill and diligence in discovering all relevant
information, even though such information may be favourable to the accused;

(b) are under a duty to report to the officer in charge or to Crown counsel all
relevant information of which they are aware, including information favourable
to an accused, in order that Crown counsel may discharge the duty to make full
disclosure; and that

(c) a failure to disclose all relevant information as required is a disciplinary offence.

The present recommendation is made in recognition of the relationship of

independence that exists between Crown counsel and the police. As discussed above. Crown

counsel cannot issue binding directions to the police. Police officers exercise an important

measure of independence in investigating alleged offences and laying charges. However,

police officers are accountable to the internal chain of police command. In addition, police

forces, whether federal or provincial, are accountable to the public through the relevant

Solicitor General.

To ensure that Crown counsel can effectively discharge the disclosure obligations

placed upon them by, inter alia, the Stinchcombe case and the Committee's

recommendations, the Committee recommends that the Attorney General's Directive on

Disclosure likewise issue as a directive or standing order to all police officers, in both

federal and provincial forces, operating in the province. Such a directive or standing order

will, in the Committee's view, help to ensure the seamless provision of disclosure in Ontario,

by placing the pre-existing police obligation to disclose to Crown counsel on an equal

footing with Crown counsel's duty to disclose to an accused person. The Marshall

Commission made a similar recommendation, recognizing the separate lines of

accountability of Crown counsel and the police, yet also recognizing that these separate lines
 -266-

of accountability could not be permitted to frustrate efforts by an accused person to exercise

the right to full disclosure.127

Implementing this recommendation will require action by both provincial and federal

authorities. In so far as the Ontario police forces are concerned, this recommendation can

be implemented pursuant to the Ontario Police Services Act, supra, s. 3(l)(j), which provides

that the Solicitor General shall "issue directives and guidelines respecting policy matters" as

may be necessary. The R.C.M.P. are not subject to direct control by the Ontario Solicitor

General. Accordingly, to ensure that R.C.M.P. officers operating within Ontario approach

disclosure in the same way as provincial forces, additional steps will have to be taken. For

example, a regulation requiring compliance with the Attorney General's Directive on

Disclosure may be passed by the Governor in Council, pursuant to s. 21(l)(b) of the Royal

Canadian Mounted Police Act, R.S.C. 1985, R-10. Regulations passed in this way become

part of the duties of R.C.M.P. officers pursuant to s. 18(d) of the Act. Alternatively, the

Commissioner of the R.C.M.P. can issue a standing order having the same effect, pursuant

to s. 21(2)(b) and s. 18(d) of the Act.

2. Paying for Disclosure

The issue of payment for disclosure has generated much discussion and debate in a

number of jurisdictions across the province. There is, at present, some difference of opinion

as to how the costs of providing disclosure should be shared among the Crown, the police,

and an accused. Practices regarding payment for disclosure vary across the province. At

issue are questions of fairness to an accused person, and questions of cost sharing among

different branches and levels of government.

43. The Committee recommends that the police should bear all production costs including

labour, equipment, and material costs associated with the preparation and delivery to the Crown

of the Crown Brief photographs, and other exhibits or material used in the prosecution of a case

127
Recommendation 42, Vol. I, at p. 244.
 -267-

in court. The Ministry of the Attorney General will bear the actual material costs needed to

produce second or subsequent copies of Crown Briefs intended for disclosure purposes to defence

counsel or to the accused person.

The Committee has heard, in some detail, about various working relationships that

exist between Crown Attorneys' offices and the police, with respect to the production of and

payment for material provided to the defence through Crown counsel in fulfillment of

disclosure obligations. In many respects, the relationship varies greatly from jurisdiction to

jurisdiction. The Committee is, therefore, of the view that a recommendation on cost

sharing between Crown counsel and the police is desirable, so that financial planning can

be undertaken by both the Ministries of the Solicitor General and the Attorney General,

on the basis of shared assumptions about each other's respective obligations province-wide.

The Committee is also of the view that such a recommendation is necessary so that local

police forces across the province are treated equally in their dealings with the local Crown

Attorney's Office.

As discussed above, in the introduction to this chapter, the duty of the police to

disclose to the Crown is undoubted. This duty includes, in the Committee's view, providing

to the Crown, at the expense of the police, one copy of the materials to be disclosed.

Providing one copy of the material relevant to the case, perhaps in the format of a Crown

Brief, is simply one aspect of the police officer's responsibilities in marshalling a case for

presentation in court by Crown counsel. Crown counsel are, as discussed above,

independent of the police in the conduct of prosecutions. Therefore, Crown counsel must

be provided with a package of material that is sufficiently comprehensive to permit the

prosecutorial functions of charge screening, providing disclosure, preparing the case, and

presenting it in court to be discharged independently of the police.

Further, Crown counsel need not, in the Committee's view, pay for the material

provided for the Crown's use alone. Crown counsel's duty is to assess and, if warranted,

conduct, impartially, the case as presented by the police. It is, in the Committee's view,

inconsistent with this impartiality to have Crown counsel paying for the Brief received from
 -268-

the police. On the other hand, it is appropriate in the Committee's view for the police

force, whose investigators have concluded on reasonable grounds that charges should be

laid, to bear the cost associated with providing the case to the Crown, so that it may be

conducted in court.

In the Committee's view, however, a different situation prevails with respect to

subsequent copies of material needed for disclosure purposes. Fundamentally, disclosure

to an accused person is the duty of the Crown. It is not the duty of the police, although, of

course, disclosure cannot be accomplished by the Crown without the co-operation of the

police. Therefore, the Committee thinks it right for the Ministry of the Attorney General

to bear the actual costs of the materials needed to produce the disclosure necessary to

discharge Crown counsel's obligations to an accused person.

In simple terms, then, the Committee's recommendation pertaining to the sharing of

costs of disclosure between the Crown and the police parallels directly the essential duties

of each, with each bearing the costs of their own respective duties.

The Committee observes that, as a practical matter throughout the province, it is, for

the most part, the police who are engaged in assembling and preparing the material that

ultimately forms part of the investigative file, or the Crown Brief. Therefore, when

additional copies of material are necessary for disclosure purposes, it may often be most

convenient and economical if the police prepare it, because they will be able to take

advantage of established facilities and procedures for doing so. Indeed, if disclosure

requests are routinely made, it may be that it is most convenient and economical, in some

cases, for two copies of the material to be prepared by the police at the outset: one for

Crown counsel, and one for the defence. The Committee sees nothing wrong with this

practice, provided the disclosure provided is sufficient in all respects, and provided

disclosure material is not needlessly produced in large numbers of cases in anticipation of

disclosure requests that do not materialize. The Committee has been informed that in some

jurisdictions, disclosure is requested in as few as 30 per cent of the cases.

 -269-

In those situations where the police produce material for disclosure by Crown

counsel, the police may recover from the Crown the material costs of producing that

disclosure material. Other costs such as labour and capital costs are not, in the Committee's

view, recoverable by the police, as they are, to some extent, incurred by the police in any

event, as part of their duty to provide Crown counsel with the initial copy of the materials

relevant to the case. An exception to this principle concerning the recovery of labour costs

would be the labour necessary to make a second copy of a model, or other visual aid that

had to be especially constructed for trial, as opposed to merely reproduced or photocopied.

Finally, the Committee notes that the actual method of processing a case for

disclosure purposes varies across the province. Some jurisdictions make extensive use of

computer reports, so that disclosure is often simply a matter of printing out what is in the

computer file. In other jurisdictions, as noted above, the police simply prepare two copies

of every brief simultaneously. In still other jurisdictions, extensive use is made of original

documentation, with correspondingly limited production of briefs. The Committee is of the

view that the present recommendation need not affect these pre-existing practices, provided

cost sharing arrangements can be fairly made in accordance with the recommendation and

provided the disclosure made available accords, in all other respects, with the Committee's

recommendations.

44. The Committee recommends that an accused person should not have to pay for basic

disclosure.

In making the present recommendation, the Committee starts with the proposition

that disclosure is a constitutional right possessed by every accused person. A constitutional

right in an accused person places a correlative obligation upon the state to fully respect that

right. In the case of disclosure, the constitutional right is one that places a correlative

obligation upon the state to affirmatively provide a benefit to an accused person, as opposed

to, for example, merely refraining from interfering with a fundamental freedom, such as

freedom of expression. Furthermore, this obligation placed upon the state to affirmatively

provide disclosure to an accused person is not defined in conditional terms. St therefore

 -270-

follows, in the Committee's view, that the affirmative obligation upon the state to provide

this benefit to an accused person cannot be discharged conditionally, for example, upon the

payment of a set fee.128

As stated above, in a number of the Committee's disclosure recommendations and

the discussions thereon, the manner of disclosure is, subject to the Attorney General's

directive, in the discretion of Crown counsel. Full disclosure does not necessarily mean the

automatic provision of copies of all disclosure materials, although it usually will be

accomplished in this manner. Disclosure may be sufficient if an accused is simply apprised

of the existence of the material in issue, and afforded such access to it as is necessary to

make full answer and defence. It therefore might be argued that charging a fee for the

production of copies of disclosure is permissible, given that the provision of copies is not

mandatory in any event. The Committee, however, takes a different view.

It cannot be overlooked, in the Committee's view, that, in the great bulk of cases, the

Crown's disclosure obligations will be discharged by providing photocopies of the necessary

materials. As a practical matter, in routine cases with no particularly sensitive disclosure

material, providing photocopies to the defence is most convenient for everyone concerned.

Clearly, copies are most convenient for the defence, who can then review the material in

whatever manner they choose. However, in addition, providing photocopies of disclosure

materials relieves Crown counsel, or perhaps the police, of the expense and inconvenience

that would ensue if every accused person or defence counsel in every criminal case had to

review the original disclosure material at the Crown's office, or wherever else it may be

kept.

In light of the considerable advantages to all parties of simply providing photocopies

of the requisite disclosure materials to the defence, the Committee expects that this will

become the usual method by which the Crown discharges its obligations. It therefore

follows that, if a fee is charged for disclosure, the nature of the disclosure provided will, in

128
See, for example, R. v. Rowbothum (1988), 41 C.C.C. (3d) 1 at 65-68 (Ont. C.A.).
 -271-

practical terms, differ, based on the ability of the accused person to pay. The Committee

does not think this is right.

The Committee has recognized, in its disclosure recommendations, that there will be

occasions when Crown counsel can, in the exercise of his or her discretion, refrain from

providing any copies of disclosure material at all, and provide, instead, a sufficient

opportunity to inspect the material. However, this will be on those relatively rare occasions

when the materials concerned are particularly sensitive. In these cases, then, providing

disclosure without providing copies will not be based on the essentially irrelevant

consideration of an accused's financial means. It will be justified on the basis of valid public

interest concerns such as the safety or security of any person or persons, or the preservation

of ongoing investigations or investigative techniques.

The Committee has been informed that, at present, most jurisdictions do not charge

an accused person for disclosure. Those that do charge for disclosure, charge varying

amounts, some charging a flat rate, some charging by the page, and some charging both a

flat rate and a per page rate for any number of pages over a given minimum. It is not right,

in the Committee's view, that whether an accused must pay for disclosure or not, and if so

how much, should depend upon nothing more than where the offences in issue are alleged

to have occurred. Further, it appears to the Committee that, at present, the amounts

collected province-wide from accused persons as fees for disclosure are not extremely large

in the overall context of the administration of justice in Ontario. The amounts collected at

present rates are in the order of $250,000 to $300,000 annually. Therefore, the present

recommendation does not, in the Committee's view, deprive the administration of justice

in Ontario of a significant amount of money. It must be remembered that, where there is

presently a fee for disclosure, that fee, is in many cases, already paid as a disbursement by

the Ontario Legal Aid Plan which is, in part, publicly funded.

The Committee has carefully studied the issue of the total cost to the province of

providing basic disclosure in routine cases. The study commissioned by the Committee is

reproduced in its entirety as Appendix I to this report. Based on the assumptions as set out
 -272-

in that report, it is estimated that basic disclosure for routine cases can be provided for

approximately $500,000 per year. (Complex or unusual cases will, of course, present unique

circumstances, the cost implications of which cannot be elucidated in advance.) Five

hundred thousand dollars per year is not, in the Committee's view, an unreasonably large

cost to ask the state to bear to ensure that all accused persons are treated alike with respect

to the costs of disclosure. This cost to be borne by the province must also be considered

in light of the Committee's entire set of recommendations, which is, in large measure, aimed

at facilitating early but fair resolution of cases, thereby saving the expense of trials.

The Committee's recommendation does not go so far as to accord an accused person

an unrestrained right to demand unlimited disclosure materials, free of charge, from the

state. As noted above, the manner of disclosure is, subject to the Attorney General's

directive, in the discretion of the Crown. The present recommendation does not depart

from that principle, recognized by the Supreme Court in Stinchcombe. Indeed in an

unusually large or complex prosecution, disclosure may be accomplished by providing

adequate opportunity to inspect the volumes of material available.

Further, the Committee's recommendation is that the accused shall not be charged

for "basic" disclosure. This means that an accused is entitled to receive, free of charge, only

those materials that are supplied to Crown counsel for use in prosecuting the case. An

accused person can pay for and receive as much additional material as he or she desires,

provided that it is relevant and not otherwise properly withheld. In the simple cases which

make up such a large proportion of the workload of Ontario's courts, and where no Crown

Brief is prepared, this will mean photocopies of a few pages of documents, for example,

witness statements, a synopsis, the information, an occurence report, or an alcohol influence

report and blood/alcohol certificate.

In a larger case, where a Crown Brief is prepared, the "basic" disclosure that is to be

provided free of charge is simply the Brief itself. It would not include, for example,

photographs that are not to be introduced as exhibits. Investigators may attend at the scene

of a crime and take hundreds of photographs. Of these, only a handful might end up in the
 -273-

Crown Brief as potential exhibits in the Crown's case. Those to be used by the Crown at

trial should be provided as part of the basic disclosure.12^ However, the large scale

reproduction of all photographs may be prohibitively expensive. Defence counsel may

properly request an opportunity to view any photographs taken. However, it would not be

unreasonable, in the Committee's view, for defence counsel to pay for any reproductions of

photographs requested following a viewing of the complete set of photographs taken. The

Crown has, in providing an opportunity to inspect the photographs, discharged its obligation

to disclose. Thus, the subsequent reproduction for use by the defence is essentially a cost

of conducting the defence.

The Committee is of the view that defining the basic disclosure which an accused is

to receive free of charge by reference to the Crown Brief is a fair and workable standard.

In the smaller or routine cases that make up the vast majority of prosecutions in Ontario,

the disclosure to be provided is neither lengthy nor expensive to prepare. In the larger or

more complex cases, Crown counsel clearly must know both the essential strengths and the

essential weaknesses in any case. Therefore, the important material that assists both the

prosecution and the defence will invariably be found in the Crown Brief. The Brief may

also organize the disclosure material in a helpful way. In many of the more complex cases,

therefore, the Crown Brief will provide, free of charge, everything necessary by way of

disclosure. Thus it is appropriate, in the Committee's view, that the defence pay a

reasonable fee for the reproduction of additional material thought desirable. Reference

should also be made to Appendix I, for illustrations of what the Committee considers to be

"basic" disclosure in a variety of types of prosecutions.

3. Disclosure and Accused Persons in Custody

45. The Committee recommends that the Attorney General recommend to Cabinet and the

federal Minister responsible for penitentiaries that procedures and facilities be set up for

129
Historically, the Crown has paid for the photographs used by the judge and/or jury at trial. The
Committee sees no need to change current practice in this respect.
 -274-

controlling disclosure materials for accused who are in custody while, at the same time,

providing the accused supervised yet full and private access to these materials.

In paragraph 9(b) of the Committee's recommendations for a new disclosure

directive, supra, the Committee provides that an unrepresented accused person is entitled

to adequate and private access to disclosure materials. Clearly, such access to disclosure

materials is necessary for an accused person to prepare to make full answer and defence.

However, as noted in the introductory portion to this chapter, and in the discussion

following recommendation 9(b), there is great potential for very serious misuse of disclosure

materials if they are left in the unsupervised possession of an accused person. Accordingly,

the present recommendation complements paragraph 9(b), by recommending that the

necessary steps be taken to provide secure facilities in custodial institutions for the review

of disclosure materials.

The administrative details of providing such access to disclosure materials in custodial

facilities is, in the Committee's view, best left to those directly involved in managing these

facilities. It seems to the Committee that this recommendation would involve little more

than arranging secure storage of the disclosure materials, and a secure room where an

incarcerated accused person could review the materials after signing them out. Steps would

also have to be taken to ensure that all materials signed out are returned before the accused

leaves the secure room where he or she has reviewed them.

 CHAPTER IV: RESOLUTION DISCUSSIONS

A. The Development of Resolution Discussions

I
The practice of what is often referred to as "plea bargaining" has had something of a varied

career in the criminal justice system, and it appears that it is still evolving. Virtually every

aspect of the practice has been the subject of some debate in the academic literature, and

among practitioners.1 There has even been considerable debate about what the practice

consists of, and by what name it should be known.2 For example, the Law Reform

Commission of Canada, in its 1975 Working Paper 15,3 noted that "Much of the controversy

surrounding plea bargaining results from disagreement as to what the practice is."4 The

Commission went on to define plea bargaining as "any agreement by the accused to plead

guilty in return for the promise of some benefit."5 However, by 1989, when the comment

was made that it was "important to discard the vocabulary of bartered justice,"6 the Law

Reform Commission of Canada was expressing a preference for the terms "plea discussions,"

and "plea agreements." The Supreme Court of Victoria, Australia, has also expressed the

view that the term "plea bargaining" is "an ambiguous expression which is better avoided.

It is a misnomer of most situations it is used to cover."7

1 See, for example, S.N. Verdun-Jones and F.D. Cousineau, "Cleansing the Augean Stables: A Critical
Analysis of Recent Trends in the Plea Bargaining Debate in Canada" (1979), 17 Osgoode Hall L.J. 227, at p. 237;
for the varying perspectives of practitioners, see G. Wheeler, 'The Police, the Crowns and the Courts: Who's
Running the Show?" (1987), 11 Provincial Judges Journal 28.

F.D. Cousineau and S.N. Verdun-Jones observed in "Evaluating Research into Plea Bargaining in Canada
and the United States: Pitfalls Facing the Policy Makers" (1979), 21 Canadian Journal of Criminology 293, at p.
295 that, "a persistent flaw which manifests itself throughout the vast body of literature dealing with plea
bargaining is a stubborn reluctance to construct clear operational definitions of the phenomenon being discussed."

Criminal Procedure: Control of the Process.

4 Ibid., at p. 45.

5 Ibid.

6 S.A. Cohen and A.N. Doob, "Public Attitudes to Plea Bargaining" (1989-90), 32 Crini. L.Q. 85, at p. 87.

7 R. v. Marshall, [1981] 1 V.R. 725 at 732.

 -276-

The shifting emphases in the debate surrounding the practice demonstrate the extent

to which attitudes toward "plea bargaining," "plea discussions," or "resolution discussions"

have evolved over time. In 1973, the Ontario Law Reform Commission perceived only a

very limited scope for the practice, and suggested strict guidelines to control it.8 The Law

Reform Commission of Canada took the position, in its 1975 paper, that the drawbacks of

plea bargaining were "overwhelming."9 In the Commission's view, plea bargaining detracted

from the "pursuit of the legitimate goals of the criminal justice system," and destroyed "the

appearance and reality" of justice.10 However, in 1972, in a memorandum to all Crown

Attorneys, dated 30 June, 1972, the Attorney General of Ontario set forth guidelines

applicable to "plea discussions."* 11 Then, on 26 February, 1976, the Attorney General issued

a further memorandum, which clarified two of the matters addressed in 1972.12

The arguments relied upon by the Law Reform Commission of Canada in 1975 for

their strongly worded objection to the practice of plea bargaining were, for the most part,

representative of the arguments found in the literature generally.13 Perceived problems

Q
Ontario Law Reform Commission, Report on the Administration of Ontario Courts Part II (1973) Chapter
2, at pp. 119-125, 127-128. The proposed guidelines covered matters such as expediency, gravity of charges,
inducing a plea, the quality of the evidence supporting a charge, independence in the exercise of discretion,
position on sentence during discussions, and Chambers discussions with the judge.

9 Working Paper No. 15, supra, at p. 45. Professor Doob makes the point that as these views are expressed
in a working paper, rather than in a Report to Parliament, they are to be considered tentative: see "Public
Attitudes to Plea Bargaining," supra, at p. 85.

10 Ibid., at p. 45.

11 These guidelines set out relevant considerations for the conduct of plea discussions, and set limits to the
practice, for example, prohibiting Crown counsel from doing anything to compel a plea, or from accepting a plea
to a charge that cannot be prosecuted because it is barred at law.

12 The 1976 clarifications advised Crown counsel that a plea could not be accepted for expediency, to reduce
workload. However, expediency in this sense excluded weaknesses in the Crown's case, which could be a valid
reason to accept a plea to a lesser offence. Crown counsel were also advised to make clear on the record in
open court the reason for accepting a plea to a lesser offence, to "satisfy the public in each case that there is
nothing sinister or clandestine in the process of plea discussion."

13 See, for a leading example, G.A. Ferguson and D.W. Roberts, "Plea Bargaining: Directions for Canadian
Reform" (1974), 52 Can. Bar Rev. 497, at pp. 542-554.
 -277-

with plea bargaining include its secrecy; the fact that negotiated pleas bypass the procedural

protections of a trial by an impartial judge and, thus, prevent coerced pleas or other

unethical conduct being discovered; the tendency for counsel to take unduly harsh tactical

positions to obtain bargaining leverage (a practice which the Committee has noted and

disapproved of in the preceding chapter); and concern that plea bargained outcomes will

bear little relationship to the circumstances of the offence or offender, because plea

bargaining is a system "in which the merits of the case take second place to the bargaining

strength and skills of the parties."14

Ultimately, much of the objection to plea bargaining found in the literature is

premised on the assumption that bartering and justice are two very different ideas: "Justice

should not be, and should not be seen to be, something that can be purchased at the

bargaining table."15

The Law Reform Commission of Canada's 1975 Working Paper noted that "plea

bargaining" was already an established practice in many jurisdictions, and observed that it

enjoyed support on the ground that without it, "the administration of justice would grind to

a halt."10 However, the Commission rejected this necessity-based argument in support of

the practice, on the ground that it would be sacrificing principle to expediency.

By 1989, however, the Law Reform Commission, noting that "our legal system has

undergone significant change"17 since the 1975 study on the subject, was in favour of

14 Working Paper No. 15, supra, at p. 46.

15 Ibid.

16 Ibid., at p. 47.

17
Law Reform Commission of Canada, Plea Discussions and Agreements, Working Paper No. 60 (1989), at
 -278-

retaining the practice of what it now referred to as "plea discussions."18 The Commission

stated that:

In our estimation, it would be a mistake to dismiss plea negotiation as a

distasteful practice made necessary only by the unhappy reality of an
overburdened criminal justice system. Plea negotiation is not an inherently
shameful practice; it ought not, on a theoretical level, be characterized as a
failure of principle.1''

While approving of the practice of "plea discussions", the Law Reform Commission

of Canada noted that in 1989 it was still a matter of some controversy.20 That controversy

remains in some circles to this day. Different commentators continue to argue strongly in

favour of outright abolition of the practice, unregulated encouragement of the practice, and

a variety of positions occupying the middle ground between these extremes.21 The

Committee observes, however, that much of the debate surrounding the practice at present

is found in the American literature, where, generally speaking, the relevant procedure differs

markedly from that which exists in Ontario.

One example of the marked differences in the American practice is the United States

Supreme Court's holding that criminal defendants can enter a negotiated plea of guilty even

while continuing to protest their innocence: North Carolina v. Alford, 400 U.S. 25 (1970).

Another example is the rule in some jurisdictions that, if the sentencing judge does not

accept a joint submission as to sentence made by counsel as part of a plea arrangement, the

18 Ibid., at p. 5, n. 17.

19 Ibid., at pp. 8-9.

20 Ibid., at p. 5.

21 See, for example, R.E. Scott and W.J. Stuntz, "Plea Bargaining as Contract" (1992), 101 Yale L.J. 1909;
F.H. Easterbrook, "Plea Bargaining as Compromise" (1990), 101 Yale L.J. 1969; S.J. Schulhofer, "Plea Bargaining
as Disaster" (1992), Yale L.J. 1979; and R.E. Scott and W.J. Stuntz, "A Reply: Imperfect Bargains, Imperfect
Trials, and Innocent Defendants" (1992), 101 Yale L.J. 2011.
 -279-

accused is entitled to be advised of that fact, and to be permitted to withdraw his or her

plea of guilty.22 The very different position in Ontario is well illustrated by the decision

of the Court of Appeal in R. v. Rubenstein (1987), 41 C.C.C. (3d) 91. In Rubenstein, the

accused, fully aware of his rights, entered a plea of guilty to a charge of wash trading and

two counts of fraud. Crown and defence counsel made a joint submission for a non¬

custodial sentence. The sentencing judge indicated that he would not accept the joint

submission, whereupon the accused sought to withdraw his plea. The trial judge refused to

permit the plea to be withdrawn, stating that such a practice would "result in Judge shopping

in the worst reprehensible way [sic]." He sentenced the accused to imprisonment for five

years. The Court of Appeal held that the trial judge did not err in refusing to permit the

plea to be withdrawn, stating that

The power of the trial judge to impose sentence cannot be limited to a joint
submission, and the joint submission cannot be the basis upon which to seek
to escape the sentencing judge when it appears that he chooses to reject the
joint submission. As Judge Draper observed, an accused who could thus
withdraw his plea could simply keep doing so until he found a trial judge who
would accept a joint submission.... To permit an accused to withdraw his plea
when the sentence does not suit him puts the court in the unseemly position
of bargaining with the accused.

The Court, therefore, dismissed the appeal against conviction. The appeal against sentence

was, however, allowed and the sentence reduced to two years less a day and a $25,000.00

fine.23

While the subject of resolution discussions undoubtedly continues to foster debate

in some circles, it can now be said that, generally speaking, the practice of some sort of pre-

See, for example, the United States Code Annotated, Title 18, Federal Rules of Criminal Procedure, Rule
11(e)(4), as amended.

23 See also R. v. Morrison (1981), 63 C.C.C. (2d) 527 (N.S.S.C.A.D.), wherein the Court of Appeal stated:
"I completely reject the appellant's argument and state as firmly as I can that Courts are not bound by plea
bargaining agreements made by counsel."
 -280-

trial discussions aimed at resolving the issues in a criminal prosecution has gained

widespread support. The practice has been seen as acceptable in Ontario for a considerable

length of time.24 The Court of Appeal for Ontario has held in the context of resolution

discussions that such "discussions can be appropriate and helpful in certain cases."25 In

R. v. Fegan, 5 April, 1993, as yet unreported, the Court recognized the great value of

resolution discussions as a method of expediting the trial process, while at the same time

according benefits to both the accused and the Crown. Further support for the practice may

be taken from the Court of Appeal's discussion of the broad discretion of Crown counsel

in this regard in R. v. Nciraindeen (1990), 80 C.R. (3d) 66 and R. v. Wood (1988), 43 C.C.C.

(3d) 570.26 The Law Society of Upper Canada's Rules of Professional Conduct both

endorse the practice and place limits upon it: see Rule 10, Commentary 12. The Canadian

Bar Association's Code of Professional Conduct takes a similar position. The Marshall

Commission27 approved of what it referred to as plea discussions and plea agreements,

adding that they must be governed by the principles of openness, voluntariness, accuracy,

appropriateness, and equality. The Canadian Sentencing Commission28 approved of the

practice, subject to some guidelines that cover many of the same matters addressed in the

Committee's recommendations, below. The English Court of Appeal cautiously approved

of the practice, again subject to limits, in 1970.20 Indeed, that Court has taken a more

24 See G.A. Martin, 'The Role and Responsibility of the Defence Advocate" (1969-70), 12 Crim. L.Q. 376,
at pp. 389-391.

25 R. v. Dubien (1982), 67 C.C.C. (2d) 341 at 346.

26 See also R. v. Brown (1972), 8 C.C.C. (2d) 227 (Ont. C.A.), where the Court of Appeal altered a term of
imprisonment from consecutive to that imposed for another offence to concurrent. This disposition was
consistent with a plea agreement reached, upon which Crown counsel had vacillated during submissions in open
court.

27 Recommendation 43, Vol. 1., at pp. 244-247.

28 Sentencing Reform: A Canadian Approach (1987), at pp. 404-429.

27 R. v. Turner, [1970] 2 W.L.R. 1093 at 1097-98. The Court of Appeal held that a trial judge ought never
to say that on a plea of guilty, one sentence will be imposed, but after a plea of not guilty and a trial, a more
severe sentence will be imposed.
 -281-

expansive approach to the practice more recently.30 The Turner decision appears to be the

law in New Zealand.31 The practice is recognized in Australia: see, for example,

Prosecution Policy of the Commonwealth (2nd ed. 1990), ss. 5.12-5.18, where the practice is

referred to as "charge bargaining."32 The United States Supreme Court has approved of

the practice, at least since 1970.33 The United States Federal Rules of Criminal Procedure

specifically endorse the practice, and provide procedures to govern it.34 The American

Law Institute's Model Code of Pre-Arraignment Procedure suggests that a plea discussion

conference should be mandatory at the request of either party.35 Finally, both the

American Bar Association, in their Standards for Criminal Justice?6 and the National

District Attorneys' Association, in their National Prosecution Standards,37 approve of the

practice.

46. The Committee is of the opinion that resolution discussions are an essential part of the

criminal justice system in Ontario, and, when properly conducted, benefit not only the accused,

but also victims, witnesses, counsel, and the administration of justice generally.

30 R. v. Herbert (1992), 94 Cr. App. R. 230. One commentator made the point in 1976 that "in England ...
it is imperative to recognise that plea-bargaining is a legal fact of life in criminal cases": R.D. Seifman, 'The Rise
and Fall of Cain", [ 1976] Crim. L.R. 556, at p. 560.

31 J.M.E. Garrow, R.A. Caldwell, Criminal Law in New Zealand (1981), at p. 319. See also the New Zealand
Law Commission's Report No. 14, Criminal Procedure, Part One: Disclosure and Committal (1990), at p. 2,
"Justice and Efficiency".

32 See also R. v. Marshall, [1981] 1 V.R. 725 at 732 (Victoria Sup. Ct.).

33 Brady v. United States, 90 S. Ct. 1463, 1470-1471 (1970).

34 Federal Rules of Criminal Procedure (1988), Rule 11(e), (f). See also the Principles of Federal Prosecution,
Part D, "Entering into Plea Agreements".

35 American Law Institute, A Model Code of Pre-Arraignment Procedure (1975), s. 350.3(1).

36 See Standards 3-4.1 to 3-4.3, Standards 4-6.1, 4-6.2, and Standards 14-3.1 to 14-3.4. The Standards in
Chapters 3 and 4 have recently been rewritten and the Standards in Chapter 14 are currently being rewritten by
the American Bar Association. The Committee has been advised that the new Standards will not be available
until late 1993 at the earliest.

See ss. 66.1 - 72.1, and Commentary thereon.

 -282-

In addition to being generally in favour of properly conducted resolution discussions,

the Committee takes a broad view of what that term entails. Resolution discussions, as

contemplated by the Committee, include much more than simply plea discussions, which

may themselves be quite broad.38 Resolution discussions include any discussions between

counsel aimed at resolving any issues that a criminal prosecution raises. In the Committee's

view, there is no reason to draw any distinction between the resolution of issues that will

shorten the trial, and the resolution of issues that will make a trial unnecessary. This is

precisely the approach taken in Rule 28 of the 1992 Ontario Criminal Proceedings Rules,

which deals with pre-hearing conferences conducted pursuant to s. 625.1 of the Criminal

Code. In accordance with Rule 28.03(2), a pre-hearing conference judge may inquire as to

a broad range of issues that may arise at or before trial. The breadth of discussion at a pre-

hearing conference, pursuant to Rule 28, extends to any matter "that may assist in promoting

a fair, just, and expeditious trial," and includes: disclosure issues; any applications to be

made during or before trial, such as Charter applications, change of venue, voluntariness voir

dires, etc.; jury selection issues; agreements of fact or admissions; the simplification of the

proceedings, for example, by agreeing upon continuity of exhibits or the elimination of

proposed witnesses; the length of the proceedings; and, pursuant to 28.03(2)(d),

oq ... . .
For example, S.A. Cohen and A.N. Doob, in "Public Attitudes to Plea Bargaining", supra, at pp. 86-87,
suggest that discussions relevant to plea could cover such matters as: (a) a reduction of the charge; (b) a
withdrawal of charges; (c) a promise not to proceed on other charges; (d) a recommendation as to .the type of
sentence to be expected; (e) a recommendation as to the severity of sentence; (f) a Crown election to proceed
summarily on a hybrid offence; (g) a promise not to seek a sentence of preventive detention; (h) a promise not
to seek an enhanced penalty where the Criminal Code allows for one in the event of a prior conviction for the
same offence; (i) a promise not to charge other persons; (j) a promise concerning the nature of any submissions
to be made to the sentencing judge (e.g. not to mention aggravating facts or circumstances when they are in
dispute); (k) a promise not to compel a jury trial through a preferred indictment or through s. 568 of the Code',
(1) a recommendation or promise as to the place of incarceration or arrangements concerning release (e.g., day
parole); (m) an arrangement for the sentencing to take place before a particular judge; and (n) a promise not
to appeal the sentence imposed. The foregoing enumeration of the possible breadth of plea discussions must,
however, be read in light of the Committee's recommendations which follow, as some of the factors enumerated
above may not be consistent with those recommendations in some circumstances. See also Ferguson and
Roberts, supra, at pp. 509-517.
 -283-

the possibility of resolution of any or all of the issues in the proceedings,

including the possible disposition of any or all counts contained in the
indictment whether by plea of guilty or otherwise.

An apt definition of resolution discussions as the Committee views them is found in

D.W. Perras, "Plea Negotiations" (1979-80), 22 Crim. L.Q. 58, at pp. 58-59:

A proceeding whereby competent and informed counsel openly discuss the

evidence in a criminal prosecution with a view to achieving a disposition
which will result in the reasonable advancement of the administration of
justice.

In the Committee's view, there are many reasons, in principle, policy, and practicality, to

favour the practice of counsel openly engaging in discussions that have as their objective the

responsible resolution of trial issues before a trial takes place.

The propriety in principle of resolution discussions flows, in large measure, from the

very nature of our criminal justice system. It is, in essence, adversarial, and, as such, accords

to the parties a large discretion to determine the manner and form of the proceedings. The

extent of the discretion inherent in our system, and the corresponding onus on counsel to

exercise that discretion responsibly and with integrity, is discussed in detail in Chapter I of

this Report. It is, in the Committee's view, only right that a system which affords counsel

so much latitude in the presentation of a criminal prosecution to the Court, and expects

counsel to meet such a high standard of integrity and responsibility, would extend to counsel

the discretion to resolve issues before trial by mutual agreement.39

39 The Honourable Mr. Justice Edson L. Haines made the following comment in a Book Review of Brian
Grosman's, 'The Prosecutor", 48 Can. Bar Rev. 347, at p. 349:

The administration of criminal justice recognizes the discretion of the police

to charge, the discretion of the Crown Attorney to present several charges and
proceed on one or none, and the power of the court to impose varying
sentences. Once room to manoeuvre is built into the system it is unrealistic
to expect that people will not use the opportunity.
 -284-

It has been observed that resolution discussions can "help to establish independently
of the police perception of reasonable and probable grounds for arrest, and independently
of a preliminary inquiry whether a trial is warranted at all, and if warranted, whether
warranted on all charges."40 Police officers, acting independently of Crown counsel, can,
in many circumstances, quite properly lay a number of charges, all of which are made out
on the evidence of what is essentially one transaction. However, it may be in no one's
interest, despite the existence of evidence supporting all of these charges, to seek convictions
on all of them. Indeed, convictions on all charges laid for what is essentially one delict may
be impermissible in law.41 Therefore, resolution discussions between Crown and defence
counsel may be essential to determine how best to accommodate both the public interest
and the interests of an accused person in the prosecution42 Further, the criticism that
bargaining and justice are incompatible overlooks the similarities between intense resolution
discussions conducted in good faith and the tactical maneuvering of adversaries in the
courtroom.

Every accused person has the constitutional rights to be presumed innocent, and to
have a fair and public trial. But, like many such rights, they may be waived by an accused
person by pleading guilty. The right of waiver is subject to the power of the court to control
the integrity of its process, and the waiver itself must, of course, be clear and unequivocal,
with full knowledge of the rights a trial will protect, and full knowledge of the effect of such
a waiver: Korponey v.A.G. Canada (1982), 65 C.C.C. (2d) 65 at 73-74 (S.C.C.). It is the duty
of defence counsel to ensure that a client contemplating such waiver is aware of the
consequences. In addition, s. 655 of the Criminal Code provides that an accused person or
his or her counsel may admit any fact, thereby dispensing with the need for proof of that

40 A. Brannigan, J.C. Levy, 'The Legal Framework of Plea Bargaining" (1983), 25 Canadian Journal of
Criminology’ 399, at p. 418.

41 See, for example, Kienapple v. The Queen (1974), 15 C.C.C. (2d) 524 (S.C.C.).

42 H.W. Silverman, "Plea Bargaining" (1976), 24 Chitty's LJ. 78, at p. 79.

 -285-

fact. Accordingly, the right of the accused to waive or dispense with procedural

requirements that would otherwise apply to his or her trial is quite broad.43

A third structural feature of our criminal justice system with important relevance to

resolution discussions is the principle in sentencing that an early plea of guilty, which may

save the community the expense and difficulty of a trial, or which may indicate genuine

remorse on the part of the offender, may mitigate the sentence which would otherwise be

imposed. See, for example, R. v. Johnston and Tremayne [1970], 4 C.C.C. 64 (Ont. C.A.);

R. v. Layte (1983), 38 C.R. (3d) 204 (Ont. Co. Ct.). Fourth, as the Committee has noted

above, and discussed in great detail, comprehensive and early disclosure by the prosecution

is now nothing short of a constitutional precept in our criminal justice system. Likewise, the

Committee has emphasized that disclosure is to be diligently sought and conscientiously

utilized by the defence. Early and full disclosure, and its conscientious use by the defence,

manifestly facilitates informed and responsible resolution discussions.44

The carefully defined but broad right of waiver, the broad discretion that counsel

inherently possess in an adversarial system, the mitigation that an early plea of guilty can

bring, and full disclosure are basic structural principles of the administration of justice in

Ontario that comfortably accommodate resolution discussions as appropriate and, indeed,

inevitable. The mitigation principle ensures that resolution discussions will, in many cases,

be desirable for an accused person, particularly when the strength of the prosecution

evidence makes conviction following trial a virtual certainty. Likewise, from the perspective

of Crown counsel, the certainty of conviction often makes resolution discussions desirable,

for the corresponding advantages of saving expense and, perhaps, trauma for prosecution

witnesses. The discretion accorded counsel ensures that such discussions can be conducted

43 The English Court of Appeal emphasized in Turner, supra, that the accused must have complete freedom
of choice whether to plead guilty or not guilty.

44 The New Zealand Law Commission has stated in its Report No. 14, Criminal Procedure, Part One:
Disclosure and Committal, at p. 2, that with full disclosure, "efficiency would be better served by earlier pleas of
guilty, by the improved definition of issues, and by discussions which might lead to withdrawal of charges."
 -286 -

quite readily when they are desirable. Full disclosure ensures that such discussions will be

informed, comprehensive, and thus responsible and fair. And, the broad right of waiver

ensures that the results of such discussions are entirely acceptable to an accused person, and

can be conveniently acted upon in court.

The Committee does note, however, that the discretionary latitude accorded the

parties in our adversarial system can only be fairly exercised on both sides if an accused has

unqualified access to competent counsel. Such access permits the Crown and the defence

to engage in resolution discussions on an equal professional footing.45 In Ontario, proper

access to counsel is available under the Ontario Legal Aid Plan.

The Charter of Rights, coupled with our present comprehensive system of legal aid

that ensures a full and meaningful right to counsel, is another important aspect of our justice

system that, in the Committee's view, goes a long way toward alleviating any concern about

the propriety of a broad discretion to conduct resolution discussions. Many of the

fundamental rights and freedoms which the Charter accords to all persons govern the

investigative stages of the criminal process. Accordingly, the Charter plays an important role

in both deterring unlawful investigative conduct, and in preventing the state from benefitting

from such unlawful conduct as has occurred. Thus, one important result of our Charter

jurisprudence is that criminal charges, when laid, will tend to be founded upon evidence that

is both compelling, and the product of a thorough, yet fair, investigation. This Charter-

enhanced quality in the prosecution's case in turn tends to facilitate resolution discussions,

because the strength of the case against an accused often renders the prospect of conviction

at trial very high, and the advantages of an early plea correspondingly more attractive.

45 Some objections to the practice of plea bargaining have been premised on the assumption that due to the
absence of comprehensive legal aid systems that ensure every accused person adequate representation, the Crown
may enjoy an unfair advantage that could result in unduly harsh plea agreements. See, for example, the Law
Reform Commission of Canada, Working Paper No. 60, supra, at pp. 4-5 and footnote 15.
 -287-

Further, an accused person represented by competent counsel is, through counsel's

attention to the facts and knowledge of Charter principles, readily able to avoid any plea

arrangement that flows from unconstitutional investigative conduct by simply insisting on his

or her right to seek a remedy in open court. And, conversely, the breadth of Charter rights

and remedies, and the diligence of defence counsel in insisting upon them, play an

important role in assuring the public that those matters which are resolved by discussion in

a criminal proceeding are resolved in accordance with the principles of fundamental justice.

Our continued commitment to an adversarial system of justice rests upon the

conviction that it provides a manner of seeking out truth for the purpose of attributing

criminal responsibility in a way that is both effective and fair. However, without detracting

from the virtues of the adversarial system, it is, in the Committee's view, unquestionable

that the existence of that system does not exclude resolution discussions as a different but

equally appropriate way, in some circumstances, of accomplishing the objectives that our

criminal justice system pursues.46

It is the Committee's view that resolution discussions can, in appropriate cases, be

an important method of accomplishing the aims of the criminal law. Assuming full

disclosure by the Crown, two officers of the Court, who have familiarized themselves with

the evidence uncovered during the investigation, are, in the Committee's view, entirely

capable of reaching a responsible professional assessment of the practical realities of an

accused person's position, both in fact and in law. Those same two officers of the Court

may also be readily able to agree upon a more or less limited range of disposition for such

an accused that will responsibly reflect the prevailing sentencing principles, subject, of

course, to the fact that the trial judge is the final arbiter of the propriety of both the plea

and the sentence to be imposed. In many such cases, the full panoply of procedures

46 See, for example, Easterbrook, supra, who states that, "Plea bargains are preferable to mandatory litigation
... because compromise is better than conflict. Settlements of civil cases make both sides better off; settlements
of criminal cases do so too." See also A.H. Warner and K.E. Renner, 'The Bureaucratic and Adversary Models
of the Criminal Courts: The Criminal Sentencing Process" (1981), 1 Windsor Yearbook of Access to Justice 81.
 -288 -

accompanying a criminal trial, if permitted to run their course, would add nothing to

counsel's initial assessment. It is, therefore, appropriate, in the Committee's view, to

recognize these cases for what they are, and permit their resolution without the expense,

inconvenience, and trauma of a full trial. The expertise and experience of Crown and

defence counsel, each of whom agrees on an outcome that fulfils their respective duties to

the community and the accused,47 are important assets in the administration of justice

which should not be overlooked or minimized.

The Committee wishes to emphasize that the productivity and, indeed, propriety of

resolution discussions between counsel necessarily depend heavily upon full disclosure by

the Crown. Accordingly, the Committee's endorsement of resolution discussions, and the

recommendations thereon, must be placed in the very important context of the

recommendations respecting disclosure. Full disclosure can both trigger resolution

discussions and facilitate agreements that responsibly reflect the realities of the case.48

Resolution discussions are also sound as a matter of policy in that they often permit

the criminal process to be more sensitive to the circumstances of the participants' lives than

would a formal trial. For example, an accused person may acknowledge his or her guilt

shortly after a charge is laid, and express a wish to plead guilty at the earliest possible

opportunity. In these circumstances, a trial would be an unnecessary ordeal for the accused,

and would involve needless expense for the accused, the administration of justice, and thus

the public. It would also adversely affect other cases waiting through the sometimes heavy

demand for court time. Likewise, a victim of crime may be quite content with a guilty plea

47 It has been observed that a convicted person who is satisfied that the court system which convicted him
or her has operated fairly may be more likely to accept responsibility and engage actively in rehabilitation: see
D.J. Newman, Conviction: The Determination of Guilt or Innocence Without Trial (1966), at p. 45, as discussed
in L.R. Genova, "Plea Bargaining: In the End, Who Really Benefits?" (1981), Canadian Criminology Forum, Vol.
4, No. I, 30, at p. 39.

48 See A. Hooper, "Discovery in Criminal Cases" (1972), 50 Can. B. Rev. 445, for a discussion of the
relationship between disclosure and plea negotiations.
 -289-

by an accused that saves him or her the difficulty of testifying in an unfamiliar and public

forum about an event that may have been quite traumatic.

It is, in the Committee's view, an important part of both Crown and defence

counsel's professional responsibilities to explore the situation of accused persons, victims

and witnesses, so that these persons' circumstances may be appropriately brought to bear

in determining how the proceedings should be conducted. For example, a particular witness

whose testimony is necessary for either the Crown or defence may feel that appearing in

court to testify will be quite traumatic. Accordingly, resolution discussions to explore the

possibility of an agreed statement of facts, or a plea that would dispense with the need for

the witness to testify, may be desirable. The Law Reform Commission of Canada has

observed that "relieving such victims from the burden of becoming witnesses in criminal

trials ought not to depend entirely on the spontaneous generosity of the accused."49

Even resolution discussions that resolve no substantive issues may lead to, for

example, agreement as to the scheduling of witnesses to be called at trial. This apparently

small step is of great assistance to witnesses, as it minimizes for them the personal

inconvenience of testifying at trial. In many parts of Northern Ontario, witnesses must

travel great distances to testify, making it particularly important that they be inconvenienced

in this way as little as possible. The responsiveness to the personal needs of victims,

witnesses, and accused persons that these types of resolution discussions may occasion can

help to maintain a high level of public confidence in the administration of justice among

those most directly affected by its processes.

Apart from the inherent desirability and propriety of responsibly conducted resolution

discussions, they can have important practical benefits. The United States Supreme Court

succinctly captured the essence of these practical benefits in Santobello v. New York, 92 S.Ct.

405 (1971) at 498, as follows:

49
Working Paper No. 60, Plea Discussions and Agreements, supra, at p. 10.
 -290-

Disposition of charges after plea discussions is not only an essential part of

the process but a highly desirable part for many reasons. It leads to prompt
and largely final disposition of most criminal cases; it avoids much of the
corrosive impact of enforced idleness during pre-trial confinement for those
who are denied release pending trial; it protects the public from those accused
persons who are prone to continue criminal conduct while on pre-trial release;
and, by shortening the time between charge and disposition, it enhances
whatever may be the rehabilitative prospects of the guilty when they are
ultimately imprisoned.

Resolution discussions can also provide, for all those directly affected, be they

accused, the prosecution, or the victim, a reassuring element of certainty. The disquietude

experienced by all participants in a trial while awaiting a jury verdict demonstrates the value

of the certainty attainable through resolution discussions.

The Committee recognizes the foregoing important practical benefits of resolution

discussions, but the Committee does not, as did the Law Reform Commission of Canada in

1975, see resolution discussions as the triumph of expediency over principle. These practical

benefits flow, in the Committee's view, from a practice that is inherently desirable in the

context of our criminal justice system, for the reasons stated above.

In sum, the Committee is of the view that appropriate resolution discussions are a

proper and necessary part of the administration of criminal justice in Ontario. However,

the Committee is also aware that, if resolution discussions are conducted improperly, they

may have the effect of undermining community confidence in the administration of criminal

justice. Accordingly, the Committee makes the following recommendations which it views

as necessary if justice is both to be done and to be seen to be done through the practice of

resolution discussions. The recommendations cover the actual conduct of resolution

discussions, the practice to be followed in open court at a plea and sentencing following

resolution discussions, and other procedural aspects of resolution discussions. Thus, the

recommendations seek to ensure that every aspect of the administration of justice related
 -291-

to resolution discussions is conducted in a manner consistent with the aims of the criminal

justice system, including the public interest.

B. Recommendations Regarding Resolution Discussions

1. Recommendations Relating to the Conduct of Resolution Discussions

47. The Committee recommends that Crown counsel should not accept a plea of guilty to

a charge where he or she knows that the accused is innocent.50

The Committee sees this recommendation as self evident.51 Departing from this rule,

under any circumstances, contravenes a number of principles that are fundamental to the

criminal justice system and its repute in the eyes of the community, as discussed in the

Committee's Report. First and foremost, accepting a plea of guilty from an innocent person

does not fulfil some of the most basic aims of the criminal justice process: it does not

identify and denounce an offender; and it does not permit an offender to be either punished

or rehabilitated. Further, accepting such a plea contravenes counsel's professional status

as officer of the Court, and violates the duty of uncompromising integrity: it resembles an

attempt to perpetrate a fraud upon the Court. Such a practice would also sacrifice Crown

counsel's duty to act at all times as an impartial minister of justice, supplanting it with an

ethic of achieving a conviction at any cost.

Crown counsel is, as discussed in Chapter II concerning the screening of criminal

charges, obliged to act at all times in the public interest. However, it would under no

50 Where a prosecution is barred to the knowledge of Crown counsel by a statute of limitations or is subject
to an insuperable jurisdictional obstacle (for example, the offence is committed in a foreign jurisdiction with no
legally sufficient connection to the jurisdiction in question), the same principle applies to the exercise of the
Crown's discretion. As discussed in the commentary which follows, this principle also applies where the accused
asserts his innocence.

51 See the similar recommendation made by the Law Reform Commission of Canada in Working Paper No.
60, supra, at p. 48.
 -292-

circumstances be in the public interest to seek a conviction in court where it is known that

an accused is innocent. Indeed, in the Committee's view, there is no greater disservice to

the public interest in the administration of justice than the wilful conviction of an innocent

accused. Recent events in both this country and in England involving wrongful convictions

of innocent persons demonstrate how even a small number of cases where miscarriages of

justice occurred, among the many hundreds of thousands of cases dealt with properly over

the years, can affect the public's confidence in the administration of justice. Even a single

miscarriage of justice is a matter of the utmost gravity.

In the case of a guilty plea, a conviction will not result without at least the ostensibly

voluntary act by the accused person himself or herself of actually entering the plea.

Accordingly, it may be said that an individual ought to be free to enter a plea of guilty,

notwithstanding that he or she is innocent because the right to a trial and to be presumed

innocent is one that can be waived by him or her. An accused person, even an innocent

one, may have a compelling ulterior motive to plead guilty, notwithstanding his or her

innocence. The law in other jurisdictions permits such pleas. See, for example, R. v. Herbert

(1992), 94 Cr. App. R. 230, where the English Court of Appeal held that an accused, despite

maintaining his innocence, could properly enter a plea of guilty knowing that, as a result,

the prosecution of his wife would be discontinued. See also North Carolina v. Alford, supra,

where the United States Supreme Court upheld a plea to second degree murder by the

accused, notwithstanding that he continued to maintain his innocence and stated that he

entered the plea only for fear of the death penalty that state law then permitted to be

imposed upon conviction by a jury for first degree murder. In reaching this conclusion the

Court reasoned as follows at 37:

While most pleas of guilty consist of both a waiver of trial and an express
admission of guilt, the latter element is not a constitutional requisite to the
imposition of criminal penalty. An individual accused of crime may
voluntarily, knowingly, and understanding^ consent to the imposition of a
prison sentence even if he is unwilling or unable to admit his participation in
the acts constituting the crime.
 -293-

However, in an "oft quoted"52 footnote to their reasons, the Supreme Court in Alford

stated that "a criminal defendant does not have an absolute right to have his guilty plea

accepted by the court... the States may bar their courts from accepting guilty pleas from any

defendants who assert their innocence."53 In addition, the United States Principles of

Federal Prosecution54 provide that an "Alford" plea should be accepted only "in the most

unusual circumstances, even if no plea agreement is involved and the plea would cover all

pending charges." Further, United States Attorneys accepting Alford pleas "should make an

offer of proof of all facts known to the government to support the conclusion that the

defendant is in fact guilty."55

Despite the authority from other jurisdictions to the contrary, the Committee is of

the opinion that it is not in the interests of justice in Ontario to permit a guilty plea to stand

where an accused maintains his or her innocence. While the right to be presumed innocent

until proven guilty in a fair and public trial can undoubtedly be waived by an accused

person, the interests of justice in these circumstances extend well beyond the particular

priorities of an accused person alone. It cannot be forgotten that, in the words of the

Supreme Court of Canada in Korponey, supra, at 73:

Paramount to such a right [of waiver] is that of the trial Judge to require
compliance notwithstanding a desire to waive, he being the ultimate judge of
what procedural safeguards need nevertheless be respected in order to protect
the integrity of the judicial process, [emphasis added]

52 W.R. La Fave and J.H. Israel, Criminal Procedure (1984), Vol. 2, s. 20.4, at p. 654, as updated.

53 Footnote 11 at p. 32. See also, United States v. Severino, 800 F. 2d 42 (2nd Cir. 1986).

54 s. 4 and commentary thereon, at p. 30.

55 Much of the commentary to s. 4 of the United States Principles of Federal Prosecution consists of
directions to Linked States Attorneys on how to minimize the negative public perception of the administration
of justice that can arise from a rule that permits an accused to be convicted and sent to jail without a trial
notwithstanding that he or she denies guilt. For another discussion of the limited usefulness of the Alford plea,
see C.J. Shipley, "Tht Alford Plea: A Necessary But Unpredictable Tool for the Criminal Defendant" (1987), 72
Iowa L. Rev. 1063.
 -294-

It would be, in the Committee's view, compromising the integrity of the judicial

process to permit a plea of guilty and sentencing to proceed where an accused person is not

prepared to acknowledge the central precondition of a plea of guilty, namely his or her guilt.

While an accused may have a valid interest in so doing, his or her narrow objectives, while

perhaps very important, are not the sole focus of the administration of justice in this respect.

As stated by the Supreme Court, the trial judge ought not to permit the integrity of the

process over which he or she presides to be compromised. It therefore follows, in the

Committee's view, that counsel, as officers of the Court, cannot ask the trial judge to permit

such compromise.

A plea of guilty must be an admission by the accused of all of the legal ingredients

necessary to constitute the crime charged.56 A guilty plea must be unequivocal.57 Any

facts not admitted on a plea must be proven by the Crown in the usual manner, and to the

usual standard.58 It is clear that a sentencing judge has a duty to ensure that the facts read

in or adduced constitute the offence charged: R. v. Lucas, supra, at 76. Accordingly, a plea

of guilty entered by an accused who maintains his or her innocence cannot lead to a finding

of guilt because the accused is not admitting the facts necessary to support a finding of guilt.

As stated by the Court of Appeal for Ontario in Fegan, supra, at 8:

If we were to accept that an accused could enter some form of conditional

plea, it would be a significant erosion of the integrity of a plea of guilty. A
plea of guilty is intended to signal the termination of the trial as it relates to
conviction. It is considered by the sentencing judge as an expression of
remorse. By expressing finality to the conviction process, it invites leniency
in the sentencing portion of the trial. A conditional plea does none of these
things.

S(l R. v. Lucas (1983), 9 C.C.C. (3d) 71 (Ont. C.A.); leave to appeal to S.C.C. refused, (1983), 9 C.C.C. (3d)
71n.

57 R. v. R.T. (1992), 10 O.R. (3d) 514 at 519 (C.A.).

58 R. v. Gardiner (1982), 68 C.C.C. (2d) 477 (S.C.C.).

 -295-

It is also improper, in the Committee's view, for counsel to facilitate a guilty plea to

proceed where an accused maintains his or her innocence, by withholding from the Court

the fact that an accused person does not acknowledge guilt. Withholding such a crucial fact

prevents the court from apprehending the true state of affairs, namely, that an apparent

acknowledgment of guilt by the accused is illusory. In the Committee's view, there can be

no ulterior motive of an accused person, even a noble one such as saving a loved one from

criminal prosecution, that justifies such a course of action. In this regard, counsel must

adhere to their overriding responsibilities as officers of the Court, and prevent the integrity

of the court processes from being undermined in pursuit of the interests of individual

accused persons.

48. Where Crown counsel knows that the prosecution will never be able to prove a material

element of the case, Crown counsel has a duty to disclose this to the defence.

This recommendation flows in large measure from the duty to make full disclosure,

which is discussed in detail in Chapter III. Disclosing the fact that the prosecution will

never be able to prove a material element of the offence, is, however, a qualitatively

different type of disclosure, and requires discussion here. It is not the disclosure of relevant

evidence or material, as is the focus of discussion in Chapter III. Rather, it is the disclosure

of a fact about how the prosecution can or cannot be conducted, which is, in the

Committee's view, closely related to the conduct of resolution discussions.

It is, in the Committee's view, important to emphasize that the duty to disclose being

recommended applies only to those situations where Crown counsel knows that he or she

will never be able to prove a material element of the offence charged. For example, where

a key witness has died, or has disappeared, leaving no clue as to his or her whereabouts.

The duty does not extend to obliging the Crown to, for example, notify the defence any time

a witness does not appear as required. Such a requirement would inhibit resolution

discussions, rather than facilitate them, as each temporary absence of a witness may prompt
 -296-

an accused to refrain from discussing the case further on the speculative possibility that the

temporary absence may become permanent.

Further, Crown counsel ought not to be required to warrant the presence of each and

every witness. In a busy courtroom setting, Crown counsel has many preparatory duties to

engage him or her. Arranging and ensuring the attendance of witnesses is usually the

responsibility of the police. There is no need to duplicate these efforts by obliging Crown

counsel to assume similar responsibilities, which may be quite onerous. Defence counsel

interested in, for example, temporary absences of witnesses may consult with the relevant

police officers.

It is also important to emphasize that a situation such as the death of a witness who

had relevant evidence to give, which renders the Crown permanently unable to prove a

material element of the case which prior to the death it had a reasonable prospect of

proving, is to be distinguished from a situation where there always has been a complete

absence of evidence concerning an essential element of the case. Where there is no

evidence to prove the charge, and none becomes available through more thorough

investigation, the case should not proceed.

It might be said that there should be no obligation upon Crown counsel to disclose

any inability to prove its case, because competent defence counsel will discover such inability

in any event. While the Committee accepts that inquiries into the ability of the Crown to

prove its case should be standard practice for defence counsel, it does not accept that this

fact relieves Crown counsel of the obligation to disclose that the prosecution will never be

able to prove its case.

If the Crown will never be able to prove its case, yet the matter proceeds to trial, the

accused will inevitably be acquitted when the evidence necessary to establish a material

element of the offence simply fails to emerge. Accordingly, non-disclosure of problems of

proof accomplishes nothing positive in the case that goes to trial. On the other hand, such
 -297-

non-disclosure subjects an accused person to the needless ordeal and expense of fighting the

case to a conclusion that was predetermined from the outset. Further, non-disclosure of a

permanent inability to prove a material element of the case risks leaving a case in the

system for too long, thereby clogging the system unnecessarily. The Committee has already

discussed at length, in Chapter II, the need to screen cases to weed out those with fatal

flaws. Accordingly, for the case that would ultimately go to trial, the affirmative need to

disclose a permanent inability to prove a material element of the case, at the earliest

opportunity after Crown counsel becomes aware of it, is part of the duty to inform the

defence of the outcome of ongoing charge screening.

For the case that does not ultimately end up at trial, but is resolved in discussions

between Crown and defence counsel, the reasons supporting an affirmative duty to disclose

any permanent inability to prove a material element of the case known to Crown counsel

are of a different sort. Whereas a case with such difficulties that proceeds to trial will

clearly founder due to the absence of necessary proof, the same case may be resolved by

plea discussions, and be disposed of in court through the reading in of an admitted

statement of facts, without it ever being known that had the Crown been obliged to prove

one or more essential facts, it could not have done so. The need to disclose the inability

to prove a material element of the case known to Crown counsel in those cases resolved by

discussion is therefore a function of the need to maintain the integrity of resolution

discussions.

It is, in the Committee's view, neither fair, nor likely to be perceived to be fair, that

Crown counsel be permitted to negotiate a plea of guilty without being under any

affirmative obligation to disclose when he or she is aware that the charge or charges an

accused is pleading to cannot, under any circumstances, be proven in court. The accused

has nothing short of a constitutional right to be treated as if he or she were utterly innocent

of a criminal charge unless that charge is proven by the Crown. As discussed above, the

accused can waive this right, by agreeing to plead guilty. However, in the Committee's view,

the integrity of the waiver is seriously undermined where the very important right to a trial
 -298-

is waived in circumstances where Crown counsel knows, and the accused person does not

know, that if he or she insisted on a trial, the result would be an acquittal. A "waiver" of

this type would be more an example of unfair bargaining than a responsible rendering of

the public interest in the administration of criminal justice.

Any rule permitting resolution discussions to be conducted without disclosure by the

Crown of a permanent inability to prove a material element of the case may also hinder the

resolution of cases by agreement. If there were no such duty to disclose, accused persons

might well prefer to await trial just to see if the prosecution is able to prove its case, thereby

clogging the courts with cases that might otherwise be responsibly resolved much earlier by

agreement. Conversely, a duty to disclose the prosecution's permanent inability to prove

a material element of the case permits the accused to assume, if there is no such disclosure,

that the Crown's case is sound, and that it may therefore be best to seek the advantages that

an early plea offers in the circumstances.

As noted above, the Supreme Court has held in Stinchcombe, supra, that the fruits

of a criminal investigation are not the property of the Crown, but are the property of the

public to ensure that justice is done. Crown counsel, as impartial ministers of justice acting

in the public interest, should not be in any different position in so far as disclosure is

concerned during resolution discussions than he or she would be if the matter proceeded

to trial. Therefore, since a permanent inability to prove a material element of the case

would inevitably surface at trial, it must surface during resolution discussions if it is known

to Crown counsel. As will be made clear below, the Committee accepts that the efficacy

of resolution discussions depends to a great extent on their being conducted informally, and

typically in private. However, the informality and privacy of resolution discussions cannot

free the Crown from requirements that would apply if the matter went to a public trial. On

the contrary, the informality and privacy of resolution discussions increases the need to

ensure that the parties do not thereby gain any capacity to act otherwise than with

scrupulous fairness, and in concert with the best interests of the administration of justice.
 -299-

Finally, the Committee notes that the obligation to disclose permanent proof

problems extends only until a resolution agreement is completed. One of the great

advantages of resolution agreements is that Crown counsel is thereby relieved of the

obligation of marshalling the evidence, which in turn may save witnesses the often

considerable inconveniences associated with testifying in court. These benefits can, however,

only be realized if the prosecution is permitted, in reliance on the agreement, to cease

keeping track of evidence that would otherwise be necessary to prove its case.

49. The Committee recommends that Crown counsel can accept a plea of guilty where he

or she is aware that the prosecution will never be able to prove a material element of the offence

provided this state of affairs is fully disclosed to the defence.

The Committee has, in the discussion of the two preceding recommendations,

distinguished between two different situations in which the prosecution cannot prove the

guilt of an accused. The first is where there has never existed any evidence which can prove

a material element of the case, or where such evidence as does exist is clearly and obviously

inadmissible. In such a situation, the prosecution cannot proceed under any circumstances.

Charges should be withdrawn at the earliest opportunity. The second situation is where

evidence existed that offered a reasonable prospect of conviction, but is no longer available

because of, for example, the death or permanent disappearance of the witness who would

have given such evidence. The Committee has emphasized the duty in this second type of

situation to disclose the permanent inability to prove a material element of the case as soon

as practicable after Crown counsel becomes aware of it. However, following such disclosure,

it would be, in the Committee's view, proper for Crown counsel to accept a plea of guilty

in the second type of situation.

It is, in the Committee's view, important to distinguish, for purposes of determining

the propriety of a proffered guilty plea, between truth and proof. Where an accused person

is in fact not guilty, i.e. where no evidence has ever existed that is capable of establishing

guilt, a plea cannot be accepted under any circumstances, and the Committee has so
 -300-

recommended. Where, however, otherwise cogent evidence has been made unavailable by,

for example, the death of a witness, a proffered plea of guilty may be quite properly

accepted because it can be a responsible and accurate representation of the crime that

actually occurred. In the Committee's view, a plea of guilty by an accused voluntarily

prepared to acknowledge, and take responsibility for, a criminal act that he or she actually

committed, is a beneficial and therefore desirable occurrence in the administration of

criminal justice. Such an occurrence ought not to be prevented by the fortuitous fact that

a witness with material evidence to give has died or permanently disappeared.

An accused may voluntarily wish to plead guilty, notwithstanding his or her awareness

that the prosecution can never prove a material element of the case as, for example, a

genuine indication of remorse. In the Committee's view, rare though such occurrences may

be, an accused should not be denied such an opportunity to make amends to the community,

if he or she wishes to do so. Nor should the victim be denied such an opportunity to have

his or her victimization acknowledged, and, perhaps, alleviated to some extent, through

sentencing options such as compensation or restitution. To take another example, an

accused may be prepared to plead guilty knowing that the prosecution cannot prove the

charge in circumstances where a number of charges are outstanding, and the plea, perhaps

in combination with a plea to some other charges, represents a responsible resolution of all

matters an accused is facing: the sentence based on the plea will be within an appropriate

range, the community will be spared the expense of a long trial, and witnesses will be spared

the inconvenience and potential distress of testifying. These are but examples that

demonstrate how a voluntary and fully informed plea of guilty to a charge that the Crown

can never prove may be in the public interest.

50. The Committee recommends that the Attorney General should require all of his or her

agents conducting resolution discussions to ensure that the Crown's position on sentence not be

formulated simply for reasons of expediency, and not otherwise bring the administration of

justice into disrepute.

 -301-

It is, in the Committee's view, axiomatic that any resolution discussions pertaining

to any aspect of a criminal prosecution must lead only to those agreements that are a

responsible representation of the public interest in the due enforcement of criminal law.

That is to say, each case must be resolved on its merits in a manner that is fit and just. For

example, in the Australian Prosecution Policy of the Commonwealth, the Federal Attorney

General has directed that a proposed resolution of a case should not be entertained by the

prosecution unless

(i) the charges to be proceeded with bear a reasonable relationship to the

nature of the criminal conduct of the accused;

(ii) those charges provide an adequate basis for an appropriate sentence in all
the circumstances of the case; and

(iii) there is evidence to support the charges.59

The United States Principles of Federal Prosecution60 have similar requirements of case

resolutions, with the additional requirement that an agreed-upon resolution not "adversely

affect the investigation or prosecution of others." For example, an agreement as to sentence

ought not to be so low that it makes what is otherwise a proper sentence for a co-accused

a violation of the disparity principle.

Crown counsel, in particular, must keep this recommendation firmly in view when

conducting resolution discussions. Any public perception that resolution agreements result

in sentences that are unacceptably low can clearly undermine public confidence in the

resolution discussions generally.61 Further, the need to ensure that the proceedings bear

59 s. 5.14, p. 19.

60 s. 3, p. 25.

61 See Cohen and Doob, "Public Attitudes to Plea Bargaining", supra, at p. 97. The Law Reform Commission
of Canada, in Working Paper No. 60, supra, concluded at p. 23 that "unduly lenient charge reduction, we believe,
can only serve to diminish public respect for our criminal laws and for the administration of justice."
 -302-

a responsible or reasonable relationship to the nature of the criminal conduct in issue

applies to all manner of resolution discussions, not simply those discussions relating to plea

and sentence. For example, in a contested trial, the Crown ought not to agree to call only

those witnesses that will make out a case of manslaughter when the charge is murder and

there exist other witnesses whose anticipated evidence offers a reasonable prospect of

conviction for murder.

A case that proceeds to trial creates a record which is subject to careful scrutiny on

appeal to ensure that the result at trial was appropriate and just. Resolution discussions,

by and large, create a much more limited record. The reasons for a particular conclusion,

agreed upon by counsel in perhaps private and informal conversation, are not available in

transcript form, as are the evidence and submissions which provide the reasons for any

particular outcome at trial. Accordingly, the responsibility of counsel to ensure that the

resolutions arrived at by resolution discussions are just and appropriate is heightened by the

fact that subsequent review of those resolutions may tend to be less comprehensive.

The requirement that outcomes in resolution discussions be thoroughly just and at

all times responsibly reflect the public interest in the administration of justice is a broad

requirement having many aspects. The Committee has focused, in its recommendation,

upon one very important aspect of just resolution discussion outcomes, namely, the

requirement that under no circumstances should Crown counsel agree to a proposed

resolution simply as a matter of expediency. Such a course of action can compromise the

interests of justice in many ways. Resolution discussion outcomes based primarily upon a

desire by the prosecution to be done with a case tend to be too lenient, thereby undermining

the important criminal law objectives of denunciation and deterrence. Such outcomes also

tend to disregard the very important interest of the victim in seeing the person who

victimized him or her dealt with justly. In combination, these two shortcomings of resolution

agreements, based upon expediency alone, can undermine public confidence in the

administration of justice.
 -303-

While it is, in the Committee's view, always improper to take a position in resolution

discussions based solely on expediency, that is not to say that Crown counsel ought not to

consider all of the circumstances of the case, which in some instances may include the need

for limited resources available to the administration of justice to be used wisely. For

example, if a particular prosecution promises to be lengthy, difficult, and potentially

traumatic for the witnesses, and if Crown and defence counsel are not very far apart in their

perceptions of what a fit and just sentence would be in the event of a guilty plea. Crown

counsel can properly consider whether the public interest is best served by conducting the

lengthy trial for nothing more than an opportunity to seek a slightly increased penalty.

The Committee's recommendation on case resolution and expediency clearly places

an obligation on Crown counsel not to agree to a resolution simply to clear the court docket.

However, Crown counsel is not, for the most part, responsible for the extent to which court

dockets are overloaded. Crown counsel may be justified, in exceptional circumstances, in

accepting a lenient plea in order to avoid a stay under s. 11(b) of the Charter, based on

unreasonable delay. However, it is important that appropriate measures be taken to ensure

that Crown counsel are not faced with the unfortunate choice of either agreeing to such an

unsatisfactory resolution simply to clear the court docket, or having a s. 11(b) stay imposed.

Apart from concerns about resolving cases for expediency alone, there are many

other important responsibilities to be kept in mind by Crown counsel during resolution

discussions. In short, determining whether, and how, any given case can be resolved by

resolution discussions in a way that meets the public interest requires a close consideration

of all of the circumstances of the case. The United States Principles of Federal Prosecution

suggest that all the considerations relevant to the desirability of any particular resolution

agreement can include, but are not limited to, the following:

(a) the defendant's willingness to cooperate in the investigation or

prosecution of others;

(b) the defendant's history with respect to criminal activity;

 -304-

(c) the nature and seriousness of the offense or offenses charged;

(d) the defendant's remorse or contrition and his willingness to assume

responsibility for his conduct;

(e) the desirability of prompt and certain disposition of the case;

(f) the likelihood of obtaining a conviction at trial;

(g) the probable effect on witnesses;

(h) the probable sentence or other consequences if the defendant is

convicted;

(i) the public interest in having the case tried rather than disposed of by
way of guilty plea;

(j) the expense of trial and appeal; and

(k) the need to avoid delay in the disposition of other pending cases.62

These enumerated factors demonstrate clearly that there are many circumstances that

may have a bearing upon the decision to either hold a trial, or seek to resolve a case by

discussions. Further, the relevant circumstances, and the weight to be accorded to them,

may vary from case to case. Thus, the point to be drawn from a list of this type, considering

the importance of the items that it contains, is that it is by no means inevitable or even

desirable that a criminal charge will always result in a criminal trial. The decision as to

whether a trial shall be held is, therefore, another important example of the wide discretion

vested in Crown counsel at the early stages of the criminal justice process. It is a discretion

that is, perhaps, often difficult to exercise, but which must always be exercised responsibly.

62 Principles of Federal Prosecution, supra, Part D, s. 2. See also the National District Attorneys' Association,
National Prosecution Standards, s. 68.1, "Factors for Determining Availability and Acceptance of Guilty Plea",
for an extensive list of relevant considerations, and the Australian Prosecution Policy of the Commonwealth, s.
5.15, at pp. 19-20 for a similarly comprehensive list.
 -305-

While the foregoing list is a helpful enumeration of some of the considerations

relevant to the responsible conduct of resolution discussions, those relating to promptness,

expense, and delay, namely, (e), (j), and (k), must be read subject to the Committee's views

on expediency and resolution discussions.

In addition to the factors discussed above that apply in varying ways to each

individual case Crown counsel handles, it is likewise important to ensure that, on the other

hand, resolution discussions are consistent from case to case where appropriate. In essence,

Crown counsel must strive to treat accused persons in similar circumstances similarly. This

means that accused persons in comparable situations must be afforded both comparable

opportunities to engage in resolution discussions, and comparable treatment during those

discussions.63

It should be clear from the foregoing that the factors relevant to the decision to

either hold a trial or resolve a case through resolution discussions, are similar in substance

to the public interest factors relevant to continuing or discontinuing a prosecution, discussed

above in the context of charge screening. Those factors that are not to be taken into

account for purposes of charge screening, for example, the fortunes of the political party in

power, should likewise not play any role in resolution discussions. Thus, the chapter on

charge screening is, in many respects, instructive on the issue of resolution discussions,

remembering, of course, that many decisions in the conduct of resolution discussions are of

a more limited and procedural nature, such as agreements on continuity of exhibits, or the

need to call particular witnesses.

51. The Committee recommends that the Attorney General should require his or her agents

conducting resolution discussions to consider the interests of victims. The Attorney General

should require his or her agents conducting resolution discussions to consult with any victims,

where appropriate and feasible, prior to concluding such discussions.

63 Law Reform Commission of Canada, Working Paper No. 60, at p. 47, Recommendation 8.
 -306-

The word "victims" in the present recommendation and commentary includes, for

example, in homicide and child abuse cases, those close to the deceased or the complainant,

respectively.

For the victim of crime, the criminal trial can fulfil a number of important functions

apart from the mere fact of leading to a conviction. For example, it can be a public process

of denunciation, with appropriate vigour, of the acts of the offender, and thus, a public

recognition of the fact that the victim has been wronged. It can satisfy, although only to a

limit that is fundamentally just, a victim's personal desire to see such public denunciation

visited upon the offender. It can educate the victim as to how the criminal justice system

works. And it can be a cathartic, healing process for the victim. Given these and other

important functions that a trial may serve from the perspective of the victim, resolution

discussions that lead to a trial being dispensed with and an agreed-upon proposed sentence

may leave a victim who is not consulted feeling poorly served by the administration of

justice, even though the offender is ultimately convicted and an appropriate sentence

imposed. The Canadian Sentencing Commission, in their 1988 Report, expressed concern

about "the potential which undisclosed plea bargaining arrangements have to obscure for

victims the visibility and accountability of sentencing dispositions."64

Therefore, in the Committee's opinion, the victim's viewpoint should be, where

appropriate and feasible, solicited by Crown counsel. And although the victim's wishes
1W
cannot control the prosecution, they should be given due consideration in the resolution

discussion process. It is, in the Committee's view, wrong that the criminal process should

work itself through to a conclusion without taking appropriate account of the needs and

circumstances of the person or persons most directly affected by the crime committed.

64 Sentencing Reform: A Canadian Approach - Report of the Canadian Sentencing Commission (1988), at p.
415. The Commission recommended that prosecutorial authorities develop guidelines to ensure that victims are
kept fully informed of plea negotiations and sentencing proceedings, and that their views are represented in these
proceedings. The Law Reform Commission of Canada made similar recommendations. See Working Paper No.
60, supra, Recommendations 11(1) and 11(2), at p. 51.
 -307-

Apart from considering the needs of the victim that the trial itself may serve, there

are, in the Committee's view, other reasons that make consideration of the victim's position

highly desirable, and often necessary, in conducting resolution discussions. Criminal

prosecutions may unfold in unexpected ways. For example, there may be a late offer by an

accused to plead guilty, or a key witness for either the Crown or the defence may become

unavailable. The victim deserves to be kept apprised of any new developments that might

significantly affect his or her expectations of how the prosecution was otherwise to proceed,

and of what might be expected of him or her in the conduct of that prosecution. Proposed

forensic evidence, such as analysis of bodily fluid in sexual assault prosecutions, may also

require consultation with and assistance from the victim. Some issues surrounding proposed

testimony at trial may require input from the victim, for example, testimony proposed by the

defence relating to the prior sexual conduct of the victim: R. v. Seaboyer\ R. v. Gayme\

(1991), 66 C.C.C. (3d) 321 (S.C.C.). And, of course, the victim often has much to contribute

that is highly relevant to sentence, such as a victim impact statement, and, where relevant,

information pertaining to compensation and restitution. The foregoing are examples only,

that serve to demonstrate, in the Committee's view, that consideration of the victim's

circumstances is important to the conduct of a wide variety of resolution discussions. As

such, Crown counsel ought to keep the victim's interests in mind throughout the conduct of

such discussions.

The victim of crime is uniquely placed among members of the public to assess how

effectively the administration of criminal justice responds to the fact of a crime having been

committed. No one, with the possible exception of the offender, is closer to the criminal

act, and thus, generally speaking, more interested in the response of the criminal justice

system to that act. Therefore, satisfying the interests and needs of victims is, along with

treating the accused fairly, one of the criminal justice system's most important objectives.

However, the victim of crime does not, by the mere fact of having been victimized,

necessarily gain any insight into how, criminal law, or the criminal trial process, works.

Victims of crime come from all walks of life and, therefore, while the need to have them
 -308-

understand the workings of the criminal justice system is great, their pre-existing

understanding of the system may be quite limited.

In light of the importance of having victims understand the criminal justice process,

particularly as it relates to resolution discussions, the Committee has emphasized not just

the need to consider the victim's interest, but also the need to consult with the victim, and

keep him or her apprised of developments in the case. For example, in a case of impaired

driving causing bodily harm, where the prosecution intends to accept a plea to impaired

driving alone due to the absence of evidence of causation, it is, in the Committee's view,

important that the victim understand why such a course of action is proposed before it is a

fait accompli. The victim in such circumstances should be permitted to understand the

proceedings relating to his or her victimization, and be given the opportunity to have input,

while such input can still be acted upon if it is appropriate to do so.

Consultations with the victim would, of course, be most important for the most

serious offences, such as those involving violence against the person. In busy jurisdictions

with large numbers of minor offences, it would be too onerous to require that the victim be

consulted in every case, particularly as the investigating officers are invariably able to gain

some insight during the course of the investigation into the circumstances and attitude of

the victim. Thus, the circumstances in which victim consultation is or is not warranted

cannot be spelled out in detail. However, the Committee observes that even some property

offences may warrant careful consultation with the victim. One such example would be a

hate-motivated act of vandalism of a religious site.

The Committee recognizes that the consultation with the victim that it has

recommended during the process of resolution discussions, and where otherwise necessary

during the prosecution, may increase Crown counsel's duties in the early stages of the

criminal process. However, it is the Committee's view that if this is so, additional resources

are necessary to ensure that these consultations occur where warranted. Victim/witness co¬

ordinators, or other victims' support organizations, can provide a tremendously important

 -309 -

service in this regard. Resolution discussions that dispose of criminal cases in ways that do
not meet the victim's legitimate needs and interests, and that the victim does not
understand, do not promote public confidence in the administration of justice.

52. The Committee recommends that the Attorney General emphasize to his or her agents
that a plea of guilty is a circumstance in mitigation of sentence, and when the plea of guilty is
offered at the first reasonable opportunity it is particularly mitigating.

The law is well settled that a plea of guilty by an accused is a mitigating factor to be
considered by the sentencing judge. An important first step in the rehabilitation process is
accepting responsibility for one's conduct. Accordingly, an accused who is prepared to
acknowledge his or her guilt, thus accepting responsibility for the criminal acts in question,
is properly seen as further along in the rehabilitative process. There is, therefore,
correspondingly less need to address rehabilitation in the sentence imposed, which may
result in a shorter sentence than would otherwise have been fit.

A plea of guilty is a mitigating factor in sentencing for another important reason.

Criminal prosecutions may require of the community considerable expense and
inconvenience. The process of testifying at trial may be likewise inconvenient or distressing
for the necessary witnesses. Further, trials inevitably occasion delay between the
commission of the criminal act and the conviction (if any) which may attenuate the
important principle of swiftly and surely denouncing criminal conduct. Such delay may even
attenuate the denunciatory aspect of the sentence itself, particularly if an accused,
benefitting from the presumption of innocence, is integrated into the community while on
judicial interim release for an extended period of time before the trial is completed, during
which time the severity of the particular crime in issue fades from memory. A plea of guilty
can, however, result in a swift and certain societal reaction to a criminal act with a minimum
of expense and inconvenience to the community and the witnesses. When this occurs,
therefore, it is appropriate to recognize the extent to which the plea has enhanced the
 -310-

administration of criminal justice in the sentence imposed: R. v. Johnston and Tremayne,

[1970] 4 C.C.C 64 (Ont. C.A.).

It is important to emphasize, however, that while a plea of guilty may be a mitigating

factor, a plea of not guilty cannot be seen as an aggravating factor when imposing sentence.

An accused cannot be penalized for simply asserting his or her constitutional right to be

presumed innocent until proven guilty according to law before a fair and impartial tribunal:

R. v. Koz_y (1990), 74 O.R. (2d) 545 at 550 (C.A.).

Both of the foregoing reasons behind the principle that a guilty plea can be a

mitigating factor must be seen as operating upon a continuum. A plea of guilty, even if

offered very late in the trial proceedings, may still be a voluntary acceptance of

responsibility, and thus an indication of remorse that mitigates the sentence to some extent.

However, generally speaking, the earlier the plea, the stronger the indication of remorse,

and thus the greater the impact in mitigation, as it is less likely that the plea is simply

acquiescence to the inevitable, following a realization that the Crown's case as it comes out

in court is overwhelming. Even a late guilty plea may save the community and the witnesses

some expense and distress, and may mitigate the sentence for this reason as well. Further,

even a late guilty plea may occasion a speedier societal response to the criminal act than

would otherwise have occurred if the proceeding had included a full trial. Still, it is clear

that the earlier the plea, the greater the positive impact on the administration of criminal

justice, and thus the greater the effect in mitigation. See generally R. v. Garofoli et al.

(1988), 41 C.C.C. (3d) 97, where the Court of Appeal held that pleas of guilty entered even

after the trial had commenced were still mitigating factors.

The fact that even a late plea may entitle an accused to some mitigation of sentence

does not mean, of course, that Crown counsel cannot insist on a higher sentence for a late

plea than might be appropriate for an earlier and otherwise proper plea. If an accused were

entitled to the same lenient sentence no matter when a proper guilty plea was entered, there

would be no reason to enter early and justified pleas. Delay in entering a plea compromises
 -3 li¬

the two principles discussed above that make leniency for an early and proper plea

warranted. Thus, while a late plea is not an aggravating factor, the disentitlement to

leniency that it creates may effect a noticeable increase in the quantum of sentence that is

appropriate in the circumstances, even though the sentence following a late plea may still

be more lenient than the sentence following a full trial and conviction.

The principle of law that a guilty plea, when justified, can be a mitigating factor, and

that an early plea, when justified, can be even more mitigating, plays a clear and important

role in encouraging and facilitating the conduct of resolution discussions. Thus, the principle

plays an important role in achieving the significant benefits to the administration of justice,

discussed above, that accrue from early guilty pleas. It is, therefore, important, in the

Committee's view, that both Crown and defence counsel are aware of this principle, and act

upon it in appropriate cases. The Committee has so recommended. It is likewise important

that the general public be aware of this principle and the reasons underlying it, as set out

briefly above, so that resolution discussions which put the principle into practice are

recognized as both just and responsible.

The Committee has not, however, recommended that this principle of law be

embodied in any sort of directive or policy statement issued by the Attorney General. As

the law officer of the Crown, the Attorney General has both great authority and great

discretion in the administration of criminal justice. In these circumstances, any direction or

policy statement from the Attorney General about the benefits that may accrue to an

accused person following a plea of guilty runs too great a risk, in the opinion of the

Committee, of being interpreted as something in the nature of an inducement to accused

persons to plead guilty.65 Submissions received by the Committee were virtually

unanimous that the Attorney General should not be seen to be offering an inducement to

plead guilty.

65 The Law Reform Commission of Canada, in Working Paper No. 60, supra, recommended at p. 45 that
"A prosecutor ... should not offer any improper inducement to an accused."
 -312-

Applying the Committee's recommendation in everyday practice means that Crown

counsel must be diligent in ensuring that a proposed sentence fully accords an accused

whatever benefit he or she is entitled to through an early plea, either as an indication of

remorse, or as a step that enhances the administration of justice in the particular case. In

some cases, this may mean that an appropriate sentence following an early plea may be

markedly different than an appropriate sentence for the same offence following a full trial.

Crown counsel cannot expect an accused person to waive the constitutional right to a trial,

and then forego any benefit that such a waiver should properly accord him or her.

On the other hand, mitigating sentence in exchange for an early plea cannot go so

far as to undermine the fundamental duty of Crown counsel to ensure that resolution

agreements are at all times a responsible embodiment of the public interest in all of the

circumstances of the particular prosecution. An early plea may be an important factor, but

it remains only one factor in the invariably multifaceted exercise of arriving at a sentence

that is fit and just. Thus, the early plea cannot dominate the sentencing process to the

exclusion of either the facts of the case or other important principles such as, for example,

general deterrence or denunciation.

53. The Committee recommends that, as a general nde, counsel must honour all agreements

reached after resolution discussions. However, on rare occasions, it is appropriate for senior

Crown counsel, after reviewing an agreement made by the Crown, to repudiate that agreement

if the accused can be restored to his or her original position, and if the agreement would bring

the administration of justice into disrepute.

The Committee views the duty of counsel to honour resolution agreements as simply

a particular example of the duties of integrity and responsibility discussed in some detail at

the outset of this Report. As such, honouring resolution agreements lies at the heart of

counsel's professional obligations. Implicit support for the requirement that resolution

agreements be honoured can be found in the decisions of the Ontario Court of Appeal in

R. v. Brown (1972), 8 C.C.C. (2d) 227 and R. v. Agozzino (1970), 1 C.C.C. 380. Agreements
 -313-

reached following resolution agreements are also, in the Committee's view, in the nature

of undertakings. The Law Society of Upper Canada's Rules of Professional Conduct, Rule

10, Commentary 8, states that undertakings given in the course of litigation, "must be strictly

and scrupulously carried out."

In addition to being ethically imperative, honouring resolution agreements is a

practical necessity. Agreements following resolution discussions, be they agreements about

the conduct of the trial, or agreements with respect to plea and submissions on sentence,

dispose of the great bulk of the contentious issues that come before the criminal courts in

Ontario. Thus, the binding effect of such agreements is a matter of the utmost importance.

If agreements arrived at during resolution discussions cannot be relied upon, the effort

expended in achieving them is for nought, and the great benefits to both the accused and

the administration of justice that resolution discussions can produce are rendered

unattainable. For these reasons, the situations in which Crown counsel can properly

repudiate a resolution agreement are, and should be very/ rare.

While resolution agreements must, as a general rule, be scrupulously adhered to, in

rare cases the Crown may not be bound to follow such agreements without any regard to

subsequent developments. For example, in R. v. MacDonald (1990), 54 C.C.C. (3d) 97 (Ont.

C.A.), the accused had reached an agreement with Crown counsel whereby he would be

charged only with having been an accessory after the fact of a murder, which the Crown

repudiated when subsequent events revealed that the accused had been dishonest about his

involvement in the killing. The Court of Appeal held that the Crown was entitled to

abandon the agreement because MacDonald had failed to give truthful testimony as

required, because at the time of the agreement the Crown had no reason to suspect that

MacDonald might be guilty of murder, and because MacDonald had suffered no prejudice,

in that none of the statements he had given in reliance upon the agreement were used

against him at his murder trial. The Court held, at 106, that:
 -314-

The integrity of the Court would ... be tarnished in a case such as this, were
the Crown to be held to a deal which was struck at a time when the appellant
was not a suspect for murder, but where later, facts revealed his involvement.
To permit the agreement to stand would permit the appellant to benefit from
his incomplete and untruthful statements and from the deal he had struck
with the Crown before all the facts were known.

Thus, it is plain that resolution agreements must not undermine the integrity of the

court, or otherwise bring the administration of justice into disrepute. While the sanctity of

agreements entered into is an important principle of the administration of justice, Crown

counsel's primary duty is to the integrity of the system. Accordingly, in the rare cases where

these two values clash, the latter must prevail.

Resolution discussions can frequently be complicated, and delicate. Reasonable

counsel may often reasonably differ on whether a particular agreement is in the public

interest in the circumstances of the case. Therefore, while the Crown may repudiate those

agreements that bring the administration of justice into disrepute, this is not a step to be

taken lightly. The Committee has recommended that the experience and advice of senior

Crown counsel, or perhaps the Regional Director of Crown Attorneys, should be sought

beforehand, so that the Crown can be as sure as possible that repudiation is in the best

interests of the administration of justice. Clearly, however, the preferred policy during

delicate and complicated resolution discussions is for less experienced Crown counsel to

seek the advice of senior colleagues before concluding any agreement, so that the need to

consider repudiation need never arise.

Finally, an agreement may properly be repudiated only where an accused can be

restored to his or her original position, i.e., the position he or she was in before beginning

to act upon the terms of the agreement. It is noteworthy in this respect that the Court of

Appeal in MacDonald emphasized the fact that the accused was not prejudiced by the

statements he gave to the police in reliance upon the agreement that was later abandoned

by the Crown, because those statements were not used against him at his trial. Faced with
 -315-

the choice between honouring an inappropriate resolution agreement, and causing prejudice

to an accused, Crown counsel must opt for the former.66 The unfortunate choice that such

a dilemma poses highlights the importance of ensuring that all resolution agreements

entered into are manifestly in the public interest.

2. Recommendations Concerning Courtroom Practice Following Resolution Discussions

In order to ensure that resolution discussions fulfill their potential to facilitate the

administration of justice in a manner that is in the public interest, it is, of course, necessary

to set some guidelines for the conduct of these discussions, to ensure that the outcomes are

sound, and are arrived at in a fair way. This the Committee has endeavoured to do in the

preceding section of this chapter. However, it is also important to ensure that courtroom

proceedings that follow resolution discussions serve to verify the propriety of those

discussions, and to enhance the public's understanding of both the nature and limits of

resolution discussions.67 The courtroom is an important public forum in which to both

affirm and, where necessary, circumscribe the conduct and effect of resolution discussions.

The Committee therefore makes the following recommendations with respect to courtroom

practice following a resolution agreement with these principles in mind.

54. The Committee recommends that, as a general nde, open to some exceptions, Crown

counsel should state on the record in open court that resolution discussions have been held and

that an agreement has been reached.

66 See R. v. Young (1984), 13 C.C.C. (3d) 1 (Ont. C.A.), wherein the Court of Appeal imposed a stay of
proceedings because the passage of time had obliged the Crown to prosecute the accused for relatively serious
Criminal Code offences rather than for a less serious provincial offence, due to the expiry of the limitation period
under the relevant provincial statute.

67 As one commentator has succinctly observed with respect to resolution discussions, "openness is rather
appealing." See A.W. MacKay, 'The Influence of the Prosecutor: Plea Bargaining, Stays of Proceedings,
Controlling the Process", in S. Oxner (ed.) Criminal Justice (1982), at pp. 73-77.
 -316-

Resolution discussions may often be most effective when they can be conducted

informally, in private, and at the convenience of counsel. The Committee recognizes the

need to preserve this aspect of the conduct of resolution discussions. However, on the other

hand, the importance of a justice system in Ontario that is open to public scrutiny, and

thereby accountable, cannot be understated.68 In seeking to reconcile these two conflicting

factors, the Committee has made the present recommendation.

A general rule requiring resolution discussions and any agreement reached to be

acknowledged in open court enhances the accountability of the administration of justice in

many ways. For example, such open acknowledgement helps to dispel any lingering

misunderstandings in the public mind as to the propriety of resolution discussions.

Professors La Fave and Israel comment that:

At an earlier time, when the legitimacy of plea bargaining was in doubt, the
general practice was not to reveal in court that a bargain had been struck....
Today, by contrast, most jurisdictions have moved away from this "solemn
charade"....69

Acknowledging the fact of resolution discussions and the fact of an agreement also alerts

the public, witnesses, and victims70 that discussions took place, so that they can understand

the extent to which these discussions are a part of the every day activities of responsible

counsel.

68 See Cohen and Doob, "Public Attitudes to Plea Bargaining", supra, at p. 102; The Law Reform
Commission of Canada, Working Paper No. 60, supra. Recommendation 12 and commentary thereon.

69 W.R. La Fave and J.H. Israel, Criminal Procedure (1984), Vol. 2, s. 20.4, at p. 639, as updated. Footnote
omitted from quote.

7(1 In many cases the victim will already be aware of the resolution discussions and the agreement reached,
in accordance with the Committee's recommendations, supra, on the victim's entitlement to be kept apprised
of the case, and to have his or her interests taken into account.
 -317-

Acknowledging in open court the fact that a resolution agreement has been reached

also assists in creating a record of that agreement, which can prevent subsequent attack on

that agreement in the Court of Appeal. Once such an agreement is acknowledged, joint

submissions, or other matters relevant to sentencing that are dealt with on consent, can be

taken to be terms of the agreement. Transcripts documenting such matters thus become

important sources of evidence of the nature of resolution agreements. Counsel may,

however, also wish to take additional steps to preserve a record of the terms of the

agreement. For example, the United States Principles of Federal Prosecution, Part D, s. 5,

provide that a prosecuting attorney should ensure that a copy of the terms of the resolution

agreement, signed or initialled by the defendant or his or her counsel, is included in the case

file.

Openness and accountability are the virtues that require, in the Committee's view,

a general rule that resolution discussions should be acknowledged on the record in

subsequent courtroom proceedings.71 However, there are occasionally circumstances where

the administration of justice requires other interests to be protected. For example, in some

cases, the need to preserve the identity of confidential informants may make any reference

in open court to resolution discussions involving that informant undesirable. It is none the

less important that counsel refrain from mentioning the fact that resolution discussions

occurred and resulted in an agreement only where the need to do so is compelling.

55. The Committee recommends that where a plea of guilty is entered, the trial judge should
question the accused to ensure:

(a) that they appreciate the nature and consequence of a plea of guilty;

71 The requirements in the United States in this respect may in some instances go further than simply
requiring the court to be informed that resolution discussions have been held and an agreement has been
reached. For example it was held in State v. Draper, 162 Ariz. 433, 784 P. 2d 259 (1989), that the prosecutor and
defence counsel have a responsibility to reveal to the sentencing court all of the terms of any resolution
agreement.
 -318-

(b) that the plea is voluntarily made; and

(c) that they understand that an agreement between the Crown prosecutor and
defence counsel does not bind the court.

56. The Committee recommends that the Attorney General seek an amendment to the
Criminal Code requiring a sentencing judge to question the accused as set out above, whether
the accused is represented by counsel or not.

It is, in the Committee's view, central to the integrity of a resolution of a criminal

prosecution agreed upon by the Crown and the defence that it be fully understood and

agreed to by the accused person. No one is more directly affected by the outcome of a

criminal prosecution than the accused, and, therefore, no one has a more compelling interest

in understanding and agreeing to that outcome where it is reached through discussions,

rather than through the conduct of a trial. For this reason, the Committee has

recommended that the trial judge conduct an inquiry in open court and on the record as to

the accused person's comprehension of the proposed plea of guilty.

The need for such an inquiry is plain when an accused is unrepresented, as he or she

may not understand the nature and consequences of a plea of guilty, and has no counsel to

turn to for an explanation. The plea comprehension inquiry is, in the Committee's view,

simply a particular example of the presiding judge's general duty to take steps to ensure that

an unrepresented accused is treated fairly, without going so far as to become an advocate

for the accused. See, for example, R. v. Turlon (1989), 49 C.C.C. (3d) 187 (Ont. C.A.).

However, it is also the Committee's view that such an inquiry is salutary in all cases, even

where the accused is represented, for the reasons discussed below.

The practice of inquiring into the accused's comprehension of a plea of guilty is well

established in many jurisdictions throughout the United States. The Supreme Court has

held in Boykin v. Alabama, 395 U.S. 238 (1969), that it "was error, plain on the face of the

record, for the trial judge to accept petitioner's guilty plea without an affirmative showing
 -319-

that it was intelligent and voluntary."72 Since that decision, the principle it stands for has

been expressed in various ways in the statutes and rules of criminal procedure in various

American jurisdictions. For example, the United States Code Annotated, Title 18, Federal

Rules of Criminal Procedure, Rule 11(c), imposes rather elaborate duties on the trial judge

to make inquiries of the accused person concerning the proffered plea of guilty.73

72 See also Henderson v. Morgan, 96 S. Ct. 2253 (1976).

73 Federal Rules 11(c) and 11(d) provide as follows:

(c) Advice to Defendant. Before accepting a plea of guilty or nolo contendere, the court must address
the defendant personally in open court and inform him of, and determine that he understands, the
following:

(1) the nature of the charge to which the plea is offered, the mandatory minimum penalty
provided by law, if any, and the maximum possible penalty provided by law, including the effect
of any special parole term and, when applicable, that the court may also order the defendant
to make restitution to any victim of the offense; and

(2) if the defendant is not represented by an attorney, that he has the right to be represented
by an attorney at every stage of the proceeding against him and, if necessary, one will be
appointed to represent him; and

(3) that he has the right to plead not guilty or to persist in that plea if it has already been
made, and he has the right to be tried by a jury and at that trial has the right to the assistance
of counsel, the right to confront and cross-examine witnesses against him, and the right not to
be compelled to incriminate himself; and

(4) that if his plea of guilty or nolo contendere is accepted by the court there will not be a
further trial of any kind, so that by pleading guilty or nolo contendere he waives the right to
a trial; and

(5) if the court intends to question the defendant under oath, on the record, and in the
presence of his counsel about the offense to which he has pleaded, that his answers may later
be used against him in a prosecution for perjury or false statement.

(d) Insuring That the Plea is Voluntary. The court shall not accept a plea of guilty or nolo contendere
without first, by addressing the defendant personally in open court, determining that the plea is voluntary
and not the result of force or threats or of promises apart from a plea agreement. The court shall also
inquire as to whether the defendant's willingness to plead guilty or nolo contendere results from prior
discussions between the attorney for the government and the defendant or his attorney.
 -320-

State rules are similar in scope.74

As noted above, the practice in many American jurisdictions is that a plea of guilty

may be accepted even though the accused maintains his or her innocence. If the plea

comprehension inquiry is desirable in the American context, where ascertaining that an

accused denies guilt is not fatal to the plea of guilty proceeding, it follows, in the

Committee's view, that such an inquiry is even more desirable in Ontario, where a plea of

guilty cannot proceed if the accused denies guilt. The greater scope in Ontario for the

courts to decline to accept a plea of guilty heightens the importance of the courts ensuring

through inquiry that a plea of guilty is sufficient in law.

The type of inquiry recommended by the Committee to be conducted by the trial

judge prior to accepting a plea of guilty is not as detailed and protracted as that mandated

by the rules and cases in some American jurisdictions. Indeed, the procedure in this respect

in some American jurisdictions has attracted critical comment in that the requisite

"protracted discussion frequently has the counterproductive and unwelcome result of

affording the accused an extended opportunity to equivocate, express moral - though not

legal - doubts as to culpability, and otherwise to raise spurious matters ...,"75 However, the

more succinct inquiry which the Committee recommends still ensures that the crucial

requisites of comprehension and voluntariness on the part of the accused are present. This

is the primary purpose of the inquiry. Further, such an inquiry accomplishes a number of

other incidental, but none the less important, objectives that flow from ensuring that the

plea of guilty is entered into voluntarily and knowingly. For example, such an inquiry

74 See, for example, McKinney's Consolidated Laws of New York Annotated, Book 11A, Criminal Procedure,
s. 220.10, and note 51, as updated; People of the State of New York v. Davis, 576 N.Y.S. 2d 731 (A.D. 1991);
West's Annotated California Codes Penal Code s. 1016, Vol. 50A, as updated; People v. Vallejo, 2 Cal. Rptr: 2d
413 (1991); People v. McMillion, 3 Cal. Rptr. 2d 821 (1991); J. Decker and J. Kennedy, "Judicial Admonishments
in Illinois Guilty Plea Proceedings", [19881 19 Loyola University Law Journal 855; R. Cunningham, "State v. Irish:
Nebraska's New Procedures for Accepting Guilty Pleas", [1988] 21 Creighton Law Review 667; State v. Pernell,
478 N.W. 2d 297 (Wis. App. 1991); City of Ottawa v. Lester, 822 P. 2d 72 (Kan. App. 1991).

75 United States v. Frederick, 23 M.J. at 564, as quoted in T.L. Elling, "Guilty Plea Inquiries: Do We Care
Too Much?" (1991), 134 Mil. L. Rev. 195.
 -321-

conducted in open court, serves to reassure the public that a plea of guilty which is the

product of resolution discussions is not also the product of undue pressure placed on an

accused person, or the result of a failure to properly take account of the accused person's

wishes. The Canadian Sentencing Commission recently accepted what it called a

"disturbing" study of 129 inmates in Quebec institutions, which revealed some cause for

concern as to whether defence counsel were, in fact, putting the interests of their clients

first.76 As the Commission stated,

These inmates indicated that in their view the outcome of any particular case
was "fixed" in advance of the sentencing hearing. The sentencing decision was
orchestrated by the police and Crown counsel who worked in collaboration
with defence counsel. These inmates were so concerned about the inability
of defence counsel to protect their interests in all or most cases that they
recommended the appointment of an independent third party to represent
their views during plea negotiations.77

The Canadian Sentencing Commission went on to state that such perceptions by

inmates about the sentencing process "only reinforces the need for enhanced visibility of the

discretion exercised by actors in that process."78 Although in the Committee's view, no

such similar situation exists in Ontario, the types of difficulties and concerns identified by

the Canadian Sentencing Commission are among those that can be prevented by an inquiry

by the sentencing court into the voluntariness and comprehension of a proposed plea of

guilty.

The inquiry into the voluntariness and comprehension of a plea of guilty such as the

Committee has recommended will provide evidence of the accused's informed satisfaction

with the state of affairs represented by the plea. As such, it protects both Crown counsel

76 Sentencing Reform: A Canadian Approach - The Report of the Canadian Sentencing Commission (1987),
at p. 409.

77 Ibid.

78
Ibid.
 -322-

and defence counsel from an unfounded subsequent allegation by the accused that either

counsel used undue pressure to bring about a resolution agreement. The plea

comprehension inquiry conducted by the sentencing judge also furnishes important evidence

on the record in the event that an offender seeks to withdraw his or her plea of guilty on

appeal. This can greatly facilitate the process of appellate review, and may well reduce the

number of appeals launched on this basis. Finally, in so far as the inquiry assists the

accused in understanding the implications of the plea of guilty, it may cause more accused

to be more satisfied with the outcome because they understand it, which may in turn reduce

the incidence of appeals against sentence.79

Some judges of the Ontario Court (Provincial Division) informed the Committee that

it is their practice to engage in an inquiry similar to that which the Committee has

recommended, but only where there appears to be some lack of understanding by the

accused before them as to the nature and consequences of a plea of guilty.80 While this

practice is of course laudable, if it were conducted in every case there could be no risk of

a misapprehension that it reflected adversely on defence counsel. Further, the inquiry

conducted in the manner recommended by the Committee would, in most cases, where the

accused is properly advised about the proposed plea of guilty and its consequences, take

very little court time to accomplish. As summed up by one commentator:

The expenditure of a few more minutes to ascertain whether the guilty plea
was an intelligent, voluntary and accurate waiver of trial rights and admission
of guilt would reduce the vulnerability to appellate review of convictions

79 In R. v. Abbott (1992), 71 C.C.C. (3d) 444 at 445, the Newfoundland Court of Appeal stated:

it is probable that, where a judge is aware that plea bargaining has taken
place, he should notify the accused that the court is not bound by whatever
arrangements were made between counsel so that the accused may have an
opportunity to alter his plea.

80 The Court of Appeal for Ontario has also recently commented that, "in practice, some inquiry is usually
made": R. v. R.T. (1992), 10 O.R. (3d) 514 at 525f.
 -323-

based on guilty pleas and would improve the quality of summary justice
immeasurably.81

Thus the Committee has recommended that the plea inquiry be conducted in every case

where a plea of guilty is offered.

The Committee is of the view that this recommendation is in pith and substance a

matter of criminal procedure. Accordingly, the Committee has recommended that it be

implemented by Parliament, through an amendment to the Criminal Code.

57. The Committee recommends that it is improper for the Crown to withhold from the

Court any relevant information in order to facilitate a guilty plea. In cases where not all matters

are admitted, the Crown should advise the Court of the allegations and then proceed upon the

admitted facts. In such cases, the Court will sentence on the admitted facts only.

The Committee has made the foregoing recommendation in the interests of ensuring

that there is placed on the record in open court all information that assists the public,

victims, and witnesses in understanding how the charges initially laid by the police following

a criminal act resulted in the plea and disposition proposed by counsel following resolution

discussions. There is, in the Committee's view, a risk of undermining public confidence in

the administration of justice if an offence which appeared very grave at the time of the

arrest is, when disposed of by an agreed-upon plea, treated as a less serious offence with no

explanation offered for the change in position.82

For example, a crime initially charged as murder may subsequently be disposed of

by a plea of guilty to manslaughter, with a joint submission for a sentence at the low end

81 O.E. Fitzgerald, The Guilty Plea and Summary Justice (1990), at p. 239.

82 See, The Dewar Review: A Report Prepared by the Honourable A.S. Dewar at the Request of the Attorney
General of Manitoba, October, 1988, at pp. 52-3; Sentencing Refonn: A Canadian Approach, supra, at pp. 422-423,
426.
 -324-

of the manslaughter range. In circumstances such as these, the difference between the

perception of the crime at the time of charge and the time of plea is marked; it may not

escape notice by the public, members of the victim's family, witnesses, or other interested

persons and, as such, will inevitably raise questions in the minds of those persons. In the

Committee's view, the questions in the public's mind that such a change in course would

prompt, manifestly call for an explanation on the record. It is the Committee's opinion that

this is best accomplished by Crown counsel reading the initial allegations into the record,

followed by Crown or defence counsel stipulating which of those allegations are admitted

for purposes of sentencing.

In the murder/manslaughter example provided, it may be that, due to intoxication,

Crown counsel has concluded that a necessary element of the intent required for murder

cannot be proven. In these circumstances, the allegation of murder should be read into the

record, following which it is appropriate for Crown counsel to acknowledge that, due to

intoxication, the prosecution is unable to prove all of the essential elements of the offence

of murder. The accused could then properly plead guilty to the lesser and included offence

of manslaughter, with the consent of the Crown, which plea may be accepted by the Court.

See s. 606(4) of the Criminal Code and R. v. Naraindeen (1990), 80 C.R. (3d) 66 (Ont. C.A.).

Similar examples may arise during prosecutions for crimes of violence committed

within a family, where a prosecution is clearly in the public interest, but where complicated

family dynamics, or the victim's psychological fragility make the proof of all of the

allegations against an accused unlikely. In these cases, provided there has been adequate

consultation with the victim, Crown counsel would also read in the allegations in their

entirety, and then indicate to the Court the circumstances that have led him or her to

proceed on less serious facts.

Following such a proceeding, it is clear that the sentencing judge may pass sentence

on the basis of the admitted facts only. The Supreme Court of Canada has held, in Gardiner

v. The Queen (1982), 68 C.C.C. (2d) 477, that sentencing proceedings can be quite informal,
 -325-

with statements read in by counsel forming the evidentiary foundation for the passing of

sentence, provided counsel consent to such a course of proceeding. Absent such consent,

however, the usual rules of evidence and burdens of proof apply. Therefore, if an allegation

is read into the record at a plea and sentencing hearing, but not admitted by the defence,

it is not evidence. It cannot be relied upon in sentencing the offender unless the Crown

then discharges its burden of proof by calling properly admissible evidence.

The Supreme Court has observed, in R. v. Stinchcombe, supra, at 347, that "We

operate on the principle that a judge trained to screen out inadmissible evidence will

disabuse himself or herself of such evidence...." In light of this principle, the Committee is

confident that the recommendation it has made with respect to reading in the entire set of

allegations against an accused in the interest of public accountability will cause no prejudice

to an accused on sentencing, if it is subsequently made clear that sentencing is to proceed

on the basis of a more limited set of admitted facts. In the event that trial judges depart

from the duty to consider only that which is properly evidence on sentencing, there is, in the

Committee's view, an error subject to correction on appeal, pursuant to the Gardiner

principles.

It follows from the Committee's recommendation that it is inappropriate for counsel,

in private discussions, to tailor the facts of an event for purposes of achieving the plea or

sentence that appears to counsel to be desirable. This is treating the Court with less than

the full candour which counsel's professional obligations require, and may even be said to

bear some considerable resemblance to manipulating the Court.

It may be that, in the entire set of circumstances presented by a particular

prosecution, it is both responsible and desirable to accept a plea of guilty to a lesser offence

than what was charged, or even to a lesser offence than the evidence might support. As

discussed at some length above, the public interest in the administration of justice as it

pertains to resolution discussions involves much more than simply proceeding to trial on the

available evidence. If the prosecution is one that can be responsibly resolved short of a full
 -326-

trial on all of the offences charged, this should be acknowledged in open court, and, if

necessary, reasons given on the record for the plea agreement reached. Counsel should not

try to justify a resolution agreement by rewriting the facts of an event that has already

occurred and which neither counsel has observed.

There will be, in the Committee's view, rare exceptions to the above recommendation

where it is not appropriate to read in the entire set of allegations and then advise the court

what is admitted for purposes of sentencing and why. One example is where a victim,

perhaps understandably traumatized at the time of giving an initial statement immediately

after the crime in question, provides an account of the offence that is more serious than

what actually occurred. If such a victim, upon further reflection, provides a more accurate

account that reveals that the crime is less serious than initially indicated, it is appropriate

to provide only the latter information to the court during the course of any sentencing

hearing that follows resolution discussions. This course of proceeding saves the victim from

what may be the public embarrassment of Crown counsel informing the court that the initial

statement made was inaccurate and had to be revised.

Another example of where it would not be in the public interest to read in the

original allegations, and then advise the court as to what more limited allegations are being

admitted as facts for sentencing, is where an accused is receiving lenient treatment on one

offence in exchange for assistance in another investigation which is ongoing. Clearly, the

secrecy and, thus, the integrity of the ongoing investigation would be jeopardized by publicly

identifying the informer.

The foregoing are examples only. They are not exhaustive. And they do not

supplant the need for Crown counsel to exercise sound judgment in ascertaining how the

principle of public accountability following resolution discussions that result in a plea to a

less serious matter is to be reconciled with the need to protect privacy interests of victims,

informants, and others. However, in exercising that discretion, Crown counsel must keep
 -327-

in mind that public accountability through reading in the full allegations is a rule with

limited exceptions.

58. The Committee is of the opinion that a sentencing judge should not depart from a joint

submission unless the proposed sentence would bring the administration of justice into disrepute,

or is otherwise not in the public interest.

As discussed above, the law is clear that a joint submission as to sentence is entitled

to great weight, but does not bind the sentencing judge, who is the ultimate arbiter of what

sentence should be imposed at first instance. See R. v. Rubenstein, supra, (Ont. C.A.). This

rule ensures that sentences will always be meted out by an impartial decision-maker, and

prevents inappropriate inducements to an accused person to plead guilty in exchange for a

promise of a given sentence. However, in light of the recommendations that the Committee

has made on both the practice and procedure respecting resolution discussions, the

Committee thinks it appropriate to comment on what it means to give a joint submission

great weight in the context of resolution discussions conducted in accordance with those

recommendations.

The Committee has, for the reasons discussed above at some length, concluded that

resolution discussions are inherently desirable, and of considerable practical benefit to the

administration of criminal justice in Ontario. Recognizing that the practice of resolution

discussions, even though inherently desirable, is open to some misuse and to some

misunderstanding by the public at large, the Committee has formulated a series of

recommendations aimed at eradicating the problems, both real and perceived, that are

associated with unrestrained resolution discussions. Accordingly, if the recommendations

of the Committee are followed in their entirety, there will be in place in Ontario, in the

Committee's view, a regime whereby the benefits of resolution discussions and the

resolution agreements they lead to can be enjoyed without any residual concern that the

resolutions arrived at are the product of a flawed process. It is in the context of this state

of affairs that the Committee recommends that a sentencing judge should depart from the
 -328-

joint submission offered only where it would bring the administration of justice into

disrepute or would otherwise be contrary to the public interest.

The Committee recognizes that an important, sometimes the most important, factor

in counsel's ability to conclude resolution agreements, thereby deriving the benefits that

such agreements bring, is that of certainty. Accused persons are, in the Committee's

experience, prepared to waive their right to a trial far more readily if the outcome of such

a waiver is certain, than they are for the purely speculative possibility that the outcome will

bear some resemblance to what counsel have agreed to. And likewise, from the perspective

of Crown counsel, agreed upon resolutions that have a stronger, rather than weaker sense

of certainty to them, are more desirable because there is less risk that what Crown counsel

concludes is an appropriate resolution of the case in the public interest will be undercut.

Since certainty of outcomes facilitates resolution discussions and agreements, and

since resolution agreements, as the Committee views them, are beneficial and fair, it follows,

in the Committee's view, that certainty in outcomes of resolution discussions should be

promoted. Naturally, the outcomes of resolution discussions would be perfectly certain if

there were a rule that a judge could not depart from them. As discussed above in the

introduction to this chapter, other jurisdictions approach this state of affairs by permitting

the plea to be struck if the sentencing judge does not accept the joint submission. But this

is not the law in Ontario, nor, in the Committee's view, should it be. It is fundamental to

our system of justice that the court, not the parties, have the last word.

While the presiding judge cannot have his or her sentencing discretion removed by

the fact of there being a joint submission, it is none the less appropriate, in the Committee's

view, for the sentencing judge to have regard to the interest of certainty in resolution

discussions when faced with a joint submission. Accordingly, where there is no reason in

the public interest or in the need to preserve the repute of the administration of justice to

depart from a joint submission, a sentencing judge should, in the Committee's opinion, give
 -329-

effect to the need for certainty in agreed upon resolutions by accepting the joint submission

of counsel.

In R. v. Wood, supra, at 574, the Ontario Court of Appeal noted that serious

consideration should be given to recommendations of Crown counsel "where the facts

outlined, following a guilty plea, are sparse." The Court went on to observe that the

sentencing Court "has to recognize that Crown counsel is more familiar than itself with the

extenuating or aggravating circumstances of the offence which may not be fully disclosed in

the summary of the facts." The Committee wishes to emphasize that it is not making the

present recommendation in order to increase such reliance by the Court upon counsel's bare

recommendation as to sentence. The Committee is of the view that the record created in

sentencing proceedings should not be sparse, but, rather, must always fully support the

submissions made. The Committee so recommends below, where the issue is discussed in

greater detail. In encouraging the sentencing judge to place appropriate emphasis upon a

joint submission, the Committee is thereby placing a corollary obligation upon counsel to

amply justify their position on the facts of the case as presented in open court.

Proceeding in a manner consistent with the present recommendation at a sentencing

hearing where a joint submission is proposed accords, in the Committee's view, appropriate

weight to the "ample"83 discretion possessed by the Crown as to the conduct of any given

prosecution. The Court of Appeal has recognized in R. v. Naraindeen, supra, at 72, that

sentencing courts should not be " gratuitously interfering with a prosecutorial decision." Yet,

proceeding in this manner also continues to ensure that the sentencing judge remains the

ultimate arbiter of the propriety of the sentence, and that the sentence is demonstrated to

be fit in the circumstances. The sentencing judge will not, in the Committee's view, have

committed any error in principle in accepting a joint submission, as recommended above,

provided he or she arrives at the independent conclusion, based upon an adequate record,

that the sentence proposed does not bring the administration of justice into disrepute and

83
R. v. Naraindeen, supra, at 72.
 -330-

is otherwise not contrary to the public interest. Indeed, this recommendation embodies the

essence of the sentencing judge's obligations in passing sentence. In so recommending, the

Committee has endeavoured to define the discretion of the sentencing judge in sufficiently

broad terms to ensure that the sentence imposed is ultimately just, but at the same time has

accorded the parties as much assurance as can be had that their agreed-upon resolutions will

find favour with the Court. In this way, it is hoped that the justice system and the community

as a whole can profit to the greatest extent possible from the benefits of resolution

discussions.

59\ The Committee observes that Crown counsel at trial cannot bind the Attorney General's

discretion to appeal. The Committee recommends that where Crown counsel at trial agrees to

a joint submission which the sentencing judge accepts, the Attorney General should appeal only

where the sentence is so wrong as to bring the administration of justice into disrepute.

The law with respect to the discretion of the Attorney General to appeal from a joint

submission on sentence at first instance is settled by the case of R. v. Dubien (1982), 67

C.C.C. (2d) at 341 (Ont. C.A.).84 In Dubien, the accused had agreed to plead guilty to

rape, and Crown and defence counsel had agreed to make a joint submission for a sentence

of five years. Crown counsel had made it clear that the joint submission could not restrict

the Attorney General's right of appeal, but had also undertaken not to recommend an

appeal to the Crown Law Office, which is the office of the Attorney General's appellate

counsel. Following the plea, the sentencing judge accepted the joint submission. Crown

counsel at trial made no recommendation to the Crown Law Office that an appeal be

launched. However, the case came to the attention of the Attorney General, and an

application for leave to appeal and appeal against sentence was brought before the Court

of Appeal.

84
See also R. v. Simoneau (1978), 2 C.R. (3d) S-17 (Man. C.A.).
 -331-

The Court of Appeal held that the Crown was not estopped from appealing despite

the joint submission made by Crown counsel at trial, and despite the undertaking not to

recommend an appeal. With respect to the latter, that undertaking had been honoured.

With respect to the former, the Court, per MacKinnon, A.C.J.O., held as follows at 347:

It seems to me that the failure of the Attorney-General to raise the question

of the fitness of the sentence under the circumstances of this case would be
more likely to bring the administration of justice into disrepute than
otherwise. There was an error, in my view, in the sentence imposed of such
a nature as to require the Attorney-General, in the discharge of his duty, to
appeal that sentence to ensure that the administration of justice is fairly and
properly carried out.

The Court of Appeal granted leave to appeal, and increased the sentence to nine years.

In the Committee's view, the Court of Appeal in Dubien has held in essence that

while the agents of the Attorney General, namely Crown Attorneys and Assistant Crown

Attorneys, will, for the most part, exercise the day to day discretion necessary for the due

administration of criminal justice in the public interest, those acts are not in law final and

binding upon the Attorney General. Counsel for the Attorney General may, in some

circumstances, quite properly take a different position on appeal. This may differ in some

respect from the law of agency in other contexts, where the acts of the agent may bind the

principal. However, the essential difference lies in the fact that the relationship between

the Attorney General and his or her agents involves more than simply principles of agency.

It involves the pre-eminent social value of administering criminal justice in furtherance of

the public interest, which the Attorney General must accomplish as a matter of duty.

Therefore, when principles of agency and the public interest in administering criminal justice

collide, the latter must prevail.

It is, in the Committee's view, sound that there be permitted some discretion within

the office of the Attorney General, so that when difficult questions arise as to whether a

joint submission made at trial would bring the administration of justice into disrepute, these
 -332-

questions may be studiously considered afresh on their merits by appellate counsel, and,

where appropriate, fully reviewed, without any prior constraints, by the Court of Appeal.

For example, resolution discussions have been criticized by some commentators on the

ground that they result in unwarranted disparity in sentences.85 Appellate review is

essential to ensure thatsentences imposed following resolution discussions are, at all times,

within an appropriate range. Permitting Crown counsel in the appellate courts to take a

position that need not necessarily accord with the position taken by the Crown at trial,

permits the Crown to assist the appellate courts as fully as possible in discharging their duty

to ensure that the trial courts have resolved cases in a manner that is fit and just.

The Committee notes that the rule permitting Crown appeals from joint submissions

is complemented by a similar rule benefitting an accused. Indeed, the Ontario Court of

Appeal has stated in R. v. Wood, supra, at 574, that

Certainly the accused is given greater latitude than the Crown on an appeal
of this kind [following a joint submission] in that he is generally not bound to
the same extent by the submissions of his counsel as to sentence.

The Court went on to observe that, ultimately, the fitness of the sentence imposed, not the

positions of the parties, is the dominant consideration.

While it is therefore clear that neither Crown nor defence counsel on appeal is bound

in law by the position of the Crown at trial, the Committee recognizes that such a rule has

great potential to undermine the finality of resolution agreements. This in turn may reduce

the tendency for resolution agreements to be pursued, thereby diminishing the advantages

which they offer, as discussed above. There is an important need for certainty in resolution

nr
S. Verdun-Jones, A. Hatch, Plea Bargaining and Sentencing Guidelines: Research Reports of the Canadian
Sentencing Commission (1988); Sentencing Refonn: A Canadian Approach, supra, at p. 403. On the other hand,
it has been asserted that "disparity is a necessary characteristic of a human sentencing system and that
individualization of sanctions, not uniformity, is desirable." See, R. Jubinville, "Editorial" (1990), Justice Report,
Vol. 7, No. 3, at p. 5.
 -333-

agreement outcomes that appellate counsel must respect, in the same manner as a

sentencing judge should respect the need for certainty when imposing sentence following a

joint submission. Accordingly, the Committee has recommended that where Crown counsel

at trial has agreed to a joint submission which the sentencing judge has accepted, that

sentence should be appealed by the Crown only where the sentence is so wrong as to bring

the administration of justice into disrepute. Much like the balance struck in the

Committee's recommendation with respect to sentencing on a joint submission at the trial

level, the Committee is of the view that this recommendation strikes the appropriate balance

at the appellate level between ensuring resolution agreement outcomes are final, and

preserving the role of the Attorney General's appellate counsel in ensuring the due

administration of criminal justice. The Committee also observes that it may be undesirable

for an accused person to appeal as a matter of course from a sentence imposed that is in

accordance with a joint submission.

It is important to note that, while the present recommendation is similar in some

respects to the recommendation concerning sentencing on a joint submission at trial, it does

have a significant difference. The Committee has recommended that the sentencing judge

may depart from a joint submission if the sentence proposed would bring the administration

of justice into disrepute or if the sentence is not in the public interest. However, the

Committee has recommended that the Crown should appeal from an accepted joint

submission only if the sentence imposed would bring the administration of justice into

disrepute. Thus, in the Committee's view, the circumstances in which it is appropriate for

the Crown to appeal against a joint submission sentence are more limited than the

circumstances in which it is appropriate for the sentencing judge to depart from a joint

submission. The Crown's right to appeal from a joint submission sentence should not be

exercised simply to seek minor adjustments or refinements to a sentence. Rather, the

 -334 -

Crown should appeal only where the sentence imposed pursuant to a joint submission
represents an error so grave as to bring the administration of justice into disrepute.86

There are few common law jurisdictions that accord the Crown rights of appeal as
broad as those found in the Criminal Code.87 The Committee's recommendation with
respect to launching Crown appeals following a sentence imposed in accordance with a joint
submission is therefore consistent with traditional notions of restraint which should
invariably accompany the exercise of the Crown's right of appeal.88 Such restraint
recognizes the importance of preserving, to the greatest extent possible, the finality of
resolution agreements entered into by the Crown. It also recognizes that both the joint
submission itself and the fact that it was accepted by the sentencing judge as not being
contrary to the public interest, must be accorded due weight by appellate Crown counsel
considering an appeal.

C. Procedural Aspects of Resolution Discussions

In the two preceding sections of this chapter, the Committee has set out how, in its view,
resolution discussions are to be conducted, and how they are to be treated in open court in

86 In R. v. Goodwin (1981), 21 C.R. (3d) 263 at 267, the Nova Scotia Court of Appeal held as follows:

The Crown, like any other litigant, ought not to be heard to repudiate before an
appellate court the position taken by its counsel in the trial court, except for
the gravest possible reasons. Such reasons might be where the sentence was an
illegal one, or where the Crown can demonstrate that its counsel had in some way
been misled, or finally, where it can be shown that the public interest in the
orderly administration of justice is outweighed by the gravity of the crime
and the gross insufficiency of the sentence.

87 Rights of appeal by the state are more limited in, for example, the United States, and England. See
United States v. Wilson, 95 S. Ct. 1013 (1975); United States v. Martin Linen Supply Company et al., 97 S. Ct. 1349
(1977); Benson v. Northern Ireland Road Transport Board, [1942] A.C. 520 (H.L.); Criminal Justice Act 1972, s.
36.

88 In a memorandum, dated 30 June, 1972, to all Crown Attorneys, the Attorney General stated that his
discretion to appeal against sentence "will only be exercised in exceptional circumstances."
 -335 -

the proceedings that follow. With these basic principles concerning the substance of

resolution discussions in mind, the Committee turns now to the various procedural

recommendations that pertain to resolution discussions. The procedural recommendations

pertaining to resolution discussions are, in the Committee's view, no less important than the

substantive recommendations in attaining the benefits to the administration of justice that

resolution discussions can bring about. The procedural recommendations are likewise no

less important than the substantive recommendations in preventing the misuse of resolution

discussions.

60. The Committee is of the opinion that Crown and defence counsel have a professional

obligation to meet prior to trial where appropriate to resolve issues. The Committee is of the

opinion that both Crown and defence counsel have a professional obligation to act responsibly

in arranging meetings and responding to initiatives aimed at resolving criminal cases as early as

possible. This will reduce demand for court time and ensure that court time scheduled is used

efficiently.

61. The Committee recommends that, apart from cases in which the accused is in custody,

or lengthy or complex cases, the Attorney General should require the completion of disclosure

and the conduct of resolution discussions before the setting of a date for a preliminary hearing

or trial.

The foregoing statement of the Committee's opinions flows inevitably, in the

Committee's view, from a detailed understanding of the benefits to the administration of

justice that responsibly conducted resolution agreements can achieve.8’' Resolution

discussions that alleviate the need for lengthy courtroom proceedings can clearly enhance

the administration of justice, and thus serve the community well by facilitating a swift, and

thereby more effective, denunciation of the criminal conduct in issue. However, this

important benefit to the community obviously can be enjoyed only to the extent that

89 See, generally, the United States Principles of Federal Prosecution, supra, at p. 25, s. 2, Commentary (e).
 -336-

resolution discussions are conducted as early as reasonably possible. Resolution discussions

that lead to a plea of guilty can also accord to the accused the benefit of an indication of

remorse. However, again, the force of the submission that a guilty plea indicates remorse

diminishes as the time between the criminal act and the plea increases.

Many victims of crime anxiously look forward to the certainty of a criminal

conviction, for a variety of reasons. For example, they may feel that it publicly recognizes

and legitimizes their suffering; it may be cathartic, part of their healing process, or it may

entitle them to compensation or restitution. For some, a conviction may relieve

considerable stress or trauma with the prospect of testifying in court. The same may be said

for witnesses other than the victim, for whom the prospect of testifying may likewise be

unpleasant. Victims and witnesses seeking these benefits from the criminal process are

obviously going to suffer the least from the lack of them if a resolution of the case comes

as early as reasonably possible. For this class of persons too, then, resolution discussions

are most helpful when they are concluded expeditiously. Further, even if early resolution

discussions are ultimately fruitless, the victim or witness can at least know, as early as

reasonably possible, that the case will proceed to a full trial, and therefore abandon any

false hopes of an agreed upon resolution.

Lastly, the benefits accruing to the justice system itself from resolution discussions

are maximized if such discussions take place early in the proceedings. Criminal practitioners

in most jurisdictions across the province are no doubt well aware of the phenomenon of

"collapsed lists" in the criminal courts. Lists of cases scheduled to be heard in any given

court on any given day collapse when trial or preliminary hearing time is scheduled on the

assumption that cases will be fully litigated, without any thought being given to resolution

discussions beforehand. On the eve of trial, as counsel for both sides commence

preparation, it invariably becomes clear that many cases are readily amenable to resolution

by agreement. Subsequent resolution discussions occur immediately before the scheduled

trial date, resulting in an agreed upon disposition that takes a fraction of the court time

reserved for the case well in advance. However, since the agreed upon resolution occurred
 -337-

so close to the scheduled trial date, it is impossible to arrange for other cases to occupy the

court time made available. Thus, the courtroom may sit idle for much of what had been a

fully scheduled day, while other unfortunate litigants are obliged to endure sometimes

months of purely systemic or institutional delay in having their cases heard.90

Resolution discussions that are conducted prior to setting trial or preliminary hearing

dates help to ensure that trial lists do not collapse, as the limited court time available is set

aside only as necessary to resolve the issues in any prosecution that cannot be resolved by

discussion. In many cases, this may mean perhaps only an hour for a plea and sentencing,

rather than possibly days for a preliminary hearing and a trial. The great benefits to the

court system from such early resolution discussions, which can then make the best possible

use of its facilities and personnel, are obvious. Witnesses, too, are spared the sometimes

significant inconvenience and cost of countless hours of unnecessary attendance at court,

awaiting to testily about issues that are ultimately resolved through discussion. A perhaps

less obvious, but no less important, benefit of early resolution discussions is the avoidance

of unnecessary time spent by counsel, the court, the police, and many witnesses, in preparing

for trials that ultimately do not proceed.

The Committee has been informed, for example, that in some jurisdictions there are

substantial savings to be realized by the police when comprehensive resolution discussions

reduce the necessity of paying criminal investigators, often at overtime rates, to wait their

turn to testify in court. Early resolution discussions, by reducing this type of expenditure

and releasing police witnesses, also have the desirable effect of placing more officers in the

community rather than the courtroom, to the benefit of the community.

X) In the United Kingdom, there has recently been increased concern about the difficulties caused by last
minute guilty pleas, which has led to the minting of a new term, "cracked cases," to describe them. See, for
example, P. Robertshaw, "'Cracked Trials' - What is Happening?", [1992] Crim. L.R. 867; J.K. Bredar, "Moving
Up the Day of Reckoning: Strategies for the 'Cracked Trial' Problem", [1992] Crim. L.R. 153.
 -338 -

It is, therefore, the opinion of the Committee that everyone concerned with the

administration of justice, both directly and indirectly, including the Court, the accused, the

victim, witnesses, counsel, the police, and the community at large, can benefit from

resolution discussions which are conducted as early as reasonably possible. As such,

arranging and engaging in meaningful and early resolution discussions are, in the

Committee's view, essential aspects of both Crown and defence counsel's professional duty

to diligently advance the interests they represent. Arranging and engaging in early and

meaningful resolution discussions are essential aspects of counsel's duties as officers of the

Court.

The Committee's views with respect to counsel's obligations to arrange and engage

in early and meaningful resolution discussions clearly requires counsel to become highly

familiar with the case very early in the proceedings. Counsel must be prepared during

resolution discussions to explore issues deeply, and to arrive at as just a resolution as could

be arrived at in court. For the case that is not resolved in its entirety and thus proceeds to

trial, preparation for that trial will also have to be undertaken, which may involve revisiting,

to some extent, issues already prepared for the resolution discussions. Thus, the Committee

is fully aware that this statement of the Committee's opinion will require concerted effort

by both Crown and defence counsel at the early stages of the criminal process if the

potentially far reaching benefits of early resolution discussions are to be realized.

From the perspective of defence counsel, it is important to place the Committee's

views on early resolution discussions in the context of other recommendations made by the

Committee. For example, the Committee has developed an extensive series of

recommendations pertaining to disclosure. These recommendations flesh out the principle

that disclosure is no longer a privilege bestowed upon an accused by the Crown, but rather

a constitutional right of the accused. Further, the Committee, in accordance with the

Stinchcombe decision, has made it clear that disclosure is to be accomplished early.

Therefore, defence counsel can, in reliance on these recommendations, expect that

disclosure will be both reasonably prompt and comprehensive.

 -339 -

However, with the benefits of early and full disclosure comes the responsibility to

utilize the disclosure provided. Disclosure as a constitutional right is not granted to provide

the accused a tactical weapon with which to avoid trial through the granting of a stay.

Disclosure is designed to accord full answer and defence to an accused person, thereby

facilitating the fair administration of justice. However, in many cases, full disclosure will

make it clear that both the administration of justice and the interests of the accused are best

served by early resolution discussions. Therefore, very soon after disclosure is given, the

materials received must be reviewed by defence counsel, discussed with the accused as

necessary, and such further inquiries as are necessary to fully prepare the case undertaken.

Thereafter, when defence counsel is in a position to meaningfully discuss the case, such

resolution discussions as are warranted should occur promptly.

Defence counsel, having addressed the subject of resolution discussions is, of course,

entitled to consider that his or her client's best interests will be served by putting the Crown

to the strictest proof of all its allegations. This involves a decision relating to the conduct

of the defence that cannot, in the Committee's view, be fettered. However, since it cannot

be known in advance which cases offer the best potential for fruitful resolution discussions,

and which cases should be opposed in every respect, defence counsel should always review

the disclosure carefully and early, with the possibility of resolution in mind. If this practice

is invariably followed, then on those occasions where a decision is made to put the Crown

to the strictest proof of its entire case, there will remain no doubt about such a method of

conducting the defence being in the accused person's best interests in the circumstances.

The practice of early review and resolution of criminal cases by defence counsel

cannot, of course, be hampered by delays in finalizing a retainer due to slow processing of

applications for legal aid. The Committee is confident that the Ontario Legal Aid Plan will

adapt its procedures as necessary to ensure that defence counsel are not inhibited by

retainer issues from taking full advantage of the benefits of early resolution as contemplated

by the Committee.
 -340 -

The obligations placed upon the Crown to screen charges will also assist defence

counsel in discharging their responsibility to prepare for, arrange, and engage in resolution

discussions. Screening will tend to weed out fatally flawed cases from the outset, and will

reduce the number of issues that would otherwise have to be addressed during resolution

discussions. The occurrence of over charging is one example of an issue that should be

properly addressed by Crown counsel screening the charge rather than in resolution

discussions.

Accordingly, while the Committee recognizes that its views concerning early

resolution discussions may affect the day to day practice of criminal law by defence counsel,

these views are none the less put forth in recognition of the benefits to an accused person

that can be realized through early resolution discussions; in recognition of counsel's duties

to his or her client and as an officer of the Court to enhance the administration of

justice;91 and in conjunction with other important recommendations that assist defence

counsel in discharging this obligation.

The Committee's views pertaining to early resolution discussions will also clearly

affect Crown counsel, who will likewise have to undertake earlier preparation, and also

discuss the case, perhaps in great depth, with both the victim and the defence at a very early

stage in the proceedings. The Committee acknowledges that as a result of this expression

of opinion there may well need to be more Crown counsel available at the early stages of

the criminal process than presently are available in some jurisdictions. To take a simple

example, if the ratio of judges to Crown counsel in a given jurisdiction is one to one, and

if the presiding judges sit daily in criminal matters where the presence of Crown counsel is

necessary, it follows that Crown counsel in that jurisdiction will have little or no time, apart

from evenings and weekends, for even the basic preparation necessary for courtroom

proceedings. Thus, Crown counsel will have no time to screen cases, provide full disclosure,

91 Law Society of Upper Canada, Rules of Professional Conduct, Rule 11, which reads as follows: 'The
lawyer should encourage public respect for, and try to improve the administration of justice."
 -341-

and in the process of performing those two functions and consulting with the victim where

warranted, become familiar with the case and thereafter engage in meaningful resolution

discussions with defence counsel.

The specific staffing requirements of particular Crown Attorneys' offices that are

necessary to give effect to the Committee's views on early resolution, are a matter for the

local Crown Attorneys in consultation with Regional Crown Attorneys and the Ministry of

the Attorney General as necessary. However, it is, in the Committee's view, clear that its

opinions on the duty to engage in early resolution discussions will, in general terms, require

the provision of sufficient Crown counsel to permit much important work in the early stages

of the criminal process to be done out of court by Crown counsel.

The Committee recognizes that a mandatory duty to engage in early resolution

discussions need not apply to every case that comes before the criminal courts. As discussed

in Chapters I and II, there are in Ontario a very high volume of cases that are relatively

minor, and whose prosecution or defence is generally straightforward. In these

uncomplicated cases, the advisability of resolution discussions of any type is best left to the

discretion of counsel. Mandatory resolution discussions in these cases, particularly in

jurisdictions with a high volume of such cases, would tend in the Committee's view to

become pro forma, and thus self defeating. In addition, pro forma resolution discussions in

all cases would tend to simply build a level of delay into the trial process, rather than

expediting matters. On the other hand, where resolution discussions are warranted by the

nature of the case, it is important, in the Committee's view, to take positive steps to

encourage and assist counsel in discharging their duty to prepare for and engage

meaningfully in such discussions.

The question of how to determine when, generally speaking, such discussions are

warranted, is one that persons with first hand experience on point have covered in their

submissions to the Committee. Generally speaking, the standard applied in determining

whether resolution discussions ought to be formally encouraged varies somewhat with

 -342-

prevailing conditions in the various jurisdictions across the province. For example, some

areas have initiatives in place to encourage resolution discussions whenever a case is

proposed to take more than an hour or two of court time. In some areas, the standard is

cases that will take a day or more. In the Committee's view, this is a matter to be left to

local committees of the Bench and Bar to be worked out in detail that is responsive to local

conditions, provided only that the standard set encourages the generous use of resolution

discussions.

In the Committee's view, it is also important to recognize that indicators, such as the

anticipated length of a case, are not necessarily the sole criteria by which the advisability

of formally encouraged resolution discussions can be determined. For example, many

shorter cases may raise important issues such as continuity, special circumstances of a victim

or witness, or the desirability of a plea of guilty, that warrant formally encouraged resolution

discussions despite their anticipated brevity. Thus, it is important to retain some flexibility

in the standards to be met before resort to initiatives in place to encourage resolution

discussions can be had. For example, it may be appropriate to provide, in a given

jurisdiction, that resolution discussions will be formally scheduled for any case that is over

one half day in length, or for any other case in which one or more of the principal issues

are, in the opinion of one of the parties, particularly suited to resolution by discussion. With

respect to the latter category of cases, counsel who considers that a particular case is

amenable to resolution discussions, notwithstanding that it does not fall within the general

guidelines for holding such discussions, should promptly take the steps necessary to see that

such discussions occur.

In recommendation 61, above, the Committee recognizes that, even among cases in

which early resolution discussions are warranted, it may not be desirable to insist that such

discussions take place prior to setting a court date. For example, in a case with voluminous

documentation, or complicated expert analysis, disclosure may not be available quickly. In

cases of this type, or where an accused is in pre-trial custody, it may be preferable to seek

an early trial or preliminary hearing date, and provide disclosure and conduct resolution
 -343 -

discussions over the time leading up to that date. When this occurs, however, the obligation

upon the Crown to provide disclosure as quickly as reasonably possible remains. Likewise,

both Crown and defence counsel remain obliged to engage in meaningful resolution

discussions as early as possible, for all the reasons discussed above, and to permit

rescheduling as necessary if the court time originally reserved for the case appears either

excessive or inadequate.

Since it is important to encourage counsel to discharge their duty to engage in early

and meaningful resolution discussions wherever the complexity, length, or other attributes

of the case make such discussions desirable, it is likewise important to direct some attention

to the question of how such discussions should be encouraged where they are appropriate.

The Committee accepts the wisdom of a statement made by a number of Provincial Division

judges that resolution discussions are most effectively facilitated if they are arranged by an

independent third party, namely a court official, rather than one of the parties. This

practice makes suitable preparation for, and attendance, at resolution discussion

appointments a matter of a duty to the Court rather than simply another demand made by

an opposing party in adversarial proceedings. Assigning such a task to court officials also

frees counsel in busy jurisdictions from the imposing scheduling demands involved in

arranging resolution discussions for a large number of cases, so that they can better prepare

for the discussions as scheduled.

Court officials arranging resolution discussions will, however, continue to be

dependent upon counsel for the information necessary to ascertain that resolution

discussions are appropriate in any given case. For example, if the practice in a given

jurisdiction is that resolution discussions are to be held for any case expected to take more

than two hours, it is counsel who must provide the estimated time requirements of the case.

Further, they must do so expeditiously so that, where resolution discussions are warranted,

they can be scheduled to take place as soon as reasonably possible. The Committee will

address the matter of the court arranging resolution discussions in further recommendations

below.
 -344-

Finally, the Committee observes that whenever court lists are congested, and backlogs

are so great as to raise the prospect of unreasonable delay remedies, there is a strong

incentive for an accused person not to engage in early resolution discussions. On the day

of trial, faced with an overbooked courtroom, and no new court dates within a reasonable

time, Crown counsel may be forced, simply to obtain any conviction at all rather than have

a stay imposed, to entertain much more lenient plea proposals than he or she would

entertain at early resolution discussions. In this way, the likelihood of a late yet lenient

plea, which is increased greatly when court schedules are overcrowded, actually hinders

efforts to seek earlier resolutions. Such overcrowding of court schedules must, therefore,

be avoided.

62. The Committee recommends that, absent exceptional circumstances, there should not be

resolution discussions at the trial courtroom door rather than at an earlier stage in the

proceedings.

In the recommendations that precede and follow this one, the Committee has set out

the basic structure of a comprehensive system of pre-trial out-of-court practice aimed at the

early resolution of issues and cases wherever appropriate. The basic structure of that

scheme can be neither perceived nor implemented without having regard to all of the

Committee's recommendations on charge screening, disclosure, and resolution discussions

as interdependent. The pre-trial scheme involves, among other things, a preliminary

weeding out of those cases that should not in the public interest proceed, followed by the

provision of full disclosure, which in turn triggers responsibilities to arrange and engage in

meaningful resolution discussions where appropriate, at the earliest reasonable opportunity,

which will generally be before a date for either a preliminary hearing or trial is set. The

present recommendation against last minute resolution discussions is, therefore, in the

Committee's view, simply the corollary of the scheme contemplated by the Committee's

many other recommendations.

 -345-

Since the Committee's other recommendations are aimed at facilitating, to the

greatest extent possible, early and effective resolution discussions, it is also appropriate, in

the Committee's view, to take an affirmative step to discourage unnecessarily late resolution

discussions. This the Committee has done in its recommendation that resolution discussions

should occur at the last minute only in exceptional circumstances. Such a recommendation

is similar to proposals for reform in other jurisdictions.92 The reasons for such a

recommendation are precisely the reasons canvassed immediately above, that demonstrate

why early resolution discussions are so much more helpful to all parties involved with, or

concerned about, the administration of criminal justice. As stated in the United States

Principles of Federal Prosecution, supra, at p. 25:

A plea offered by a defendant on the eve of trial after the case has been fully
prepared is hardly as advantageous from the standpoint of reducing public
expense as one offered months or weeks earlier. In addition, a last-minute
plea adds to the difficulty of scheduling cases efficiently and may even result
in wasting the prosecutorial and judicial time reserved for the aborted trial.

Further, a lax attitude toward late resolution discussions may indeed undermine some of the

Committee's other recommendations.

It bears emphasizing, in the Committee's view, that the recommendation is not

intended to, nor should it, curtail responsible resolution discussions, provided it is

implemented as part of the entire set of recommendations put forth by the Committee. If

defence counsel diligently requests, and thereafter receives and reviews, full disclosure as

early as reasonably possible, there will be, in accordance with the Committee's other

recommendations, ample early opportunity to discuss the case with Crown counsel who is

likewise well informed about the particular prosecution, and prepared to resolve the issues

it presents. As discussed above, early resolution discussions offer the most potential to

benefit both the accused and the administration of justice, and thus the Committee has been

09
“ Bredar, supra, at pp. 156-159.
 -346-

careful to provide sufficiently for such discussions in addition to taking the step of

discouraging later discussions. The Committee therefore contemplates that this

recommendation will affect only those counsel who fail to sufficiently familiarize themselves

with the case at an early stage in the proceedings.

The Committee does acknowledge, however, the force of the arguments by the

defence Bar representatives, and others, against formally disapproving of late resolution

discussions absent exceptional circumstances. Indeed, this recommendation was passed by

the Committee by a narrow margin. Among the arguments against such a recommendation

are that accused persons cannot be counted upon to be rational about their situation, and

therefore cannot be expected to recognize that in many cases it is in their best interests to

engage in early resolution discussions. Many accused persons, it is argued, irrationally or

unrealistically deny their guilt in the face of a very strong case for the prosecution, and

indicate a willingness to plead guilty only at the very last minute. These persons, it is

argued, are most strongly encouraged to acknowledge the reality of their situation earlier

rather than later, not by prohibiting last minute resolution discussions, but rather by Crown

counsel taking an early and reasonable position on sentencing. Further, disclosure by the

Crown provides the defence with the prosecution's case on paper alone. Only when all of

the witnesses for the prosecution are assembled and the trial is set to begin, can the defence

know the strength of the Crown's case with much greater certainty and thus make fully

informed plea decisions.

The Committee accepts that some accused persons may be irrational or unrealistic

about their situation. However, occurrences of this type are one reason for systemic delay

in the courts, with all of the problems for accused persons, victims, witnesses and the system

that accompany such delay, including collapsed lists, and unnecessarily idle courtrooms.

Therefore, given the tens of thousands of cases very recently stayed in Ontario due to delay,

this is precisely the type of occurrence that should be actively discouraged. Further, the

Committee has already recommended, earlier in this chapter, that Crown counsel remain
 -347-

well aware of, and put into practice, the principle of sentencing law entitling an accused to

the benefit of appropriate leniency in the event of an early plea.

It is also said that the discretion of Crown counsel to conduct the particular

prosecution as he or she sees fit ought not to be fettered by a recommendation about when

resolution discussions may or may not take place. For example, in a trial that is expected

to be lengthy and complex, resolution discussions even on the eve of trial are better than

no such discussions at all because they save the considerable ordeal and expense of the trial

itself, and perhaps an appeal thereafter. While this is no doubt true, it must be kept in

mind that a refusal by the Crown to engage in last minute resolution discussions due to the

absence of exceptional circumstances does not preclude an accused of his or her own motion

from entering a plea of guilty at the outset of trial to the offence charged, or, with the

consent of the prosecutor, and subject to the discretion of the court, to an offence arising

out of the same transaction.93 Further, such a plea may still entitle an accused to some

measure of leniency, albeit less than might have been warranted if the plea had been

entered earlier.94

While late resolution discussions in a case that promises to be lengthy may occasion

some significant advantages to both the accused and the administration of justice in that

particular case, such a practice, to the extent that it sets a precedent permitting late

resolution discussions more generally, may have the net effect of undermining the

advantages to be gained by accused persons as a class, and the administration of justice as

a whole, from early resolution discussions. The vast majority of cases heard in Ontario's

criminal courts are not long (although some are quite lengthy), and thus there is little

possiblity in most cases that late resolution discussions can produce benefits through

resolution that outweigh the drawbacks of their lateness.

93 Criminal Code, s. 606(4).

94
R. v. Garofoli, supra.
 -348 -

The Committee's recommendation permits late resolution discussions to occur in

"exceptional circumstances."95 Clearly, to achieve the benefits intended by the

recommendation, these circumstances should arise only occasionally, and should be truly the

exception rather than the rule. Examples of where such discussions might be appropriate

include a change of counsel, the death or disappearance of a witness, the late surfacing of

evidence that undermines an aspect of either the prosecution's case or the planned defence

as it had previously been discussed, or perhaps the rare situation where either Crown or

defence counsel has in good faith simply misread the case during an initial and early review

of it. In addition, it may be that, for example, the testimony of a witness at the preliminary

inquiry is so unexpectedly strong or weak, that resolution discussions subsequent to such

testimony are warranted. The majority of the Committee is of the view that limiting last

minute resolution discussions to exceptional circumstances of this type will accommodate

sufficiently the inevitable need for some flexibility in pre-trial practices, without sacrificing

the great advantages to all parties that early resolution discussions can bring.

i). Pre-Hearing Conferences

63. The Committee endorses pre-hearing conferences as a very useful and necessary aspect

of the administration of criminal justice in Ontario. Participation by the judiciary in pre-hearing

conferences is, in the Committee's view, both proper and just, and can contribute greatly to the

early and fair resolution of many cases. The Committee encourages the judiciary to convene

and participate in such conferences where appropriate.

The parties to a pre-hearing conference are a judge of the Court before whom an accused

is to be tried. Crown counsel, and either defence counsel, if an accused is represented, or

the accused himself or herself, if unrepresented. The pre-hearing judge is usually not the

95 Similarly, the United States Principles of Federal Prosecution stipulate that last minute resolution
discussions should be held only "occasionally": see p. 25.
 -349-

trial judge. Rule 28.03(1) of the Criminal Proceedings Rules provides that pre-hearing

conferences are

an informal meeting conducted in chambers at which a full and free discussion

of the issues raised may occur without prejudice to the rights of the parties in
any proceedings thereafter taking place.

There are, at present, two types of pre-hearing conferences in Ontario: those

mandated by s. 625.1 of the Criminal Code and the Criminal Proceedings Rules; and more

informal pre-hearing conferences conducted in various ways in many jurisdictions across the

province. The informal type of pre-hearing conference is specifically contemplated in the

Criminal Proceedings Rules. Rule 28.05 provides as follows:

Nothing in these Rules shall be construed or interpreted so as to preclude a

judge of the court from conducting, with the consent of the prosecutor and the
solicitor of record for the accused, such other informal pre-hearing
conferences, in addition to the conference provided for in subsection 625.1(2)
of the Code, upon such terms as the judge deems fit.

In the Committee's opinion both of the foregoing types of pre-hearing conferences

are, in essence, resolution discussions presided over by a judge. Accordingly, the great

benefits to the administration of justice that can accrue from responsibly conducted

resolution discussions can likewise accrue from properly conducted pre-hearing conferences

of either type. For this reason, the Committee considers that such properly conducted

conferences are essential to the proper administration of criminal justice in Ontario.

All of the trial judges consulted by the Committee considered pre-hearing

conferences as essential to the proper functioning of the criminal courts. The presence of

a judge at a pre-hearing conference has, in the Committee's view, great potential to enhance

the likelihood that the resolutions reached, through full, free, and informal discussion, are

just, and fairly embody the diverse interests and objectives of the criminal justice system.
 -350-

The reason for this lies, of course, in the judge's resolute and scrupulously maintained

impartiality.

In conducting responsible resolution discussions, counsel are not free to advocate with

unrelenting partisan vigour, leaving the eventual outcome to a neutral third party, as can be

done in court. But neither are they to abandon the interests they are duty bound to advance

and assume a purely judicial perspective in the case at hand. Responsible resolution

discussions require counsel to be both a partisan advocate and a dispassionate professional,

forcefully advancing a position in informal discussions, but at the same time realizing that,

given the facts and law, the fairest and best outcome may lie elsewhere.

Quite understandably, however, counsel conducting resolution discussions may find

it quite difficult to be at once both partisan and dispassionate, committed and detached.

The zeal of the advocate may well inhibit objective assessment of the actual merits of the

case. Accordingly, a judicial presence in resolution discussions can provide, within important

limits, great assistance in reaching resolutions that are both sound and just. The impartial

guidance which a judge provides can lead counsel to take a more objective and less partisan

view of the case, and thereby bring about a successful and fair resolution that may not

otherwise have been attainable. In addition, the very presence of, and appropriate

participation by, the judiciary in pre-hearing conferences also has, in the Committee's view,

important potential to enhance the public perception of the practice of resolution

discussions.96

The Committee was informed that some judges of the Ontario Court (Provincial

Division) are reluctant to participate in pre-hearing conferences, out of a concern that being

involved in "plea bargaining" is inconsistent with the role of the judge in our adversarial

system. As outlined above, the Committee encourages judicial participation in pre-hearing

conferences, not to advocate a more partisan role for the judge, or to involve the judge in

96
See S.N. Verdun-Jones and F.D. Cousineau, supra, at p. 260.
 -351-

plea bargaining, but, rather, because counsel conducting resolution discussions can benefit

from the impartial guidance that is a central feature of the traditional judicial role. Further,

a pre-hearing conference judge who subsequently imposes sentence may well come to know

much more about a case than a judge who simply presides over brief sentencing proceedings

in which a joint submission is the central feature.97 In the Committee's observation, much

of the success to be enjoyed from conducting pre-hearing conferences flows from the fact

that the judges presiding are impartial, are committed to achieving an even handed and just

result, and are thus moderating influences on Crown and defence counsel. Accordingly, the

Committee has, in the recommendations that follow, afforded such direction as it thinks

necessary to ensure that a judge's presence and participation in a pre-hearing conference

is both effective and consistent with fundamental conceptions of the traditional and proper

judicial role.

In sum, the Committee encourages those responsible for the administration of

criminal justice in each jurisdiction across the province to make extensive use of pre-hearing

conferences, bearing in mind the recommendations which follow.

64. The Committee recognizes that the procedure for conducting pre-hearing conferences

varies throughout the province depending on local circumstances. The Committee supports this

sensitivity to local conditions, and recommends that there be no uniform and province- wide

manner of conducting pre-hearing conferences put in place. The Committee does, however,

endorse some basic principles as necessary for an effective pre-hearing conference.

In the Committee's view, the effectiveness of pre-hearing conferences depends, to a

great extent, on the informality of the proceedings, and upon the capacity of those

97 Cohen and Doob, "Public Attitudes to Plea Bargaining", supra, at p. 102. Professors Cohen and Doob
conclude at p. 103 that

Enhancing the awareness of the judge of the facts of the process or actually having the judge
present at key stages of the process appears to foster greater public confidence and render
the outcome more acceptable than would be the case if the judge is not so involved.
 -352-

responsible for organizing and conducting them, to take account of prevailing local

conditions and practices, and the needs of the counsel regularly participating in them. For

this reason, the Committee does not think it right to recommend any rigid requirements for

the conduct of pre-hearing conferences. The Committee also recognizes that much of the

practical benefit of pre-hearing conferences lies in their informal nature, as distinct from a

strictly adversarial proceeding.

The premise of adversarial proceedings in the courtroom is that each side is

forcefully advancing a position that they have already formulated, with the judge ultimately

resolving the issue in an authoritative and fair way. This type of proceeding is clearly of

great benefit where the parties are entrenched and without significant common ground.

However, it may often be that the parties are not fixed in their position, and, thus, may

possibly have considerable common ground. In these circumstances, the parties would

benefit greatly from a process that permits them to make tentative proposals, and thereafter

explore the merits of these proposals, knowing that they may be readily rejected, replaced,

or modified in the course of seeking out an ultimately just resolution. The pre-hearing

conference permits just this type of helpful exploration of the issues in a criminal

prosecution. Thus, the Committee wishes to avoid altogether any procedural

recommendations that would result in the pre-hearing conference tending toward a mere

dress rehearsal of an adversarial trial.

The Criminal Proceedings Rules take a similar approach to the need to preserve

informality in pre-hearing conferences. As noted above, Rule 28.05 provides that such

conferences are to be conducted "upon such terms as the judge deems fit." This approach,

in addition to being sensitive to the realities of pre-hearing conferences, is consistent with

the Committee's general approach to the issues within its Mandate, that the administration

of criminal justice is best accomplished where the personnel responsible can take full

account of local needs.

 -353-

While the pre-hearing conference must remain informal, it cannot be forgotten that

it also has, in the Committee's view, great potential to serve as an important forum in which

to reach agreement upon the resolution of a great number of criminal prosecutions, or issues

arising out of them. Much is accomplished during the pre-hearing conference that would

otherwise have to be accomplished in the court room. Accordingly, for the reasons

discussed in detail in Chapter I, it is imperative that such conferences be conducted both

fairly and effectively. In reconciling the needs for informality, effectiveness, and fairness,

the Committee has, in the following recommendations, settled upon a number of principles,

rather than rules. The following principles are, in the Committee's view, sufficiently

detailed to ensure that pre-hearing conferences will be effective and fair, but do not go so

far as to fetter the discretion of those who will be organizing and conducting them in a great

variety of local circumstances, and in a great variety of prosecutions.

65. The Committee recommends that a pre-hearing conference should not take place until

disclosure has been either obtained or waived.

66. The Committee recommends that a pre-hearing conference should take place as soon

as possible after all participating counsel have had a reasonable opportunity after disclosure to

familiarize themselves with the particular case.

These two recommendations focus upon the timing of pre-hearing conferences. For

all of the reasons discussed above, resolution discussions need to occur as early as

reasonably possible. Thus, the Committee has recommended that pre-hearing conferences

also take place as soon as possible, because such conferences present an excellent

opportunity to conduct such discussions. However, pre-hearing conferences must also occur

only after counsel has had a reasonable opportunity to prepare, so that the discussions can

be comprehensive, and counsel can be in a position to make final decisions about the

conduct of the case. The Committee has been informed that the practice in some

jurisdictions is to expect defence counsel to be in a position to discuss a case almost

immediately after disclosure has been made. It is, in the Committee's view, unrealistic to
 -354-

expect that busy defence counsel, or Crown counsel, will absorb and respond to disclosure

material instantly, or as quickly as could be done if counsel was only handling one case. On

the other hand, defence counsel cannot turn their minds to the disclosure received simply

at their leisure. The Committee has made it clear that this would be inconsistent with

defence counsel's professional responsibilities.

For Crown counsel, preparing adequately for pre-hearing conferences may involve

not only reviewing the disclosure, but perhaps consulting further with investigating officers.

In many cases, it will also mean consulting with the victim. The Committee's

recommendations earlier in this chapter that Crown counsel take the victim's interests into

account in resolution discussions, and consult with the victim where appropriate and feasible,

are fully applicable to resolution discussions undertaken in the context of the pre-hearing

conference. It is of the utmost importance that such consultations with the victim occur, as

are necessary, prior to pre-hearing conferences, so as to prevent any impression being

created among victims that pre-hearing conferences are an improper "backroom" deal, that

disregards their interests.

For defence counsel, adequate preparation will entail reviewing the disclosure fully,

discussing it with the client, undertaking, as necessary, any additional investigation or

preparation that arises from such review or consultation, and then receiving appropriate

instructions. Like victims, accused persons, too, must be involved in the preparation for the

pre-hearing conference, so as to avoid any perception arising that their interests are not

sufficiently taken into account.

Further, the actual nature of Crown and defence counsel's preparation, as outlined

in general terms above, will vary in both complexity and difficulty from case to case.

Those responsible for ensuring that pre-hearing conferences occur as early as

reasonably possible after disclosure has been made will inevitably have to take the foregoing

practical necessities of proper preparation by counsel into account in making scheduling

 -355-

arrangements. Otherwise, pre-hearing conferences cannot be a forum in which resolution

of the entire spectrum of issues in any given prosecution can be comprehensively canvassed

and definitively settled.

It bears mentioning at this stage that those responsible for scheduling pre-hearing

conferences presided over by a judge must pay some attention to the location of those

conferences. See, for example, R. v. Hollwey (1992), 71 C.C.C. (3d) 314 (Ont. C.A.). In

Hollwey, a conference involving the trial judge, Crown counsel, and counsel for one of the

co-accused took place, for practical reasons, at the premises of the Crown. The Court of

Appeal held, at 319, that such a course of action did not create a reasonable apprehension

of bias, but noted that it was "unfortunate that the meeting took place at the office of the

prosecutor."

67. The Committee recommends that all counsel participating in the pre-hearing conference

must be fully familiar with the case, and must be in a position to make admissions or

agreements on behalf of the Crown or the client, as the case may be.

The Committee sees this recommendation as largely self-explanatory. Fairness

requires that counsel be given appropriate time to prepare for a pre-hearing conference.

Efficiency and, indeed, professional responsibility require that counsel use that time to fully

prepare, so that there can be, in most cases, one pre-hearing conference at which every issue

anticipated in the prosecution at hand can be explored to whatever extent is necessary in

the circumstances. However, apart from a full exploration of the issues, counsel must also

be prepared to make binding agreements, for it is only in this manner that the benefits of

early resolution can be attained. This will, therefore, require that both Crown and defence

counsel, as suggested above, not just become familiar with the case, but also undertake

whatever consultations may be necessary following such a review (for example, consulting

victims, key witnesses for the Crown or defence, or investigating officers) that ought to

precede any final decision about a case. For defence counsel, it will, of course, also mean

obtaining instructions.
 -356-

It is of considerable practical importance that the parties be able to reach final and

binding agreements at a pre-hearing conference. This avoids the delay, effort, and expense

required to reconvene after discussing a proposed resolution with an accused, or a victim;

and it may also prevent agreements made from falling apart before they are formally

concluded. However, during the course of a pre-hearing conference, views of the case may

develop, and proposals may be made and seriously considered that were not contemplated

before the conference. Therefore, defence counsel may be duty bound to put a substantially

new development to his or her client, and to obtain instructions thereon. This may, in turn,

make it necessary to have the accused person present in the building when the conference

takes place, so that there is no delay in seeking the instructions necessary to resolve the

case.

The Committee's present recommendation may require, to reiterate a theme

expressed earlier in this chapter, that some Crown and defence counsel devote more time

to preparing a case at its earlier stages. The Committee sees this as part of counsel's

professional obligation to act responsibly with respect to measures aimed at enhancing the

fairness and efficiency of the administration of justice.

Further, the present recommendation, like others that have preceded it, places a

responsibility on those charged with the administration of justice in the province to ensure

that the offices of Crown Attorneys across the province are staffed and run so as to permit

individual Crown counsel the time necessary to prepare as required. In some jurisdictions,

reliance upon pre-hearing conferences as an important method of resolving criminal

prosecutions may entail their being conducted by senior Crown counsel, who must be

capable of making a large number of resolution agreements in important cases, with

dispatch. The resource implications of this possibility cannot, therefore, be overlooked.

Finally, the present recommendation implicitly contemplates that, generally speaking,

there should be only one pre-hearing conference for each case, at which all the issues that

can be settled without a trial are settled. The pre-hearing conference contributes, in the
 -357-

Committee's view, markedly, to the fair and expeditious resolution of cases. However, the

efficiency-oriented advantages of pre-hearing conferences can be, to a great extent,

undermined if the parties are at liberty to schedule as many conferences as suit their

particular preference in the case at hand. The possibility of scheduling repeated pre-hearing

conferences also risks creating the impression that counsel are actively seeking a presiding

judge who is favourably disposed to accept their views as to how the case should be

resolved. Such appearances must, of course, be carefully avoided.

68. The Committee recognizes that it is always open to the presiding judge, for reasons which

seem sufficient to that judge, to record part or all of a pre-hearing conference.

69. The Committee recommends that any agreement reached, or position taken (such as

decisions on admissibility of evidence, or what Charter issues will be raised), excluding any

position taken on the issue of sentence, should be recorded in writing by the pre-hearing

conference judge.

The first of these two recommendations by the Committee is directed principally at

the issue of recording the general discussion that occurs in a pre-hearing conference. In

making this first recommendation, the Committee is simply acknowledging the power of a

judge to control the proceedings before him or her. However, the first recommendation also

touches upon a very important tension in the conduct of resolution discussions at a pre-

hearing conference. The tension is between openness and accountability on the one hand,

and informality and free ranging discussions on the other.

During its deliberations, the Committee considered a proposed recommendation in

the following terms.

Save in exceptional circumstances, it is the Committee's opinion that pre-

hearing conferences should not be recorded.
 -358-

After much careful discussion and debate, the Committee split evenly (with one abstention)

on the proposal. Consequently, it is not one of the Committee's recommendations. This

is the only occasion in which the Committee was not able to come to a final decision on one

of the issues before it. However, the study and debate of this issue has demonstrated to the

Committee that the competing considerations of accountability and informality in pursuit

of resolution agreements are very evenly balanced. Without attempting to be exhaustive,

some of those competing considerations are as follows.

It can be said in favour of recording pre-trial conferences that creating a record

prevents misunderstandings as to what was discussed and agreed upon. Such

misunderstandings may tend to be more frequent in jurisdictions with a large Bench and

Bar, where familiarity among counsel and judges is less likely to develop. Therefore, the

need to record pre-hearing conferences may be greater in those jurisdictions. Creating a

recording facilitates subsequent review of the pre-hearing conference. The possibility of

such review will serve to prevent any participant in a pre-hearing conference from acting

unfairly or improperly.

Creating a record of pre-hearing conference is also seen as desirable in light of the

principle that the public perception of the administration of justice is enhanced by

procedures that are open to some form of public scrutiny. While the public typically will

not be able to attend pre-hearing conferences as they can attend a trial, such openness is

none the less achieved by creating a record which the public may examine. Historically,

"plea bargaining" has been subject to some criticism, in large part due to its secrecy, which

may lead accused persons and victims to think that their interests are being disregarded.

In response to those who argue that frank discussions will be inhibited by recording

pre-hearing conferences, it is said by those favouring such recordings that, absent exceptional

circumstances, nothing ought to be said in a pre-hearing conference that is not fit for public

consumption. The analogy is drawn to the criminal courtroom itself, where the presence of
 -359 -

a court reporter, and indeed free access by the public, does not inhibit counsel from
vigorously advancing their respective positions.

The arguments against recording pre-hearing conferences include the point that such
recordings would have a "chilling" effect on resolution discussions. Much of what is said in
pre-hearing conferences simply need not be a matter of public record. Counsel may be less
willing to explore, or heatedly debate, tentative ideas that may, or may not, develop into
sound resolution proposals and agreements; instead, the preference may be to take safe, but
perhaps unduly intransigent, positions.

It may also be that it is impractical, particularly in busy jurisdictions, to record all

pre-hearing conferences. At present they are rarely, if ever, recorded and the practice of
not recording them is enjoying some considerable success. Further, the Committee has
made other recommendations aimed directly at preventing misuse of unrecorded pre-hearing
conferences. The Committee has also made recommendations to ensure that the record
created in courtroom proceedings following a resolution agreement reached in such a
conference is sufficient in every way. And, ultimately, counsel need not succumb to any
attempts to misuse an unrecorded pre-hearing conference, as a full trial in open court is
always available. Finally, it may be argued that recordings are an important first step
toward making pre-hearing conferences unduly formal. This would undermine one of their
most attractive differences from the formality of a trial setting as a method of responsibly
and efficiently resolving criminal cases.

It was the view of some members of the Committee, including the representatives of
the defence Bar, that to allow a judge, for reasons which seem sufficient to him or her, to
record part or all of a pre-hearing conference, imposes a formality which is not normally
required, and could inhibit open and frank discussions. These members of the Committee
were also of the view that recording part or all of a pre-hearing conference would detract
from the accepted view that counsel are not bound at trial by the positions taken at such
 -360-

a conference. It was the opinion of these Committee members that all parties should agree

before there is any mechanical recording of the pre-hearing conference.

Having made no recommendation on the general desirability of recording pre-hearing

conferences, the Committee sees the foregoing arguments for and against the practice as

relevant to the exercise of the discretion of the individual pre-hearing conference judge to

record or not record the conference.

While the Committee recognizes that recording the general discussion at a pre-

hearing conference is a matter of discretion about which there are evenly balanced

arguments for and against, there can, in the Committee's view, be no reasonable objection

to the requirement in the second recommendation above that agreements reached or

positions taken must be recorded in writing by the presiding judge. Such a recording

accomplishes two very important purposes.

First, recording the terms of any agreements reached or positions taken ensures that

there is no misunderstanding about the agreement among the parties at the time it is made.

If, for example, an agreement is reached after much discussion and debate, where there has

been considerable give and take, and after numerous alternatives have been canvassed, it

may be very important to ensure the parties are ad idem by writing out the terms of the

agreement in every respect, and reading them back, as a summary of what has been

accomplished. In this way, all parties can leave the conference under no doubt about what

has and has not been resolved, and conduct their subsequent affairs with respect to that

prosecution accordingly.

Second, recording the terms of any agreement reached in a pre-hearing conference,

or recording any final position taken by any party, facilitates a smoother and more

expeditious trial by ensuring that agreements are not subsequently repudiated, either

intentionally or unintentionally, once the courtroom proceedings have begun. For example,

on the strength of a position taken by defence counsel at a pre-hearing conference that the
 -361-

admissibility of a statement will not be challenged on either voluntariness or Charter

grounds, Crown counsel could quite properly refrain from having on hand at the trial the

police officers who had no evidence to give relevant to the crime committed, but who simply

dealt with the accused at some point subsequent to arrest and around the time that the

statement was given. Likewise, for example, on the strength of a position taken by Crown

counsel at a pre-hearing conference that material found in the course of a search would not

be tendered, defence counsel may refrain from having at trial civilian witnesses to the search

who could testify as to the manner in which it was conducted by the authorities. Any

subsequent attempt, either by oversight or design, to conduct the trial inconsistently with the

earlier positions taken may significantly disrupt the schedule of the proceedings as the

necessary witnesses are located, or may greatly disadvantage one party if those witnesses are

unavailable. Thus, a record of agreements and positions taken is necessary to prevent such

disruption or unfairness.

The Committee's recommendation that positions taken or agreements reached in a

pre-hearing conference be recorded does not apply to agreements concerning sentence. This

is done to preserve the right of the parties to conduct sentencing discussions in a pre-hearing

conference without any prejudice to their sentencing submissions in the event that plea and

sentence agreements are not reached and there is a subsequent trial and conviction. While

positions taken or agreements made in the pre-hearing conference about the conduct of the

trial ought to be available to place before a trial judge, as discussed above, to ensure that

the trial proceeds smoothly and fairly, the same cannot be said of positions taken with

respect to sentence. If sentencing discussions at a pre-hearing conference do not result in

resolution, and a plea of not guilty is entered and a trial is held, both counsel must be free

to argue for whatever sentence they think is supported by the evidence as it came out prior

to conviction and at the sentencing hearing. Such evidence and counsel's submissions

thereon are the sole determinants of a proper sentence. Absent a resolution agreement, the

extent to which a convicted person will be deprived of his or her liberty cannot turn upon

positions taken by counsel prior to the hearing of a word of evidence.

 -362-

70. The Committee recommends that a pre-hearing conference may cover the entire range

of issues in a case, including plea and sentence.

This recommendation echoes the Committee's perception of resolution discussions,

discussed in the introductory pages of this chapter, as limited in their breadth only by the

issues which a case raises. In the Committee's view, it is in the best interests of the

administration of criminal justice to conduct resolution discussions at pre-hearing

conferences on the broadest possible terms. The considerable advantages to the parties, and

the administration of justice as a whole, of judicial participation in pre-hearing conference

resolution discussions are discussed above. These advantages ought not, in the Committee's

view, to be arbitrarily limited to any particular subset of the outstanding issues in a criminal

prosecution.

Pre-hearing conferences may be particularly suitable to the informal resolution of

disagreements with respect to disclosure. The Supreme Court has, as discussed above, held

that the trial judge is the ultimate arbiter of any disagreements between the prosecution and

the defence with respect to disclosure. However, resolving disclosure issues informally

before a pre-hearing conference judge can reduce delays to prepare and avoid the inefficient

use of court time that may follow upon court-ordered disclosure at trial.

With respect to final resolution of the case, the Committee's approach to judicial

involvement in pre-hearing conferences is consistent with Rule 28.03(2)(d) of the Ontario

Court (General Division) Criminal Proceedings Rules, which provides as follows:

(2) Without restricting the generality of Rule 28.01 or subrule (1), a pre-
hearing conference judge may inquire as to

* * *

(d) the possibility of resolution of any or all of the issues in the proceedings,
including the possible disposition of any or all counts contained in the
indictment whether by plea of guilty or otherwise.
 -363 -

The Committee has made additional recommendations below that seek to ensure that

a judge's presence at a pre-hearing conference where plea and sentencing are discussed does

not improperly involve him or her in plea bargaining.

71. The Committee recommends that the pre-hearing conference must be scheduled so as

to allow sufficient time to fully discuss the case.

It is, in the Committee's view, axiomatic that a pre-hearing conference cannot be

effective if, due to the shortage of time, the breadth of the issues that arise in a given case

cannot be explored in all of their complexity. Issues must be explored calmly, and with

deliberation, at a pre-hearing conference, which cannot be done under severe time

constraints. The Committee views the time to be allotted to pre-hearing conferences as

approaching in importance the court time to be allotted to trials. It is, of course,

unthinkable that a trial of any type would be forced into a given time period, with no

possibility of according to it the time that it reasonably or actually requires. The same

standard must be applied to pre-hearing conferences, as they present the possibility of

resolving many complex issues in much less time, and with much less ordeal and expense,

than resolution of the same issues in the courtroom would require. Indeed, it is, in the

Committee's view, false economy to send more cases to the courtroom for resolution

because pre-hearing conferences are accorded insufficient time in the calendars of court

administrators, judges, and Crown and defence counsel. As noted above, however, counsel

must attend fully prepared, so that the discussions can be as fruitful as possible, and quickly

directed to the central issues in the case that are potentially amenable to resolution.

According the pre-hearing conference the full allotment of time it requires to canvass

the issues in the case at hand may mean, particularly in those jurisdictions with a large

volume of cases, introducing a scheduling system for these conferences that more closely

approximates that employed in courtrooms. Counsel ought to be expected to provide a

responsible estimate of the time needed for a conference in any given case. The calendars

of pre-hearing conference venues should be filled on that basis, and counsel should be
 -364-

expected to organize their thoughts so as to be able to adhere to the estimates provided.

On the other hand, resolution discussions may often involve much more than simply setting

out one's position as occurs in argument in open court. They often involve the give and

take of discussion, and exploration of any number of new or alternative approaches to the

case. Or, alternatively, it may be that very little need be said to reach an agreement.

Therefore, it should be recognized that cases may take either more or less time than

estimated.

To ensure that judicial time is not wasted when the day's cases take less time than

estimated, there should be a method of procuring, on very short notice, additional cases in

which counsel are ready for a pre-hearing conference. This may be accomplished in any

number of ways, for example, by scheduling more cases per day than can be dealt with

judging by the estimated time required for each, or by use of a "ready list," whereby counsel

could be advised in advance that their presence could be required on a particular day on

very short notice. Likewise, there should be procedures in place to reschedule cases not

reached on their allotted days. Again, the co-operation of counsel in implementing

administrative practices necessary to ensure the efficient use of pre-hearing conference time

is part of the professional responsibility to respond to efforts aimed at enhancing the

administration of criminal justice.

72. The Committee recommends that all parties participating in a pre-hearing conference

must be afforded a fair opportunity to state their positions and participate in the discussions.

Both fairness and the need to encourage the resolution of issues require a

recommendation that all counsel be afforded sufficient opportunity to state their positions

and participate in discussions. This recommendation is aimed at preventing any inadvertent

or advertent tendency for anyone present at the conference to unduly dominate the

discussion. The recommendation is premised on the assumption that mutually agreeable

resolutions, which are the only resolutions that can flow from a pre-hearing conference, are
 -365-

not going to be reached if one of the necessary parties to such an agreement has not had

an appropriate opportunity to put his or her position forward for consideration.

The recommendation is also premised on the need to ensure the accused, victims,

witnesses, and the public at large that pre-hearing conference resolution agreements are the

product of balanced discussion, without undue influence being brought to bear by anyone,

on anyone. For example, notwithstanding that an accused person has retained counsel of

unquestionable ability, he or she may be less inclined to accept a resolution proposal

emerging from a pre-hearing conference absent some assurance that, in his or her absence,

defence counsel was afforded the opportunity to make all representations thought necessary.

Likewise, a victim's level of satisfaction with a proposed resolution agreement may well be

affected by the extent to which he or she views the pre-hearing conference system as clearly

committed to permitting Crown counsel to advance the Crown's perspective on the case.

73. The Committee is of the opinion that a judge presiding at a pre-hearing conference

should not be involved in plea bargaining in the sense of bartering to determine the sentence,

or pressuring any counsel to change their position. The presiding judge may, however, assist in

resolving the issue of sentence by expressing an opinion as to whether a proposed sentence is too

high, too low, or within an appropriate range.

The Court of Appeal for Ontario has held in R. v. Dubien, supra, at 346-7, that

it is not advisable for a judge to take any active part in discussions as to

sentence before a plea is taken, nor to encourage indirectly a plea of guilty
by indicating what his sentence will be.

The English Court of Appeal has expressed this point in R. v. Atkinson (1978) 67 Cr. App.

R. 200, as follows, at 202:

 -366-

[I]n this sensitive area, the appearance of justice is part of the substance of
justice and it will not do if a prisoner or the general public derive the
impression that it is possible, either openly in a pre-trial review ... or by
private discussion between counsel and judge, to achieve a bargain with the
Court.

Thus, it is clear that, as stated in the Committee's recommendation, it is inappropriate for

the judge presiding at a pre-hearing conference to engage in bartering with respect to plea

or sentence. Such bartering is, of course, entirely inconsistent with the judicial role, whose

hallmarks are fairness and impartiality.'^ Indeed, bartering, in the pejorative sense, even

by counsel, is inimical to just and fair resolution discussions.

The Committee does, however, hold the view that an impartial presence in a pre-

hearing conference need be neither a silent nor an unhelpful presence. As indicated above,

the guidance to be offered by a presiding judge at such a conference, provided it is at all

times characterized by impartiality, is of great assistance in helping the parties to resolution

discussions to canvass and, where appropriate, reconcile their differences. Thus, the

Committee sees the indispensable need for impartiality by the presiding judge as entirely

consistent with the expression by him or her of opinions on issues such as sentence. The

judge can discharge fully his or her fundamental duty to act impartially, and still make an

98 Atkinson, supra, is part of a well established line of English authority which makes clear that a judge
cannot be involved in plea bargaining, cannot pressure an accused to plead guilty during resolution discussions,
and cannot induce an expectation on the part of the accused by indicating what sentence will be passed for the
offence in issue. See R. v. Turner, supra; R. v. Bird (1978), 67 Cr. App. R. 203 (C.A.); Gutteridge v. D.P.P. (1987),
9 Cr. App. R. (S.) 279 (Div. Ct.); R. v. Keily, [1990] Crim. L.R. 204 (C.A.); R. v. James, [1990] Crim. L.R. 815
(C.A.); R. v. Llewellyn (1978), 67 Cr. App. R. 149 (C.A.); R. v. Ryan (1978), 67 Cr. App. R. 177 (C.A.); R. v. Inns
(1974), 60 Cr. App. R. 231 (C.A.); R. v. Moss et al. (1984), Cr. App. R. (S.) 209 (Div. Ct.); R. v. Gnmshaw
(1980), 2 Cr. App. R. (S.) 226 (C.A.); R. v. Grice (1978), 66 Cr. App. R. 167 (C.A.); R. v. Smith (1990), 90 Cr.
App. R. 413 (C.A.); and R. v. Pitman, [1991] 1 All E.R. 468 (C.A.). In R. v. Bird and R. v. Smith, supra, where
the trial judge had or might have improperly promised a particular sentence, and the sentence following trial was
higher, the English Court of Appeal reduced the sentence despite being of the view that apart from the improper
conduct of the trial judge, the higher sentence was entirely fit. In R. v. James and R. v. Inns, the Court of Appeal
held that the judge's offer of a reduced sentence in exchange for a guilty plea in the midst of a jury trial vitiated
the plea. In R. v. Ryan the Court of Appeal held that there was improper pressure and granted a new trial
notwithstanding that their view that the trial judge was acting "from the best of motives" (at p. 181). In R. v.
Moss et al. the Divisional Court held that improper pressure may be either express or implied.
 -367-

important contribution to resolution discussions, by approaching the case with an open mind,

carefully absorbing any written material and the views of opposing counsel, meticulously

drawing out all considerations relevant to the point in issue, and then rendering such

considered opinions as can guide the discussions toward resolution or agreement. As one

commentator has observed, resolution discussions in England are "sometimes gently assisted

by the judge who, through counsel, discreetly signals his view that the proposed agreement

for disposition of the case seems appropriate, given all the facts and circumstances, and the

applicable law."99

While the Committee sees the duty of the judge to be impartial at a pre-hearing

conference as no less important than is the judge's duty to be impartial at trial, it cannot

be overlooked that judicial conduct at a pre-hearing conference may properly be somewhat

different than might be thought appropriate at trial. The essential reason for this lies in the

very important aspect of informality that prevails at a pre-hearing conference. The

Committee sees no difficulty with a pre-hearing conference judge participating in the

informal discussion at a pre-hearing more actively than he or she might during evidence or

argument in the courtroom, provided the judge's participation remains essentially that of a

neutral guide, rather than a partisan adversary. Thus, the judge can properly, for example,

draw out salient points, ensure that they are fully explored, direct the discussion to

important issues, keep matters on topic, and, generally speaking, do anything necessary to

fully explore the case at hand with a view to rendering impartial opinions or assistance. In

the course of doing so, however, the judge must scrupulously ensure that everything that can

properly be said about both sides is fully aired, that he or she does not dominate the

99 Bredar, supra, at p. 155. The Canadian Sentencing Commission recommended in Sentencing Reform: A
Canadian Approach, supra, at p. 425, that a judge should have the discretion "to indicate in chambers the general
nature of the disposition or sentence which is likely to be imposed upon the offender in the event of a plea of
guilty."
 -368-

discussion to the detriment of the parties' input, and does not pressure counsel to change

their position.100

74. The Committee recommends that if everyone is agreed on the suggested range of

sentence, and is content with the practice, there is no difficulty with the pre-hearing judge going

on to hear the plea of guilty. However, the pre-hearing judge should not hear the plea of guilty,

or any contested proceedings in the same prosecution other than adjournments or attendances

to set dates, unless all parties consent.

It is a basic presumption of the Committee, in approaching the issue of pre-hearing

conferences, that the pre-hearing conference judge will not preside over subsequent

substantive courtroom proceedings absent the consent of both parties. The present

recommendation embodies that presumption, as do others.

The need to distinguish between the functions of the pre-hearing conference judge

and the trial judge flows from the informal, "without prejudice" nature of pre-hearing

conferences, and the importance of preserving judicial impartiality in the courtroom to the

satisfaction of the parties. As noted above, the Committee contemplates that resolution

discussions presided over by a judge in a pre-hearing conference are to be wide-ranging,

informal, and without prejudice to the parties subsequently taking in open court any position

they think appropriate, subject only to undertakings given or agreements reached during

those discussions. Much of what would become evidence at a subsequent trial may be

discussed, and much that might not be admissible evidence at trial might be canvassed. For

example, resolution discussions pertaining to sentence might cover a number of subjects,

such as the impact that the offence has had on the victim, the prior criminal record of the

accused, or the extent of the accused's remorse for the criminal act in issue. All of these

matters are or may be inadmissible at trial prior to the sentencing stage, if any.

100 The Law Reform Commission of Canada, in their Working Paper No. 60, supra, recommended at p. 46
that "No judicial officer ... should offer any inducement for the purpose of encouraging an accused to plead guilty
to any offence."
 -369-

It follows that a judge presiding over a pre-hearing conference will inevitably hear

much about the case, some of which may be inadmissible at trial, that would properly lead

anyone else in the same position to form a view about an appropriate outcome. If a pre-

hearing conference is followed by a trial, the parties may therefore conclude, albeit

erroneously, that the pre-hearing judge is unable to approach the case with the open mind

necessary for a fair trial. Alternatively, they may feel constrained or inhibited in presenting

their case differently than it was presented in the course of inconclusive discussions at a pre-

hearing conference, even though those constraints or inhibitions may be more apparent than

real. Consequently, in the interests of encouraging the parties to fully explore their case at

a pre-hearing conference without prejudice to their right to subsequently litigate fully all

unresolved issues in open court, it is the Committee's view that the parties should, where

either one thinks it appropriate, be able to insist on a trial before a different judge.

The requirement of both parties consenting before a pre-hearing conference judge

can preside over subsequent substantive proceedings in the same case in open court is

important for another reason. Pre-hearing conferences are essentially exploratory in nature.

While resolution is to be greatly encouraged at such conferences, it is not mandatory.

Mandatory resolution is reserved exclusively to the trial courts, where a conviction and

sentence, or acquittal, may be pronounced over the objection of one party only after

adherence to the full panoply of trial procedures designed to protect its fairness, and after

it is subject to extensive appellate review. Thus, the present recommendation seeks to

ensure that pre-hearing conferences cannot lead to involuntary resolutions in that,

ultimately, the party upon whom such pressure might be exerted has the option of avoiding

such pressure altogether by insisting upon a trial in open court before a judge, with no

opportunity to form a view about the case before trial.101 While the parties should always

participate in good faith in resolution discussions, and retain an open mind about the

101 Crown counsel cannot exercise the option of insisting upon a trial to avoid undue pressure in a pre-
hearing conference if trial dates cannot be found that do not violate the accused's s. 11(b) right to a trial within
a reasonable time. Therefore, this recommendation, like others in the Committee's report, places an important
onus on those responsible for the administration of justice to ensure that reasonably prompt trial dates are always
available.
 -370-

possibility of resolving any issue differently from what they had contemplated going into the

conference, neither side need yield to a contrary view unless it accords with their best and

most dispassionate professional judgment.

Judges, on the other hand, while making every effort to facilitate discussion and,

where appropriate, resolution of issues, ought to scrupulously avoid exerting any undue

influence upon counsel during a pre-hearing conference simply for the sake of settling a

case. In this regard, it must be recognized that the very nature of the judicial role tends to

add the weight of authority to even the most carefully expressed views. The Committee's

present recommendation will, it is hoped, prevent any injudicious participation by a judge

in a pre-hearing conference by making it clear that the parties always have open to them

the option of proceedings in open court before a different judge.

However, where, following a thorough exploration of the issues in a pre-hearing

conference, the parties agree to a resolution, which includes a plea and a sentence that the

pre-hearing judge accepts as within an appropriate range, there is no concern about either

party erroneously perceiving it to be unfair that the judge continue to preside, and no

prospect that one party will have an unsatisfactory resolution forced upon him or her. Thus,

it is, in the Committee's view, appropriate if the parties consent, that the pre-hearing

conference judge remain with the case when it proceeds into open court for final disposition,

and the Committee has so recommended. Further, even absent resolution of some or any

of the issues in a prosecution, the parties may none the less have no concern about the pre-

hearing conference judge remaining with the case. In these circumstances, with the parties'

consent, the pre-hearing conference judge may preside over any subsequent proceedings in

open court.

The part of the Committee's recommendation which provides for sentencing by the

pre-hearing conference judge is aimed at making more expeditious the disposition of cases

resolved entirely in pre-hearing conferences. For example, scheduling arrangements and

other necessary provisions might be made to permit the parties and the judge, where full
 -371-

resolution is agreed upon, to proceed immediately from the pre-hearing conference room

to the courtroom to conduct the sentencing hearing. Thus, there can be little or no waiting

time between an early pre-hearing conference and the final disposition of the case. The

accused is spared the wait, the suspense, and the cost and inconvenience of re-attending for

further proceedings, perhaps some considerable time in the future. Victims enjoy the

benefits that come with early resolution. And counsel, the Court, and the administration

of justice are likewise saved the expense of unnecessary rescheduling, re-attendance, and/or

becoming re-acquainted with the case.

The Committee is also of the view that the part of this recommendation pertaining

to sentencing by the pre-hearing conference judge can encourage early resolution by

according to accused persons as much certainty in the outcome of cases as is consistent with

the due administration of justice. As discussed above, the Committee accepts that, for many

accused persons, the inability to know with precision what sentence will be imposed

following a plea of guilty is a significant barrier to agreeing to enter such a plea.

Naturally, there is an appropriate range of sentence for virtually any offence other

than those for which mandatory penalties have been enacted by Parliament. Within that

range, the final decision as to sentence rests with the sentencing judge alone, subject only

to appellate review. Therefore, accused persons cannot know, with absolute certainty, prior

to plea, the sentence to be imposed following plea. The Committee has, as explained above,

rejected the American approach, whereby a judge who disagrees with a proposed plea and

sentencing agreement must strike the guilty plea entered.

However, the Committee sees its recommendation permitting sentencing to be

carried out by the pre-hearing conference judge as according the accused the benefit of

considerable advance knowledge respecting the likely sentence to be imposed. Following

a pre-hearing conference, at which the position of both the Crown and the defence are fully

explored, and the opinion of the judge is offered, an accused person is much better placed

to know, within a relatively limited realm, what the sentence will be, than he or she would
 -372-

be prior to such a conference. In effect, the pre-hearing conference can serve as an

important indication of the judicial perception of the case. Thereafter, if the same judge

is sentencing the accused, it is entirely likely that, if the facts brought out in open court are

consistent with those discussed in the pre-hearing conference, the outcome will likewise be

consistent with the opinion offered in the pre-hearing conference.

The advantage of relative certainty as to the outcome of the case is accorded to the

accused, without sacrificing the discretion of the sentencing judge to ultimately impose

whatever he or she sees as a fit and just sentence. The judge presiding at a pre-hearing

conference need not, and ought not, offer any opinion at all about an appropriate range of

sentence, absent a comprehensive discussion of all salient features of the case.102

Therefore, following a sufficiently detailed discussion of the facts and circumstances relevant

to sentence, the opinion offered by the judge in conference would not be any less informed

than would a sentencing decision made in open court. Furthermore, whether stated or not,

it is clearly an ever present condition of any such expression of opinion by a judge that a

proposed range of sentence is appropriate, and that the sentence to be imposed in court will

reflect only what actually comes out in court, as opposed to what is said in the pre-hearing

conference, in the event that there is any difference. Thus, the fact that the sentence

subsequently imposed in court by the pre-hearing judge falls within the range suggested in

the pre-hearing conference is not in any sense an encroachment upon the judge's sentencing

discretion. It is, rather, merely the result of moving part of the sentencing decision-making

process out of the formal setting of the courtroom and into the pre-hearing conference

room.

10“ In R. v. Ryan (1978), 67 Cr. App. R. 177, the English Court of Appeal held as follows:

It cannot be emphasised too strongly that the judge should never indicate
[views with respect to sentence] unless he is sure ... and that means unless he
knows all the facts.

In this particular case, the deputy circuit judge fell into error because he only
knew part of the facts so he was faced with great difficulty when additional
facts came out which made him pass the sentence which he said originally he
would not pass.
 -373-

The Committee does emphasize, however, that counsel and the accused are not

entitled to expect a pre-hearing judge to do anything more than offer an opinion that a

particular sentence or range of sentence does not appear unreasonable. The judge should,

as recommended above, give due weight to a joint submission, but the judge need not, and

ought not, commit himself or herself in advance to a particular sentence. This would be an

abrogation of his or her duty to make the final, discretionary decision in the matter of

sentence: R. v. Dubien, supra\ R. v. Turner, supra.

75. The Committee recommends that, during a plea and sentencing following a pre-hearing

conference, it is important to create a full record in open court, including sufficient detail about

the circumstances of the offence, the offender, and, where appropriate, the victim.

In a comprehensive pre-hearing conference, where issues have been canvassed

thoroughly, it may often be the case that resolution agreements are reached which are well

comprehended by all. Thus, in courtroom proceedings following such a conference, counsel

and the Court, acting upon the shared view of the case, may be tempted to be brief, to the

point of being unclear to the outside observer in their courtroom presentations. This

understandable tendency toward incomplete presentations in court following a pre-hearing

conference resolution agreement must, however, be carefully avoided for a number of

reasons.

First and foremost, it must not be overlooked that a judge never enters a conviction

or imposes sentence in a pre-hearing conference. It is imposed only in open court.

Therefore, the conviction entered or sentence imposed in open court must be in all respects

responsive to the facts that come out in open court. Except in the most unusual cases,

where the need for confidentiality is overwhelming, a conviction or sentence premised upon

unstated assumptions that have not become part of the relevant evidence or argument in

court is simply an unfit sentence.

 -374-

The practice of putting too little on the record in open court following a pre-hearing

conference undermines not only the propriety of the conviction or sentence itself, but it also

impairs the process of orderly appellate review. Appellate courts are entirely dependent

upon transcripts of courtroom proceedings in assessing the fitness of the results reached at

trial. The Committee has made no recommendation to record pre-hearing conferences

where resolution agreements may often be reached, and the current practice is not to record

such conferences. Thus, the failure to state relevant matters in open court, so that they do

not appear in the transcript of the proceedings, is a matter of considerable concern to

counsel who argue appeals, and the appellate judges who decide them. The concerns of

appellate judges and counsel in turn makes the creation of a sufficient record in open court

a matter of considerable concern to trial counsel who wish their resolution agreements to

withstand appellate scrutiny. It is, of course, likewise important to the administration of

justice that matters disposed of at trial and then appealed not be sent back to the trial court

simply because of a failure to create the record that would have justified the initial outcome.

Failing to create a sufficient record at the trial level results in time, expense, and effort

having to be devoted to avoidable, and therefore unnecessary, rehearings.

Third, there is the important dimension of accountability motivating the need to

create a sufficient record in open court following a pre-hearing conference. Counsel, the

accused, the Court, and the administration of justice are certainly, in the Committee's view,

well entitled to the considerable benefit that the informality of pre-hearing conferences

often brings. However, these important benefits do not come without accompanying

obligations. These obligations are in part owed to victims, witnesses, and the general public,

who must always be in a position to see justice being done. Since the public does not attend

at pre-hearing conferences, these obligations can be discharged only by taking great care to

ensure that all considerations relevant to the disposition sought are placed upon the record

in open court. This practice offers much highly important information to observers about

the criminal justice system. It is, in effect, the observer's sole source of firsthand evidence

that the justice system is operating fairly, and, in the case of victims, is taking due account

of their interests.
 -375-

The recently enacted s. 731.1 of the Criminal Code further emphasizes the need to

create a full record of the sentencing hearing, because information relevant to sentencing

may subsequently be useful in a correctional setting. Section 731.1 provides as follows:

A court that sentences or commits a person to penitentiary shall forward to

the Correctional Service of Canada its reasons and recommendations relating
to the sentence or committal, any relevant reports that were submitted to the
court, and any other information relevant to administering the sentence or
committal.

It appears that, pursuant to this provision, the sentencing hearing may become an important

source of information for parole and other decisions made by correctional authorities. As

such, parties to the sentencing proceedings must take care to ensure that matters they

consider potentially relevant to these later stages are canvassed in open court following a

pre-hearing conference.

It is the Committee's view that the present recommendation applies with equal force

to courtroom proceedings following resolution discussions between counsel that are not

presided over by a judge. It is discussed in the context of pre-hearing conferences, because

the tendency for the courtroom proceedings to be too brief and lacking in detail appears to

the Committee to be greatest when all parties and the presiding judge have a comprehensive

pre-existing understanding of the case based on the pre-hearing conference. While there

may be less tendency to be overly brief in courtroom sentencing proceedings before a judge

who has not become familiar with a case in a pre-hearing conference, it is none the less

important, for the reasons given above, for counsel in this situation to take all steps to

ensure that a full record is created.

76. The Committee recommends that the Attorney General request of the federal government

that s. 625.1 of the Criminal Code be amended to read as follows:

 -376-

625.1 (1) Subject to subsection 2, on application by the prosecutor or the

accused or on its own motion, the court before which, or the judge, provincial
courl judge or justice before whom any proceedings are to be held may order that
a conference between the prosecutor and the accused or counsel for the accused,
to be presided over by the court, a judge, or a provincial court judge or justice,
be held prior to the proceedings to consider such matters as will promote a fair
and expeditious hearing, including, where just and appropriate, final resolution
of the charges in issue in the proceedings. The judge, provincial court judge or
justice who presides over such a conference shall not preside over the trial, a plea
of guilty, or any contested proceeding other than adjournments or attendances to
set dates in the same matter without the consent of the prosecutor and the
accused.

(2) In any case to be tried with a jury, a judge of the court before which the
accused is to be tried shall, prior to the trial, order that a conference between the
prosecutor and the accused or counsel for the accused, to be presided over by a
judge of that court, be held in accordance with the rules of court made under
section 482 to consider such matters as will promote a fair and expeditious
heating, including, where just and appropriate, final resolution of the charges in
issue in the case.

In furtherance of the Committee's general recommendation above that the judiciary

at all levels of trial court become involved in pre-hearing conferences, the Committee has

proposed the preceding amendments to s. 625.1. The essential changes to s. 625.1 proposed

by the Committee are three in number.

First, the Committee has recommended that the words "with the consent of the

prosecutor and the accused" be removed from s. 625.1(1) as it presently appears in the

Criminal Code. This change will, in the Committee's view, permit judges of the Provincial

Division and General Division, where there has been an election to be tried by judge alone,

to order pre-hearing conferences to occur wherever they alone think it proper to do so.

Submissions made to the Committee indicate that the defence Bar has been co-operative

in responding to initiatives aimed at increasing the use of voluntary pre-trials under the

present statutory scheme. Thus, the Committee does not make this recommendation in

order to permit forced compliance with an unpopular practice. By granting judges in all

cases the power to order pre-trial conferences, this amendment will, the Committee hopes,
 -377-

encourage their broader use throughout the criminal justice system, and remove any

tendency to see them as an unusual judicial step that must be approved by the parties. This

amendment is also consistent with submissions received by the Committee and referred to

above, that counsel are more inclined to sit down and discuss the case with each other if the

meeting is arranged and convened by an independent third party, such as a court official.

While the Committee recommends that there be no specific statutory limits set out

in s. 625.1 on when the court may order a pre-hearing conference, the Committee does not,

as is the case in jury trials pursuant to s. 625.1(2), suggest that pre-hearing conferences be

mandatory in all cases. The reasons for not requiring a pre-hearing conference in all cases

are precisely the same as those discussed above in the context of explaining why counsel's

responsibility to engage in resolution discussions is not applicable in every case. Many cases

are simply not complicated enough to warrant specially arranged pre-hearing discussion.

Therefore, requiring them in all cases would reduce their effectiveness, as they would tend

to become pro forma. The Committee relies on the expertise of the judiciary, and their

experience with the counsel and the cases in their jurisdictions, to order pre-hearing

conferences wherever necessary, but only where necessary. There may also be cases in

which the Court, based on standard features such as the anticipated length of the case, may

not, of its own motion, order a pre-hearing conference. None the less counsel, in discussions

with each other or in their own estimation, may think such a conference desirable. In these

cases, either party may apply to the Court seeking a pre-hearing conference. The Court may

then so order if, in the discretion of the judge hearing the application, such a conference will

promote a fair and expeditious hearing.

The second change to s. 625.1 proposed by the Committee is the inclusion in both

625.1(1) and 625.1(2) of the words "including, where just and appropriate, final resolution

of the charges in issue in the proceedings." These additional words are intended to echo the

Committee's earlier recommendation on point, and thus make clear in the Criminal Code

what may previously have been only implicit: a judge presiding over a pre-hearing

conference can preside over discussions relating to plea and sentence. It is important, in
 -378-

the Committee's view, to make explicit reference to final resolution of a case in s. 625.1 to

make clear to the public, and to any of the potential participants in such a conference who

may be reluctant to preside over or engage in such discussions, that they are provided for

by law, and are not in any sense an improper subversion or avoidance of the trial process.

The third and final aspect of the Committee's proposed amendments to s. 625.1 is

the addition to s. 625.1(1) of the last sentence found in that sub-section as set out above.

The purpose of this sentence is to ensure that a judge who presides over a pre-hearing

conference will not preside over any subsequent courtroom proceedings in the same case

in which significant substantive issues are likely to arise, without the consent of both parties.

The principles animating this proposed amendment are discussed in the Committee's

general recommendation to that effect, above.

The Committee has not proposed that a similar limitation on the capacity of the pre-

hearing conference judge to subsequently preside over the proceedings be added to s.

625.1(2), which deals with jury trials where a pre-trial is already mandatory. In Ontario, the

practice of having different judges preside over the s. 625.1(2) pre-hearing conference and

the trial itself is already well established. Further, Rule 28 of the Criminal Proceedings

Rules, which governs the conduct of pre-hearing conferences pursuant to s. 625.1(2), already

implicitly requires, in the Committee's view, that the pre-hearing judge will not be the trial

judge. In any event, at jury trials the presiding judge does not decide the ultimate issue of

guilt, and thus it may be less problematic for him or her to conduct the trial with some

previous knowledge of the particulars of the case.

77. The Committee is of the view that, absent exceptional circumstances, it is inappropriate

to engage in resolution discussions with the trial judge in Chambers.

There are two salient aspects to this recommendation by the Committee. The first

is that clearly any party seeking to engage in resolution discussions before the trial judge is

seeking to engage in such discussions at the last minute. Thus, the Committee's discussion
 -379-

following its earlier recommendation against last minute resolution discussions applies with

equal force to the present recommendation. By the time of trial, the parties have, as

contemplated by the Committee's recommendations, been accorded ample opportunity to

engage in full and comprehensive resolution discussions, including resolution discussions

before a judge, at a pre-hearing conference. Therefore, further resolution discussions before

the trial judge should be unnecessary. To ensure that those ample opportunities provided

to resolve a case are utilized, and the benefits of early resolution realized, it is necessary,

in the Committee's view, to discourage last minute resolution discussions by making the

present recommendation.

The second important aspect of this recommendation is the impropriety, in the

Committee's view, absent exceptional circumstances, of involving the judge who will preside

over the trial, in resolution discussions. Earlier statements implying that it was not

inappropriate to consult the trial judge about a proposed sentence, and placing outer limits

on the assurances the trial judge could give when consulted in this manner, were made

before the development of pre-hearing conferences. The Committee has discussed, in the

context of pre-hearing conferences, the importance of ensuring that a judge who is privy to

resolution discussions should preside over the subsequent substantive proceedings only with

the consent of the parties. Should resolution discussions in the middle of the trial be

unsuccessful, either of the parties, or both, may be of the view that the trial judge should

not continue to preside, which clearly places the entire trial in jeopardy, and places counsel

in the difficult position of having to request that the trial judge discontinue presiding.103

In the Committee's view, a criminal trial should not be subjected to the risk of such

disruption by resolution discussions that ought to have been fully conducted much earlier

in the process.

Further, by the time a trial has arrived, it is presumed that the parties have already

found all the common ground that is to be found through informal discussions, and the trial

103
R. v. Pitman, supra, at 471j-472a.
 -380-

judge must therefore resolve a serious dispute. In these circumstances, it is of primary

importance that the trial judge's role be discharged in open court. As stated by Branca J.A.

of the British Columbia Court of Appeal in R. v. Johnson (1977), 35 C.C.C. (2d) 439 at 453:

It is a cardinal principle of our jurisprudence that a trial, whether with or

without a jury, is a public trial except in certain statutory cases; that the
members of the jury, the accused and the public are entitled to free access to
the law Courts and the trial to see and to hear the totality of the full drama
of the trial.... It is of great importance not only that justice should be done
substantially but that it must appear to be done and it cannot appear to be
done where the learned trial Judge has many conferences with counsel in his
Chambers.

An accused may be particularly disadvantaged by discussions in Chambers during

trial, as he or she has to rely second hand upon what the judge has said about matters of

great importance, cannot determine what counsel has said (or not said) on his or her behalf,

and thus cannot correct any misstatements.104 Further, the prosecution may be

disadvantaged, as any admission made by counsel for the accused in Chambers discussions

where the accused is not present might not be taken as having been made with the consent

of the accused: R. v. Turner (1975), 61 Cr. App. R. 67 (C.A.). Therefore, resolution

discussions, and indeed any discussions pertaining to issues of substance at the trial, ought

not to occur with the trial judge in Chambers, absent exceptional circumstances. The

English standard is that Chambers discussions "should never take place unless there is no

alternative."105 Further, they should not be initiated by the trial judge.106

104 R. v. Harper-Taylor, R. v. Bakker, [19911 R-T.R. 76 at 81. See also R. v.Agar (1990), 90 Cr. App. R. 318
(C.A.).

105 R. v. Harper-Taylor, R. v. Bakker, [1991] R.T.R. 76 (C.A.) See also R. v. Pitman, supra; R. v. Turner,
supra; R. v. Keilly, supra; R. v. Janies, supra; R. v. Bird, supra; R. v. Ashton-Rickhardt, [1978] 1 All. E.R. 173 at
179e-g (C.A.); R. v. Llewellyn (1978), 67 Cr. App. R. 149; R. v. Winterflood (1978), 68 Cr. App. R. 291 (C.A.);
R. v. Plimmer (1975), 61 Cr. App. R. 264 (C.A.); R. v. Coward (1980), 70 Cr. App. R. 70 (C.A.); R. v. Agar,
[1990] 2 All E.R. 442 (C.A.); R. v. Worth (1991), 93 Cr. App. R. 187 (C.A.); and R. v. Bigley, 3 July, 1992,
unreported (Eng. C.A.). One commentator has noted that cases such as the foregoing have been "remarkable
for the vivid language in which the Court of Appeal has revealed dissatisfaction, if not irritation, with the
apparent indifference of both the Bar and the judiciary either to criticism or warnings": P. Curran, "Discussions
In The Judge's Private Room", [1991] Crim. L.R. 79.
 -381-

The Committee also thinks it important to keep the two important functions that

judges can play in the administration of criminal justice, for the most part, structurally

distinct. On the one hand, at the early stages of the criminal process, the judge, all the

while strictly maintaining his or her impartiality, can properly facilitate resolutions through

informal pre-hearing conferences. And on the other hand, if informal resolution efforts are

not successful, a different judge will preside over the case, in an open courtroom, in full

compliance with the prevailing methods of our adversarial system. The two processes

represent different ways of resolving a criminal dispute, each of which has great potential

to settle issues of first importance to any community. However, their differences should be

respected, emphasized, and maintained by discouraging any requests that a trial judge

perform both functions simultaneously. The English Court of Appeal put the point as

follows in R. v. Hcirper-Taylor, [1991] R.T.R. 76 at 81:

[Sjeeing the judge in private creates risks of more than one kind, as the
present case has shown. The need to solve an immediate practical problem
may combine with the more relaxed atmosphere of the private room to blur
the formal outlines of the trial. Again, if the object of withdrawing the case
from open court is to maintain a degree of confidence, as it plainly must be,
there is room for misunderstanding about how far the confidence is to extend;
and, in particular, there is a risk that counsel and solicitors for the other
parties may hear something said to the judge which they would rather not
hear, putting them into a state of conflict between their duties to their clients,
and their obligation to maintain the confidentiality of the private room.107

The Committee has recognized that, in exceptional circumstances, it may be

appropriate to discuss resolution of the case at hand with the trial judge. These exceptions

should be, for the most part, a result of very late developments in the case that could not

have been reasonably anticipated. There should exist considerable likelihood that the case

can be resolved in its entirety, so that the judge is unlikely to have to return to the

106 In R. v. Cullen (1985), 81 Cr. App. R. 17, the English Court of Appeal held that, "We disapprove of a
judge himself taking the initiative in sending for counsel."

107
See also R. v. Agar, supra, at 448f-h.
 -382-

courtroom following unsuccessful resolution discussions to preside over a trial about which

he or she knows much that is not in evidence. For example, an accused person being tried

by a judge alone might perceive it to be contrary to his or her best interests for defence

counsel to discuss sentence with the trial judge, and if the discussions produced no

resolution, return to open court and argue for an acquittal. Further, once the trial has

commenced, there should be a compelling reason why an issue ought to be addressed in

Chambers, rather than in open court. The parties must also be agreeable to going into

Chambers at trial, so that the Chambers discussion cannot be misused as an opportunity to

bring undue pressure to bear on counsel to resolve the case.

One example of where Chambers resolution discussions are appropriate during trial

might be where an accused person has unexpectedly provided to the prosecution helpful

information pertaining to an ongoing investigation. In these circumstances, counsel may

agree that a plea arrangement that recognizes this assistance is warranted. Such a resolution

discussion could be discussed in Chambers, rather than conducted fully in open court,

because of the need to preserve the integrity of the other investigation. This example

demonstrates how, in the Committee's view, exceptions to the recommendation that there

be no resolution discussions with the trial judge should be relatively rare.

Finally, it is to be noted that the Committee's recommendation applies to resolution

discussions alone. Counsel, at present, may attend in Chambers during the trial to discuss

procedural or administrative matters relevant to the trial, such as setting further dates, or

arranging the scheduling of witnesses. The Committee sees nothing wrong with this practice.

78. The Committee is of the view that, as a general rule, open to some exceptions, any

resolution discussions that do take place with the trial judge in Chambers should be recorded.

In the Committee's view, discussions in Chambers during a trial that touch upon the

merits of the case should generally be recorded to preserve the integrity of the trial record

itself. The practice in many jurisdictions in the United States is instructive in this respect.
 -383-

Frequently, during the course of a trial, informal and impromptu conferences between the

judge and counsel occur at the Bench, out of earshot of the accused, witnesses, and the

public. These impromptu conferences are recorded.

Likewise, in England, the Court of Appeal has held on several occasions that

Chambers discussions ought to be recorded.108 For example, in R. v. Cullen (1985), 81 Cr.

App. R. 17, the Court of Appeal stated at 18-19:

A most unhappy feature arose in this case affecting the relationship between
the Bar and the Bench. Before the trial commenced the judge sent for
counsel. No other person was present and no note was taken of what passed
between counsel and the judge. What transpired is therefore now a matter
of recollection, different versions of which have been put before us....

Which is the accurate version of what happened this Court cannot possibly tell
after this lapse of time.

The Court of Appeal thereafter held that they were bound to quash the sentence, based on

what "may have happened" in the Chambers discussion, and, according to the appellant, the

benefit of the doubt that arose.109

Chambers resolution discussions during trial, to the extent that they occur at all,

obviously have great potential to bring about a significant change in the direction of the

trial. It is, therefore, all but imperative that a record of such discussions be created, so that

a reviewing court can properly comprehend the entire proceedings at trial, including the

reasons for unexpected changes in the course of the proceedings. In addition, it would, in

108 See, for example, R. v. Johnson, R. v. Lorraine, The Times Law Reports, 21 May, 1990, p. 386; R. v. Bird,
supra\ R. v. Keilly, supra-, R. v. Llewellyn, supra', R. v. Winterflood, supra; R. v. Harper-Taylor, supra; R. v. Smith,
supra; R. v. Pitman, supra; and R. v. Warth, supra.

109 See also R. v. Smith, supra, where the Court of Appeal again felt obliged to give the Appellant the benefit
of the doubt about what had transpired in Chambers, and therefore "reluctantly" lowered the sentence despite
being of the opinion that the sentence imposed was "richly deserved." The Court also expressed disapproval of
the "unseemly" dispute that occurred in open court between counsel and the judge about what the judge had or
had not indicated in Chambers.
 -384-

the Committee's view, significantly undermine the important public nature of a criminal trial
if, by the simple expedient of attending in Chambers, the recording of proceedings highly
relevant to the trial could be avoided, without any justification. See Johnson, supra.

It may be, as in the example above, that such rare Chambers resolution discussions
as do occur during trial relate to matters of unusual delicacy, even for a criminal court.
Thus, the Committee recognizes the occasional pressing need to prevent widespread
dissemination of the details of Chambers discussions. In the Committee's view, however,
this can be readily done by an order controlling access to the recording as strictly as
necessary in the circumstances. Such an order can preserve such confidentiality without
undermining the accountability of those responsible for the conduct of a trial, and
potentially impeding subsequent appellate review of the proceedings. It is only where an
order limiting distribution of the recording could not be effective that Chambers resolution
discussions should be conducted without being recorded. In the Committee's view, however,
this would be only in the rarest of the rare cases where such discussions are appropriate at
all.

79. The Committee recommends that the Attorney General issue such public guidelines as
are appropriate to implement the Committee's recommendations with respect to resolution
discussions.

The concluding recommendation to this chapter addresses the process of

implementing the Committee's recommendations on resolution discussions.110 In this
respect it is necessary to refer to the Committee's recommendations and general discussion
on guidelines and directives from the Attorney General, found in Chapter II, on charge
screening. The essential points to be taken from that discussion are twofold. First, Crown
counsel should not, except in rare circumstances, be obliged in the conduct of prosecutions

110 On the advantages of guidelines in this area of criminal procedure, see D.W. Perras, "Plea Negotiations",
supra, at p. 70.
 -385-

to adhere to mandatory directives. Rather, the Attorney General should issue guidelines

that emphasize matters of concern, while allowing for the responsible exercise of discretion

by Crown counsel in light of the particular circumstances of the case at hand. Second, such

guidelines or rare directives issued by the Attorney General to his or her agents should not

take effect until they are made known to the public, so that the exercise of discretion by

Crown counsel is guided, at all times, by publicly known considerations.

.
 CONCLUDING RECOMMENDATION

80. The Committee recommends that the Solicitor General and the Attorney General take

appropriate steps and commit sufficient resources to provide instruction, training, and continuing

education for police officers and Crown counsel as to the Committee's recommendations and

views.

The Committee's recommendations and opinions cover a broad, and, in the

Committee's view, very important part of our criminal justice system. The recommendations

and opinions are numerous and, in many cases, detailed. Further, as the Committee has

emphasized in this Report, they must be viewed as necessarily interconnected, as constituent

parts of a single approach to the administration of criminal justice. The effectiveness of the

Committee's recommendations and opinions in any one of the areas of charge screening,

disclosure, and resolution discussions will depend greatly upon the extent to which the

recommendations and opinions in the other areas are diligently followed.

In the Committee's view, an integrated approach to the recommendations and

opinions is the only method of fully realizing their potential to enhance the fairness and

efficiency of the criminal trial process. However, this places a correspondingly greater onus

upon defence counsel, the police, and Crown counsel to understand, and adapt to, the entire

breadth of the Committee's recommendations and opinions. Throughout this Report, the

Committee has emphasized the importance of both integrity and professional responsibility

to the fair and efficient functioning of the early stages of the criminal trial process. The

Committee has confidence that Crown counsel, defence counsel, and the police will

demonstrate this responsibility and integrity, upon which the administration of justice

depends, in conscientiously endeavouring to adapt their practices to accord with the

Committee's recommendations and opinions. However, given their breadth and detail, the

Committee is of the view that formal instruction, training, and continuing education will also

be necessary to assist in this regard.

 -388-

Much of the education, training, and instruction necessary to ensure that the

Committee's recommendations are effectively put into practice should occur within the

Ministries of the Solicitor General and the Attorney General. These Ministries should, in

the Committee's view, organize continuing education seminars on charge screening,

disclosure, and resolution discussions, both for Crown counsel and the police. These

seminars could take place at the local, regional, or provincial level, as is thought desirable.

Naturally, the recommendations and opinions of the Committee should also be thoroughly

taught during the training of police recruits, and during the pre-existing formal educational

programs offered to Assistant Crown Attorneys.

The Committee is also of the opinion that much of the education necessary to the

effective implementation of its recommendations and opinions may usefully take place in

forums beyond the Ministries of the Attorney General and the Solicitor General. Clearly,

the Committee's recommendations and opinions will have practical effects upon the conduct

of the defence in criminal cases. The Committee's recommendations and opinions will also

be relevant to others involved in the administration of criminal justice. Therefore, the

Committee recommends the broad distribution of this Report. Included among the

recipients should be various organizations, with a membership drawn from the criminal

defence Bar, the faculties of law at all Ontario universities, and the Law Society of Upper

Canada's Bar Admission Course and Department of Continuing Legal Education.

In short, it is the view of the Committee that the potential of its recommendations

and opinions to enhance the fairness and efficiency of the administration of criminal justice

in Ontario cannot be realized without a concerted effort to educate those who will

ultimately put the recommendations and opinions into effect. Further, the Committee is

confident that co-operative approaches to education, combined with a willingness on the part

of Crown counsel, defence counsel, and the police to maintain the highest standards in the

criminal justice system in Ontario, will permit the Committee's recommendations and

opinions to be put into practice successfully.

APPENDICES
 APPENDIX A

ADVISORY COMMITTEE TO THE ATTORNEY GENERAL

THE MANDATE OF THE COMMITTEE

1. The mandate of the Committee is to inquire into and make recommendations on the
practices of the Criminal Law Division relating to disclosure, the vetting of cases and
the conduct of resolution discussions.

THE OBJECTIVES OF THE COMMITTEE

2. The objective of the Committee is to ensure the quality of the administration of

justice in Ontario, including the right to make full answer and defence, the privacy
of witnesses, the need to preserve the truthseeking capacity of the trial and the public
confidence in the administration of justice.

3. Insofar as the Committee is to focus upon disclosure practices in Ontario, it is to

review the existing directive of the Attorney General, both as to principles and to
practical application, including the need to ensure uniformity of application across
the province, to increase the efficiency of the Courts and to reduce the delay in
bringing matters to trial.

4. Insofar as the Committee is to focus upon the vetting of charges, it is to consider and
determine whether or not there should be vetting of charges and, if so, at what stage
of the proceedings should the vetting occur - pre-charge or post-charge.

5. Insofar as the Committee is focusing upon resolution discussions, it is to consider the

principles underlying such discussions and the timing of them.

THE COMPOSITION OF THE COMMITTEE

6. The Committee is to consist of members of the following groups:

Defence Bar, Two from outside Metropolitan Toronto (4)

Criminal Law Division, Two from outside Metropolitan
Toronto (4)
Ministry of the Solicitor General (1)
Representatives of the Police (3)
- R.C.M.P. (1)
Federal Department of Justice (1)

Total Members (14)

 -392-

7. The representatives of each of the groups on the Committee may be nominated by

their member organizations.

THE STRUCTURE AND SUPPORT OF THE COMMITTEE

8. The Committee shall appoint a three-member Steering Committee consisting of one

representative from the defence bar, the Criminal Law Division and the police
community. Each of the groups may nominate their representative on the Steering
Committee.

9. The responsibility of the Steering Committee is to schedule the meetings of the

Committee, to set the agenda for the meetings, to ensure that the Committee as a
whole is functioning properly and on a timely basis, to provide regular briefings to
the Attorney General and to supervise the production and the presentation of the
final report to the Attorney General.

10. The Ministry of the Attorney General will make available to the Committee a
secretary with appropriate office space and a research assistant.

THE REMUNERATION OF THE MEMBERS OF THE COMMITTEE

11. Remuneration is at issue only for the non-governmental representatives of the

Committee. Those representatives will only be reimbursed for reasonable expenses
associated with the business of the Committee. They will be required to follow the
government's guidelines relating to travel and other expenditures. No other
compensation will be paid to them.

12. For those members of the Committee who are employed by governmental agencies,
all of their expenses will be paid by the Ministry employing them.

THE ACCOUNTABILITY/PARTICIPATION BY MEMBERS OF THE COMMITTEE

13. The individual members of the Committee may speak as individuals or, if they wish
to do so, on behalf of the group nominating them.

THE CONSULTATIVE PROCESSES OF THE COMMITTEE

14. The consultative processes of the Committee outside of Ontario shall be undertaken
by an established sub-Committee.
 -393-

15. The intra-provincial consultations of the Committee will be conducted within each
group by its representatives as they see fit.

16. The Committee must consult with the judiciary and may consult with other interest
groups as its sees fit.

THE FINAL REPORT OF THE COMMITTEE

17. The Committee is responsible for preparing a final report to the Attorney General
and Solicitor General with recommendations and estimates of the cost, if possible.
Assistance in preparing such cost estimates will be provided by the Director of
Divisional Planning and Administration and his/her equivalent at the Ministry of the
Solicitor General.

18. If the recommendations in the final report are not unanimous, dissenting options
should be stated.

19. The report may list the groups that were consulted and, if the Committee sees fit to
do so, it may attach any written submissions made by or on behalf of the groups.

20. The final report of the Committee will be in writing. However, the Attorney General
may provide the Committee with an opportunity to make oral submissions to him.

THE TIMING OF THE PROJECT

21. The Committee's written report will be made directly to the Attorney General. It
shall commence its task by June 14, 1991 and will complete it as soon as is
practicable having regard to the breadth and complexity of the issues within the
Committee's mandate.

THE FINANCIAL IMPLICATIONS OF THE PROJECT

22. The resourcing required to support the Committee is presently estimated to be

approximately $49,800.00. This is based upon a Committee functioning for
approximately four months. Attached to this memorandum is a chart showing the
financial implications of the project.
.
 395
APPENDIX B

Ontario
Ministry of
the Attorney
General
Ministere
DISCLOSURE
du Procureur
general

POLICY STATEMENT
It is recognized that there is a general duty upon the Crown to
disclose the case-in-chief for the prosecution to counsel for the accused,
and to make counsel for the accused aware of the existence of all other
evidence relevant to the guilt or innocence of the accused. There is no
general duty on the Crown to disclose evidence which is not part of the
case in chief for the prosecution or which is not initially relevant to the
guilt or innocence of the accused but which becomes admissible only
as reply evidence. In addition, matters which on public policy grounds
could jeopardize a state or individual interest should be the subject of
careful scrutiny.
The purpose of disclosure by the Crown is threefold:
a) to ensure that the defence is aware of the case-in-chief for the
prosecution and all other evidence relevant to the guilt or
innocence of the accused;
b) to resolve non-contentious and time-consuming issues in
advance of the preliminary hearing or trial in an effort to ensure
more efficient use of court time;
c) to encourage the resolution of cases including where appropriate
the entering of guilty pleas at a date early in the proceedings.
The guilding principle is always full disclosure of the case-in-chief
for the prosecution and all other evidence relevant to the guilt or
innocence of the accused. Such full disclosure may only be limited where
there is a real need to protect the integrity of the prosecution, including
the need to prevent the endangerment of the life or safety of witnesses
or interference with the administration of justice. Any limitation on such
full disclosure requires the prior written approval of the Regional Director
of Crown Attorneys.

SPECIFIC REQUIREMENTS
1. Counsel for the accused is entitled, upon written request, to full
disclosure as soon as reasonably practicable. Bearing in mind the
POLICY STATEMENT set out above, full disclosure means the provision
of at least the following:
a) the circumstances of the offence, as disclosed by a summary
prepared by the investigating police agency;
 396
APPENDIX B

b) where they exist, copies of all written statements of those persons

who have relevant evidence to give;
c) where such do not exist, copies of a summary of the anticipated
evidence of those persons who have relevant evidence to give;
d) a copy of any statement made by the accused to persons in
authority, and in the case of oral statements a verbatim account
of the statement, whether intended to be adduced or not;
e) particulars of the accused’s criminal record;
f) copies of all medical and laboratory reports which relate to the
offence except to the extent that they may contain irrelevant or
privileged information;
g) where capable of reproduction, copies of all documents and
photographs that the Crown intends to introduce into evidence
during the case-in-chief for the prosecution and, an appropriate
opportunity to inspect any exhibits whether it is the Crown’s
intention to introduce them or not;
h) an appropriate opportunity to view the videotaped statement of
a witness.

2. It is understood that subsequent to the disclosure set out above, there

is a continuing obligation on the Crown to disclose evidence which may
become part of the case-in-chief for the prosecution or which is otherwise
relevant to the guilt or innocence of the accused.

ADDmONAL MATTERS

3. Additional disclosure beyond what is outlined above may be made

at the discretion of the prosecutor, balancing the principle of full
disclosure with the need to prevent endangerment of the life or safety
of witnesses or interference with the administration of justice. Such
additional disclosure may include names and addresses of witnesses,
keeping in mind possible need for protection from intimidation or
harassment. In any case where names and addresses of witnesses are
provided, the police should be asked to contact the witness to advise
the witness of the fact that he or she may be contacted by the Defence
and that it is up to the witness to decide if he or she wishes to be
interviewed.

4. Crown counsel, in their discretion, shall determine how disclosure

will be made to an unrepresented accused.

CRIMINAL LAW DIVISION DIRECTIVE #D2

October 1, 1989
 APPENDIX C

THE PRINCIPAL ISSUES RELATING TO THE

SCREENING OF CRIMINAL CHARGES

Should an agent for the Attorney General review a charge laid for the
purposes of determining whether or not it is in the best interests of the
administration of justice to prosecute it?

Is the likelihood of a conviction sufficient to justify the prosecution of

a charge? Should a prosecution be continued only where there is a
substantial likelihood of a conviction? Should a prosecution be
continued where a conviction would be proper as a matter of law and
might be obtained and what is the proper test to apply?

Should the review of the charge include an assessment of the probative

value of evidence, including the credibility of witnesses?

Should the review of the charge include a determination of the

admissibility of evidence made available by the investigator?

Should a review of the charge include consideration of defences and

remedies that might be available to the accused? Should Crown counsel
be required to provide an opportunity for defence counsel (or the
accused personally) to be heard during the screening process?

What is the proper principle to be applied in deciding whether the

charge should be laid or withdrawn?

In determining whether or not the prosecution of the charge would be

contrary to the public interest, should the agent of the Attorney General
consider:

(a) the policies, directives and guidelines of the Attorney General;

(b) the charge or charges that best reflect the gravity of the incident;

(c) the circumstances and attitude of the victim and his/her

entitlement to compensation, reparation or restitution if a
conviction is obtained;

(d) the need to maintain public confidence in the administration of

justice and the effect of the incident/prosecution upon public
order and morale;
 -398-

(e) the availability and efficacy of alternatives to prosecution;

(f) the potential adverse consequences for the

Government of Ontario (or any other level of
government);

(g) the status in life of the accused or the victim?

7. Should the agent of the Attorney General responsible for reviewing the
charge be required to make all reasonable efforts to obtain information
from the police that is necessary to make an informed review?

8. Should there be pre-charge or post-charge screening of charges

prior to the first appearance of the accused? What is the proper
role of the Crown in connection with the laying of criminal
charges?

9. Should the Attorney General require the review of all such charges laid
before the setting of a date for a preliminary hearing or trial? What
type of information should Crown counsel have on hand to enable
him/her to screen charges and what is the proper medium to ensure
consistency in brief preparation (for example by amending Police
Services Act regulations)?

10. Should the Attorney General prohibit the withdrawing of a charge laid
after a date has been set for a preliminary hearing or trial unless there
has been a material change of circumstances in the interim?
 -399-

THE PRINCIPAL ISSUES RELATING

TO RESOLUTION DISCUSSIONS

1. Should the agent of the Attorney General accept a plea of guilty to a

charge where the agent knows that the accused is innocent? Should
Crown counsel accept a plea of guilty where he or she knows that the
prosecution cannot prove a material element of its case (for example
due to an unavailable witness)? Does Crown counsel have a duty to
disclose to the accused or defence counsel that the prosecution is unable
to prove a material element of its case?

2. Should the Attorney General require his agent to contact defence

counsel prior to the setting of a date for preliminary hearing or trial to
discuss any circumstances that may affect the review of the charge laid?
The entry of pleas of guilty? The identification and elimination of
issues so as to ensure the more efficient use of court time?

3. Should the Attorney General require all such agents to consider the
interests of victims and to consult with them prior to concluding any
such discussions?

4. Should the Attorney General require that all such agents while
discussing sentence in such discussions ensure that the Crown's position
adequately reflects the gravity of the incident? Should the Attorney
General be required to consult the victim about such discussions?

5. Should the Attorney General prohibit all of his agents from binding his
discretion to appeal against sentence?

6. Should the Attorney General direct his counsel to afford the accused
special consideration where a plea of guilty is entered to a charge at the
first reasonable opportunity?

7. Is it proper for a Crown Attorney to withhold from the Court any

relevant information in order to facilitate a plea of guilty (for example,
by not advising the Court of a criminal record or by re-writing the facts
on a guilty plea)? What principles should guide Crown and defence
counsel in deciding what facts are placed before a court at the time of
sentencing?

8. Should the Attorney General require his agents to honour all

agreements reached after such discussions even where to do so may
bring the administration of justice into disrepute? Is it proper for a senior
 -400-

Crown Attorney, after having reviewed the course of the discussions, to

give notice to the accused and his counsel of an intention to seek the
permission of the court to prosecute the charge and to otherwise restore
the accused to his/her position prior to the agreement?

9. Should a Crown Attorney be required to state on the record in open

court that discussions have been held and that an agreement has been
reached? Should there be exceptions to such a practice?

10. Excepting a pre-trial conference, is it ever appropriate for an agent of

the Attorney General to attend in the Judge's Chambers to discuss the
case in the presence of defence counsel? If it is, should the Attorney
General require all Crown Attorneys involved in all such attendances as
a general rule to state in open court immediately thereafter the fact that
such a discussion had occurred and the nature of the discussion?

11. Should the trial judge ever discuss the case in Chambers without
the presence of a court reporter or a recording device to record
what was actually said ?

12. Should the trial judge, where a plea of guilty is entered examine
or question the accused to ensure:

(a) that they appreciate the nature and

consequences of a plea of guilty;
(b) that the plea is voluntarily made;
(c) that they understand that an
agreement between the Crown
prosecutor and defence counsel is
does not bind the Court?
 -401-

THE PRINCIPAL ISSUES RELATING TO DISCLOSURE

1. Is the present directive of the Attorney General regarding disclosure

generally adequate? Should the directive of the Attorney General
include a statement of the purpose of disclosure - to maintain the
quality and integrity of the administration of justice in Ontario and, in
particular, to recognize and give effect to the right to a fair trial, the
privacy of witnesses, the desirability of ensuring the more efficient use
of court time and, where appropriate, the resolution of cases through
pleas of guilty? Should the present directive as it relates to disclosure
of the names and addresses of witnesses be re-considered?

2. Is the privacy of witnesses a proper factor to be considered in a

disclosure directive or is it adequately protected by other means,
for example, by a trial judge ruling on a voir dire that the
evidence is irrelevant, by the provisions of s.486 of the Criminal
Code (regarding non-disclosure of the identity of witnesses) or by
the undertakings of counsel not to disclose such information?

3. Should the guiding principle of the existing directive of the Attorney

General be changed from "...all other evidence relevant to the guilt or
innocence of the accused..." to "...all other information arguably relevant
to the guilt or innocence of the accused..." or "to all other information
which might reasonably be helpful to the accused"?

4. Should the directive require disclosure of the criminal records of all

witnesses, whether they be for the Crown or for the defence?

5. Should the notes of the investigating officers be disclosed/withheld? If

so, in what circumstances?

6. Should the Attorney General require disclosure to be made in writing?

Is oral disclosure ever sufficient in the absence of exceptional
circumstances?

7. Should the Attorney General require his/her agents to make reasonable

efforts to review the course of the investigation and to determine the
sufficiency of the brief prepared by the investigator as a disclosure
vehicle?

8. In what circumstances, if ever, is it proper to withhold relevant

evidence? Should the Attorney General facilitate judicial review of the
disclosure made by the local Crown Attorney by requiring as a matter
 -402-

of practice, a letter to defence counsel summarizing the nature of the

information withheld and why it is withheld?

9. Is it proper for the Attorney General to decline to give

appropriate disclosure in a case unless the defence agrees to limit
the preliminary hearing so as to ensure efficient use of court
time?

10. Is it appropriate for the Attorney General to provide disclosure only

where the defence counsel is prepared to give an undertaking not to
give the disclosure materials to the accused? Should the breach of such
undertaking by counsel be a breach of the rules of professional conduct?

11. Should the disclosure provided by the Attorney General depend upon
whether the charge is an offence under the Provincial Offences Act, a
summary conviction offence, or an indictable offence?

12. Should exceptions to the directive of the Attorney General be permitted

only upon the written consent of the Regional Director of Crown
Attorneys/Director of Criminal Prosecutions/Director of the Crown Law
Office-Criminal?

13. Should the Attorney General require the completion of disclosure and
the conduct of resolution discussions before the setting of a date for a
preliminary hearing or trial?

14. Should the Attorney General require of the local Crown Attorney a
record-keeping system that proves the flow of information from the
investigator to him/her, the review of it and the disclosure to the
defence?

15. Should there be a directive to all peace officers in Ontario or an

amendment to the regulations under the appropriate legislation
requiring full disclosure of all information collected during the course
of an investigation to the local Crown Attorney forthwith upon the
laying of a charge whether that information supports the prosecution or
is in favour of the defence? Should there be a similar provision in the
code of professional conduct requiring that Crown counsel disclose to
defence counsel all information which supports the prosecution or is in
favour of the defence? Should there be a duty upon defence counsel to
disclose the nature of their case to Crown counsel?
 -403-

16. Should defence counsel be under an obligation to meet with

Crown counsel before trial to attempt to resolve issues relevant
to the case?

17. Should it be part of the instructions given to all police officers

that they are under a duty to disclose to Crown counsel all
information discovered in the course of an investigation whether
it supports the case for the Crown or is favourable to the
accused, and that it is a serious disciplinary offence to withhold
information because it is favourable to the defence?

18. Should the process of disclosure be expedited? If so, how should

this be done?

19. Can the factors causing unnecessary delays in the criminal justice
system be identified?
 APPENDIX D

GROUPS AND INDIVIDUALS INVITED FOR CONSULTATION

ELECTED BENCHERS

Patricia Peters (Toronto)

Denise Bellamy (Toronto)
Roger Yachetti (Hamilton)
Robert Topp (Sudbury)
Earl Levy (Toronto)
Robert Carter (Toronto)
Paul Copeland (Toronto)
Clay Ruby (Toronto)
Dan Murphy (Goderich)
Colin McKinnon (Ottawa)

DEFENCE COUNSEL (Toronto)

Brian H. Greenspan
Edward L. Greenspan
Marc Rosenberg
Austin Cooper
Alan Gold
Michelle Fuerst
John Rosen
Marlys Edwardh
Michael Code
James Lockyer
William Parker
Jack Gemmell
Doug Hunt
Bob McGee
Charles Roach
Keith Wright
Bruce Durno
Ted Minden
Ian Scott
Morris Manning
 -406-

DEFENCE COUNSEL (Out of Toronto)

Tom Carey (Mississauga)

Don Bayne (Ottawa)
Michael Neville (Ottawa)
Leonard Shore (Ottawa)
Wanda Warren (Brampton)
Terry O’Hara (Kingston)
Gil Labine (Thunder Bay)
Donald Tait (Windsor)
Michael Epstein (London)
Donald Auger (Thunder Bay)
Howard Staats (Brantford)
Michael A. MacDonald (Bracebridge)
Dean Paquette (Hamilton)
Jeff Manishen (Hamilton)
Ted Gibson (Kenora)
Pat Ducharme (Windsor)
Norm Peel (London)
Alan Risen (Oshawa)
Kerry Evans (Barrie)
Alfred Stong (Richmond Hill)
Roderick McLeod (Markham)

ACADEMICS

John Edwards (U of T)
Martin Friedland (U of T)
Don Stuart (Queen’s)
Mr. Kaplan (Ottawa U)
Alan Grant (Osgoode)
Carl Baar (Brock U.)
Diane Martin (Osgoode)
Bruce Archibald (Dalhousie)
Tony Doob (U of T Centre of Criminology)
Philip Stenning (U of T Centre of Criminology)
Larry Wilson (Windsor)
Nick Bala (Queen’s)
Ron Delisle (Queen’s)
Alan Mewett (U of T)
Robert M. Solomon (Western)
 -407-

POLICE

Deputy Chief Bob Peeling (Ontario Association of Chiefs of Police')

4 other members from Deputy Chief Peeling’s office - Brantford

Chief Mai Connolly (Police Association of Ontario)

Neil Jessop; David Griffin; Harvey De Jong & John Hagarty

Ms. Ruth Lovell (Ontario Association of Police Services Board)

Chief Wm, McCormack (Toronto)

Superintendant Ron Dick & Acting Superintendant Leo Campbell

Commissioner Tom O’Gradv (OPP)

Ron Pierce (Deputy Commissioner);
Howard Williams (Chief Superintendant)

Chief Lunnev (Peel)

Jim Wingate (Deputy Chief); Noel Catney (Superintendant) & Tom Allen

Chief of Police Glen Lickers (Six Nations Police)

Ottawa Regional Police

Vince Westwick - Counsel

CROWN COUNSEL (Toronto and area)

Steve Leggett (Downsview)

Frank Armstrong (Toronto)
Paul Culver (Toronto)
Chris McGooey (Toronto)
Peter Griffiths (Etobicoke)
Larry Owen (Newmarket)
Hugh Campbell (Toronto)
Graham Reynolds (Toronto: Department of Justice)
Tara Dier (Newmarket)
Bonnie Wein (Toronto) (Sally Marin on Ms. Wein’s behalf)
Jeff Casey (Toronto)
 -408-

CROWN COUNSEL (Out of Toronto)

Dennis Harrison (Windsor)

Chris Meinhardt (Lindsay)
Richard Cummine (Kenora)
Rupert Ross (Kenora)
Peter Barnes (Toronto)
Terri Regimbal (Haileybury)
Andrejs Berzins (Ottawa)
David Thompson (Cobourg)
Paul Taylor (Brampton)
Norm Douglas (Ottawa)
Bruce Long (London)
Bruce MacFarlane (Ottawa)

JUDICIARY

Chief Justice C.L. Dubin

Chief Justice F. Callaghan
Chief Judge S. Linden

ORGANIZATIONS

Advocates’ Society (Toronto) Terence O’Sullivan

Black Action Defence Committee (Toronto) Dudley Laws
Canadian Police College (Ottawa) Chief Donald J. Fox
Canadian Association of Crown Counsel (Toronto) Paul Culver
Canadian Bar Association (Criminal Justice Section) (Toronto) Michelle Fuerst
Civil Liberties Association (Toronto) Catherine Gilbert
Correctional Services Ontario - Security Division (Kingston) Dan Kane
Criminal Lawyers’ Association (Toronto) Brian Greenspan
Essex County Criminal Lawyers’ Association (Windsor) Sammy S. Vucinic
Hamilton Criminal Lawyers’ Association (Hamilton) Neil R. Jones
Law Union (Toronto) Robert Kellermann
London Criminal Lawyers’ Association (London) Christopher Bentley
NDP Criminal Defence Lawyers’ Caucus (Toronto) Peter Zaduk
Ontario Crown Attorneys’ Association (Toronto) Rick Libman
Ontario Police College (Aylmer) Larry Godfree
OPP Penitentiary Squad (Kingston) Sergeant John Pedersen
Ottawa Criminal Lawyers’ Association (Ottawa) Michael Neville
Registrar of Security Guards & Private Investigators (Tor) Comm. Tom O’Grady
 -409-

VICTIM/WITNESS GROUPS

Advocacy Resource Centre for the Handicapped (Toronto) Harry Beatty

Advocacy Centre for the Elderly (Toronto) Judith Wahl
Alcoholism and Drug Addiction Research Foundation (Toronto) Mark Taylor
Assaulted Women’s Helpline (Toronto) Cathleen Kneen
Association of Iroquois and Allied Indians (London) Harry Doxtator
Barbara Turnbull - Community Representative (Toronto)
Barbara Schlifer Clinic (Toronto) Mary Lou Fassel
Canadian Association for Community Living (North York) Ronald E. Smith
Canadian Association of the Deaf (Ottawa) James Roots
Canadian Council for Native Business (Toronto) Patrick Lavelle
Canadian Hearing Society Foundation (Toronto) Denis Morrice
Canadian Mental Health Association (Toronto) Brian Pollock
Canadian National Institute for the Blind (Toronto) Gary W. Magarrell
Chiefs of Ontario Office Joint Indian Association (Toronto) Andrea Chrisjohn
Criminal Injuries Compensation Board (Toronto) Wendy Calder
Council of Elizabeth Fry Societies of Ontario (Toronto) Elizabeth White
Grand Council Treaty #3 (Kenora) Sonney McGinnis
Institute for Prevention of Child Abuse (Toronto) Patricia Sibbald
London Family Court Clinic (London) Dr. Louise Sas
Metro Action Cttee. on Pub. Violence Agst. Women & Child. (Tor) Susan Vander Voet
Metropolitian Tor. Association for Community Living (Tor.) Mary Anne Welsh
Metropolitan Toronto Special Committee on Child Abuse (Toronto) LeeAnn Lloyd
National Action Committee on the Status of Women (Toronto) Judy Rebick
Native Canadian Centre of Toronto (Toronto) Gayle Mason
Native Child and Family Services of Toronto (Toronto) Kenn Richard
Native Women’s Resource Centre of Toronto (Toronto) Maddy Harper
Nishnawbe Aski Nation (Thunder Bay) Grand Chief Bently Checcho
Ontario Advisory Council on Disability Issues (Toronto) Shirley Van Hoof
Ontario Association of Children’s Aid Societies (Toronto) Mary McConville
Ontario Association for Community Living (Don Mills) Barbara A. Thornber
Ontario Assoc, of Children’s Mental Health Centres (Tor.) Sheila Weinstock
Ontario Association of Family Service Agencies (Toronto) Mariam Mayhew
Ontario Association of Interval and Transition Houses (Toronto) Trudy Don
Ontario Association of the Deaf (Toronto) Henry Whalen
Ontario Association of Professional Social Workers (Tor.) Malcolm J. Stewart
Ontario Association on Developmental Disabilities (Tor.) Nancy Hezler Woods
Ontario Coalition of Rape Crisis Centres (Peterborough) Pauline Duffett
Ontario Coalition of Visible Minority Women (Toronto) Elaine Prescod
Ontario Federation of Indian Friendships Centres (Toronto) Sylvia Miracle
Ontario Medical Association (Toronto) Peter Fraser
Ontario Mental Health Foundation (Toronto) Dugal Campbell
Ontario Metis & Aboriginal Association (Sault Ste. Marie) Mr. Olaf Bjornaa
 -410-

Ontario Native Council on Justice (Toronto) Carol Montagnes

Ontario Native Women’s Association (Thunder Bay) Marlene Pierre
Ontario Psychological Association (Toronto) Dr. Ruth Berman
Ontario Society for Autistic Citizens (Willowdade) Ms. Simmie Rain
P.R.I.D.E. (Mississauga) John Bates
Patients Rights Association (Toronto) Anne Coy
S.C.A.N. (Toronto) Dr. Marcellina Mian
Sioux Lookout Community Legal Clinic (Sioux Lookout) Paul Melvin
Six Nations Band Council (Ohsweken) Chief William Montour
Union of Ontario Indians (Toronto) Joe Miskokomon
Victim/Witness Programme Assistance (Etobicoke) Penny Leach
Victim/Witness Programme Assistance (Hamilton) Carol Salmon
Victim/Witness Programme Assistance (Kenora) Jackie Cowan
Victim/Witness Programme Assistance (Kingston) Janet Lee
Victim/Witness Programme Assistance (London) Ruth Moyle
Victim/Witness Programme Assistance (Newmarket) Coordinator
Victim/Witness Programme Assistance (Scarborough) Susan Physick
Victim/Witness Programme Assistance (Ottawa) Ms. Cosette Chafe
Victim/Witness Programme Assistance (Pembroke) Marlene Thompson
Victim/Witness Programme Assistance (Sudbury) Liana Charbonneau
Victim/Witness Programme Assistance (Toronto) Susan Lee
Victim/Witness Programme Assistance (Windsor) Lynn Kainz
Victims of Violence National Inc. (Brampton) Carole Cameron

UNITED STATES

National Association of Criminal Defence Lawyers (Washington, DC) Jeff Weiner

National District Attorneys Association (Alexandria, Virginia) Jack Yelverton

OUT OF PROVINCE CROWN COUNSEL

Michel Bouchard (Ste. Foy, Quebec)

William F. Stewart (Victoria, B.C)
Paul M. LeBreton (Fredericton, N.B.)

N. McCrank (Edmonton, Alberta)

Mr. Graeme Garson (Winnipeg, Manitoba)
William MacDonald (Halifax, Nova Scotia)
Arthur J. Currie (Charlottetown, P.E.I.)
Ron Hewitt (Regina, Saskatchewan)
Lynn E. Spracklin (St. John’s, Nfld.)
Goeffrey Bickert (Yellownife, North West Territories)
Lorenne Clark (Whitehorse, Yukon Territories)
 -411-

OUT OF PROVINCE POLICE

Chief Gerry Laughy (Port Moody, B.C.)

Chief David Sherwood (Saint John, N.B.)
Directeur Jean March-Aurelle (Chomedey, Quebec)

Chief Gus MacKenzie (Bedford, N.S.)

Chief D.S. Webster (Charlottetown, N.S.)
Chief D.J. Crowell (Kentville, N.S.)
Chief P. Scott (Brandon, Manitoba)
Chief E.H. Swayze (Regina, Sask.)
Chief Doug McMally (Edmonton, Alberta)

OUT OF PROVINCE DEFENCE COUNSEL

Richard Peck (Vancouver, B.C.)

Richard Shadley (Montreal, Quebec)
David Lutz (Hampton, N.B.)

Joel E. Pink (Halifax, N.S.)

John K. Mitchell (Charlottetown, P.E.I.)
Hersh Wolsh (Winnipeg, Manitoba)
Brian Beresh (Edmonton, Alberta)
Silas Halyk (Saskatoon, Sask.)
David C. Day (St. Johns, Nfld.)
 APPENDIX E

ADVISORY COMMITTEE TO THE ATTORNEY GENERAL

WRITTEN SUBMISSIONS RECEIVED

ELECTED BENCHERS
Clayton Ruby
Patricia J. Peters, Q.C - and attached memo from Mr. Berzins to Judge Lennox

DEFENCE COUNSEL
Michael Code
Wanda L. Warren
Charles C. Roach
John Rosen
David M. Lutz - New Brunswick
Richard E. Shadley - Montreal, Quebec
Jack Gemmell
Richard C.C. Peck, Q.C. - Vancouver

CROWN COUNSEL
Policy Manual - Private Prosecutions - New Brunswick
Policy Manual - Quality Control (Charge Approval) - New Brunswick
Rupert Ross
Tara Dier
P.W. Culver
Assistant Deputy Attorney General Of Canada - Bruce A. MacFarlane, Q.C. - Ottawa
Deputy Attorney General - Paul M. LeBreton, Q.C. - New Brunswick
Peter Barnes
Terri Regimbal
Andrejs Berzins
Deputy Attorney General - Graeme Garson, Q.C. - Manitoba
Larry H. Owen
Brian Barrington-Foote, Q.C. - Saskatchewan
John C. Pearson - Director of Public Prosecutions - Nova Scotia
Michael B. Hicks - Deputy Regional Crown Counsel - British Columbia
Michael Allen, Q.C. - Assistant Deputy Minister - Edmonton, Alberta
Colin J. Flynn - Director of Public Presecutions - Newfoundland
Paul Monty - Acting Chief Deputy Attorney General - Sainte-Foy, Quebec

POLICE
Peel Regional Police Force
Ontario Association of Chiefs of Police
Ontario Provincial Police
Metropolitan Toronto Police - Ron Dick
 - 414 -

Chiefs of Police - Saskatchewan - E.H. Swayze

Metropolitan Toronto Police - submission from Leo Campbell
B.G. Scott - Chief of Police - Brandon City Police, Manitoba
Edmonton Police Service - Mark Logar - Legal Advisor
Ottawa Police - Vincent Westwick - General Counsel

ACADEMICS
University of Toronto - Professor Alan W. Mewett, Q.C.
University of Ottawa - William Kaplan
Queen's University - Professor R.J. Delisle
Queen's University - Professor Don Stuart
University of Toronto - Professor John LI. J. Edwards

GROUPS AND ORGANIZATIONS

Ontario Police College - M. van Weert
The Canadian Association of the Deaf - James D. Roots
The Ontario Mental Health Foundation
Criminal Lawyers' Association - William M. Trudell
Victim/Witness - Susan Lee & Chris McGoey
The Hospital for Sick Children - Dr. Marcellina Mian
Institute for the Prevention of Child Abuse - Director - Patricia Sibbald
Canadian Bar Association - Linda Adlam Manning
Hamilton Criminal Lawyers' Association - Richard E. Jennis
Canadian Association for Community Living - Ronald E. Smith - President
Ministry of Correctional Services - Dianne Dougall - Counsel
The Metropolitan Toronto Special Committee on Child Abuse - LeeAnne Lloyd
Council of Elizabeth Fry Societies of Ontario
Ontario Ministry of Environment - Legal Services Branch

JUDGES
Honourable C.R. Merredew
Judge C. Emerson Perkins
Judge R.D. Clarke
Justice Spiro Loukedelis, General Division, Northeast Region
Senior Regional Judge G.E. Michel, Provincial Division, Northeast Region
Justice S.R. Kurisko
 - 415 -

ADVISORY COMMITTEE TO THE ATTORNEY GENERAL

LETTERS RECEIVED

DEFENCE COUNSEL
Edward L. Greenspan, Q.C.
Michael A. MacDonald
William J. Parker, Q.C.
James Lockyer
Donald B. Bayne
Robert C. Topp
Silas E. Halyk, Q.C.
Brian A. Beresh
Thomas J.P. Carey

CROWN COUNSEL
Frank E. Armstrong, Q.C.
Neil McCrank, Q.C. - Deputy Attorney General - Alberta
Lorenne M.G. Clark - Deputy Minister - Yukon
P.W. Culver - Crown Attorney

GROUPS AND ORGANIZATIONS

Alan Ellis - National Association of Criminal Defense Lawyers
James S. Deitch - The Law Union of Ontario
Martin van Weert - Ontario Police College
Dan Kane - The Correctional Service of Canada
Cathleen Kneen - Assaulted Women's Help Line
Carol Roup - Canadian Mental Health Association
Mark Taylor - Addiction Research Foundation
 APPENDIX F

GROUPS AND INDIVIDUALS INVITED FOR CONSULTATION - BY LOCATION

ALYMER
Organization
Ontario Police College - Larry Godfree

BARRIE
Defence Counsel
Kerry Evans

BRACEBRIDGE
Defence Counsel
Michael A. MacDonald

BRAMPTON
Defence Counsel
Wanda Warren

Police
Chief Lunney (Peel)
Jim Wingate (Deputy Chief); Noel Catney (Superintendant) & Tom Allen

Crown Counsel
Paul Taylor

Victim/Witness
Victims of Violence National Inc. - Carole Cameron

BRANTFORD
Defence Counsel
Howard Staats

Police
Deputy Chief Bob Peeling (Ontario Association of Chiefs of Police)
- 4 other members from Deputy Chief Peeling's office - Brantford
 -418-

COBQURG

Crown Counsel
David Thompson

DON MILLS

Victim/Witness
Ontario Association for Community Living - Barbara A. Thornber

DOWNSVIEW
Crown Counsel
Steve Leggett

ETOBICOKE
Crown Counsel
Peter Griffiths

Victim/Witness
Victim/Witness Programme Assistance - Penny Leach

GODERICH
Elected Bencher
Dan Murphy

HAILEYBURY
Crown Counsel
Terri Regimbal

HAMILTON
Elected Bencher
Roger Yachetti

Defence Counsel
Dean Paquette
Jeff Manishen

Organization
Hamilton Criminal Lawyers' Association - Neil R. Jones
 -419-

Victim/Witness
Victim/Witness Programme Assistance - Carol Salmon

KENORA
Defence Counsel
Ted Gibson

Crown Counsel
Richard Cummine
Rupert Ross

Victim/Witness
Grand Council Treaty #3 - Sonney McGinnis
Victim/Witness Programme Assistance - Jackie Cowan

KINGSTON
Defence Counsel
Terry O'Hara

Academics

Don Stuart - Queen's

Nick Bala - Queen's
Ron Delisle - Queen's

Organizations
Correctional Services Ontario - Security Division - Dan Cane
OPP Penitentiary Squad - Sergeant John Pedersen

Victim/Witness
Victim/Witness Programme Assistance - Janet Lee

LINDSAY
Crown Counsel
Chris Meinhardt

LONDON
Committee Member
Fletcher Dawson - Defence Counsel
 -420-

Defence Counsel
Norm Peel
Michael Epstein

Crown Counsel
Bruce Long

Organization
London Criminal Lawyers' Association - Christopher Bentley

Victim/Witness
Association of Iroquois and Allied Indians - Harry Doxtator
London Family Court Clinic - Dr. Louise Sas
Victim/Witness Programme Assistance - Ruth Moyle

Academic
Professor Robert M. Solomon - Western

MARKHAM
Defence Counsel
Roderick McLeod

MISSISSAUGA
Defence Counsel
Tom Carey

Police
Chief Mai Connolly (Police Association of Ontario)
Neil Jessop; David Griffin; Harvey De Jong & John Hagarty

Victim/Witness
P.R.I.D.E. - John Bates

NEWMARKET
Crown Counsel
Larry Owen
Tara Dier

Victim/Witness
Victim/Witness Programme Assistance - Coordinator
 -421-

NORTH YORK
Victim/Witness
Canadian Association for Community Living - Ronald E. Smith

OHSWEKEN. ONTARIO
Police
Chief of Police Glen Lickers (Six Nations Police)
- No one available

Victim/Witness
Six Nations Band Council - Chief William Montour

OSHAWA
Defence Counsel
Alan Risen

OTTAWA
Elected Bencher
Colin McKinnon

Defence Counsel
Don Bayne
Michael Neville
Leonard Shore

Academic
Professor Kaplan (Ottawa U)

Crown Counsel
Andrejs Berzins
Norm Douglas
Bruce MacFarlane

Organizations
Canadian Police College - Chief Donald J. Fox
Ottawa Criminal Lawyers' Association - Michael Neville

Victim/Witness
Canadian Association of the Deaf - James Roots
Victim/Witness Programme Assistance - Ms. Cosette Chafe
 -422-

OWEN SOUND
Police
Ms. Ruth Lovell (Ontario Association of Police Services Board)

PETEBROROUGH
Victim/Witness
Ontario Coalition of Rape Crisis Centres - Pauline Duffett

PEMBROKE
Victim/Witness
Victim/Witness Programme Assistance - Marlene Thompson

RICHMOND HILL

Defence Counsel
Alfred Stong

SAULT STE. MARIE

Victim/Witness
Ontario Metis & Aboriginal Association - Mr. Olaf Bjornaa

SCARBOROUGH
Committee Member
Mary Hall - Crown Counsel

Victim/Witness
Victim/Witness Programme Assistance - Susan Physick

SIOUX
LOOKOUT. ONTARIO
Victim/Witness
Sioux Lookout Community Legal Clinic - Paul Melvin

ST. CATHERINES
Academic
Carl Baar - Brock U.
 -423-

SUDBURY
Elected Bencher
Robert Topp

Victim/Witness
Victim/Witness Programme Assistance - Liana Charbonneau

THUNDER BAY

Committee Members
Lee Baig Defence Counsel
Dan Mitchell Crown Counsel

Defence Counsel
Donald Auger
Gil Labine

Victim/Witness
Nishnawbe Aski Nation - Grand Chief Bently Checcho
Ontario Native Women's Association - Marlene Pierre

TORONTO

Committee Members
Chair Arthur Martin Chair
Jane Arnup Committee Secretary
David Butt Committee Researcher
Brian Trafford Director, Criminal Prosecution
David McCombs Defence Counsel
Casey Hill Crown Counsel
Beverly Ward Correctional Services
Julian Fantino Police Superintendant
Joe De Filippis Crown (Department of Justice)
Wayne Frechette Police Superintendant
Katherine McLeod Defence Counsel

Elected Benchers
Patricia Peters
Denise Bellamy
Earl Levy
 -424-

Robert Carter
Paul Copeland
Clay Ruby

Defence Counsel
Brian H. Greenspan
Edward L. Greenspan
Marc Rosenberg
Austin Cooper
Alan Gold
Michelle Fuerst
John Rosen
Marlys Edwardh
Michael Code
James Lockyer
William Parker
Jack Gemmell
Doug Hunt
Bob McGee
Charles Roach
Keith Wright
Bruce Durno
Ted Minden
lan Scott
Morris Manning

Academics
John Edwards - U of T
Martin Friedland - U of T
Alan Mewett - U of T
Tony Doob - U of T Centre of Criminology
Philip Stenning - U of T Centre of Criminology
Alan Grant - Osgoode
Diane Martin - Osgoode

Police
Chief Wm. McCormack
Superintendant Ron Dick & Acting Superintendant Leo Campbell

Tom O'Grady - Commissioner (OPP)

Ron Pierce - Deputy Commissioner
Howard Williams - Chief Superintendant
 -425-

Crown Counsel
Frank Armstrong
Paul Culver
Chris McGooey
Hugh Campbell
Graham Reynolds (Department of Justice)
Sally Marin
Jeff Casey
Peter Barnes

Judiciary
Chief Justice C.L. Dubin
Chief Justice F. Callaghan
Chief Judge S. Linden

Organizations
Advocates' Society - Terence O'Sullivan
Black Action Defence Committee - Dudley Laws
Canadian Association of Crown Counsel - Paul Culver
Canadian Bar Association (Criminal Justice Section) - Michelle Fuerst
Civil Liberties Association - Alan Borovoy
Criminal Lawyers' Association - Brian Greenspan
Law Union - Robert Kellermann
NDP Criminal Defence Lawyers' Caucus
Ontario Crown Attorneys' Association - Casey Hill
Registrar of Security Guards & Private Investigators Comm. Tom O'Grady

Victim/Witness
Advocacy Resource Centre for the Handicapped - Harry Beatty
Advocacy Centre for the Elderly - Judith Wahl
Alcoholism and Drug Addiction Research Foundation - Mark Taylor
Assaulted Women's Helpline - Cathleen Kneen
Barbara Schilifer Clinic - Mary Lou Fassel
Barbara Turnbull - Community Representative
Canadian Council for Native Business - Patrick Lavelle
Canadian Hearing Society Foundation - Denis Morrice
Canadian Mental Health Association - Brian Pollock
Canadian National Institute for the Blind - Gary W. Magarrell
Chiefs of Ontario Office Joint Indian Association - Andrea Chrisjohn
Criminal Injuries Compensation Board - Wendy Calder
 -426-

Community Centre - Chris Phibbs

Council of Elizabeth Fry Societies of Ontario - Elizabeth White
Institute for Prevention of Child Abuse - Patricia Sibbald
Metro Action Committee on Public Violence Against Women and Children - Susan
Vander Voet
Metropolitian Toronto Association for Community Living - Mary Anne Welsh
National Action Committee on the Status of Women - Judy Rebick
Native Canadian Centre of Toronto - Gayle Mason
Native Child and Family Services of Toronto - Kenn Richard
Native Women's Resource Centre of Toronto - Maddy Harper
Ontario Advisory Council on Disability Issues - Shirley Van Hoof
Ontario Association of Children's Aid Societies - Mary McConville
Ontario Association of Children's Mental Health Centres - Shelia Weinstock
Ontario Association of Family Service Agencies - Mariam Mayhew
Ontario Association of Interval and Transition Houses - Trudy Don
Ontario Association of the Deaf - Henry Whalen
Ontario Association of Professional Social Workers - Malcolm J. Stewart
Ontario Association on Developmental Disabilities - Nancy Hezler Woods
Ontario Coalition of Visible Minority Women - Elaine Prescod
Ontario Federation of Indian Friendships Centres - Sylvia Miracle
Ontario Medical Association - Peter Fraser
Ontario Mental Health Foundation - Dugal Campbell
Ontario Native Council on Justice - Carol Montagnes
Ontario Psychological Association - Dr. Ruth Berman
Patients Rights Association - Anne Coy
S.C.A.N. - Dr. Marcellina Mian
Special Committee on Child Abuse - Sylvia Pivko
Union of Ontario Indians - Joe Miskokomon
Victim/Witness Programme Assistance - Susan Lee

WILLOWDALE
Victim/Witness
Ontario Society for Autistic Citizens - Ms. Simmie Rain

WINDSOR
Committee Member
Alfred Oakely - Police Sergeant

Defence Counsel
Pat Ducharme
Donald Tait
 -427-

Academic
Larry Wilson

Crown Counsel
Dennis Harrison

Organization
Essex County Criminal Lawyers' Association - Sammy S. Vucinic

Victim/Witness
Victim/Witness Programme Assistance - Lynn Kainz

OUT OF PROVINCE

ALBERTA
Crown Counsel
N. McCrank

Police
Chief Doug McMally

Defence Counsel
Brian Beresh

BRITISH COLUMBIA
Crown Counsel
William F. Stewart

Police - Association of Chiefs of Police - Written Comments

Chief Gerry Laughy

Defence Counsel
Richard Peck

MANITOBA
Crown Counsel
Mr. Graeme Garson
 -428-

Police
Chief P. Scott

Defence Counsel
Hersh Wolsh

NEW BRUNSWICK

Crown Counsel
Paul M. LeBreton

Police
Chief David Sherwood

Defence Counsel
David Lutz

NEWFOUNDLAND
Crown Counsel
Lynn E. Spracklin

Defence Counsel
David C. Day

NORTH WEST TERRITORIES

Crown Counsel
Goeffrey Bickert

NOVA SCOTIA
Academics
Bruce Archibald - (Dalhousie)

Crown Counsel
William MacDonald

Police
Chief Gus MacKenzie
Chief D.S. Webster
Chief D.J. Crowell
 -429-

Defence Counsel
Joel E. Pink

PRINCE EDWARD ISLAND

Crown Counsel
Arthur J. Currie

Defence Counsel
John K. Mitchell

QUEBEC
Crown Counsel
Michel Bouchard

Police
Directeur Jean March-Aurelle

Defence Counsel
Richard Shadley

SASKATCHEWAN

Crown Counsel
Ron Hewitt

Police
Chief E.H. Swayze

Defence Counsel
Silas Halyk

YUKON TERRITORIES

Crown Counsel
Lorenne Clark

UNITED STATES

National Association of Criminal Defence Lawyers (Washington, DC) Jeff Weiner

National District Attorneys Association (Alexandria, Virginia) Jack Yelverton
 APPENDIX G

INDIVIDUALS WHO PRESENTED ORAL SUBMISSIONS TO THE COMMITTEE

ELECTED BENCHERS

Patricia Peters (Toronto)

Denise Bellamy (Toronto)
Robert Topp (Sudbury)
Earl Levy (Toronto)
Robert Carter (Toronto)
Paul Copeland (Toronto)
Clay Ruby (Toronto)
Dan Murphy (Goderich)

DEFENCE COUNSEL (Toronto)

Brian H. Greenspan
Marc Rosenberg
Austin Cooper
Alan Gold
Michelle Fuerst
John Rosen
Marlys Edwardh
Michael Code
James Lockyer
William Parker
Jack Gemmell
Bob McGee
Keith Wright
Bruce Durno
Ted Minden

DEFENCE COUNSEL (Out of Toronto)

Tom Carey (Mississauga)

Don Bayne (Ottawa)
Michael Neville (Ottawa)
Wanda Warren (Brampton)
Terry O'Hara (Kingston)
Gil Labine (Thunder Bay)
Michael Epstein (London)
Michael A. MacDonald (Bracebridge)
Dean Paquette (Hamilton)
 -432-

Jeff Manishen (Hamilton)

Ted Gibson (Kenora)
Pat Ducharme (Windsor)
Alan Risen (Oshawa)
Alfred Stong (Richmond Hill)

POLICE

Deputy Chief Bob Peeling (Ontario Association of Chiefs of Police)

- 4 members from Deputy Chief Peeling's office - Brantford

Chief Mai Connolly (Police Association of Ontario)

- Neil Jessop; David Griffin; Harvey De Jong & John Hagarty

Mr. Justice Ward Allen (Ontario Association of Police Services Board)

Chief Wm. McCormack (Toronto)

- Superintendant Ron Dick & Acting Superintendant Leo Campbell

Commissioner Tom O'Gradv (OPP)

Ron Pierce (Deputy Commissioner)
Howard Williams (Chief Superintendant)

Chief Lunnev (Peel)

- Jim Wingate (Deputy Chief); Noel Catney (Superintendant) &
Tom Allen

CROWN COUNSEL (Toronto and area)

Steve Leggett (Downsview)

Frank Armstrong (Toronto)
Paul Culver (Toronto)
Chris McGoey (Toronto)
Peter Griffiths (Etobicoke)
Larry Owen (Newmarket)
Hugh Campbell (Toronto)
Graham Reynolds (Toronto)
Tara Dier (Newmarket)
Sally Marin (Toronto)
Jeff Casey (Toronto)
 -433-

CROWN COUNSEL (Out of Toronto)

Dennis Harrison (Windsor)

Chris Meinhardt (Lindsay)
Richard Cummine (Kenora)
Rupert Ross (Kenora)
Peter Barnes (Toronto)
Terri Regimbal (Haileybury)
Andrejs Berzins (Ottawa)
David Thompson (Cobourg)
Paul Taylor (Brampton)
Bruce Long (London)

ORGANIZATIONS

Advocates' Society (Toronto) Terence O'Sullivan

Black Action Defence Committee (Toronto) Mr. Mead
Canadian Bar Association (Criminal Justice Section) (Toronto) Michelle Fuerst
Civil Liberties Association (Toronto) Alan Borovoy
Criminal Lawyers' Association (Toronto) Brian Greenspan
Criminal Injuries Compensation Board - David Lepofsky
London Criminal Lawyers' Association (London) Christopher Bentley
Ontario Crown Attorneys' Association (Toronto) Rick Libman
Ontario Police College (Alymer) Mr. van Weert
Ottawa Regional Police - Counsel - Vince Westwick
 APPENDIX H

THE PRINCIPAL ISSUES RELATING TO THE

SCREENING OF CRIMINAL CHARGES

Revisions for the Consultations with the Judiciary

Should an agent for the Attorney General review a charge laid for the
purposes of determining whether or not it is in the best interests of the
administration of justice to prosecute it?

In your experience, to what extent do the criminal charges laid by the

police conform to what the evidence ultimately reveals? How often do
you encounter what you perceive on the evidence to be excessive
charges laid or as it is sometimes called "overcharging"? How often do
you encounter what you perceive to be lesser and inappropriate charges
laid? How often do you see charges before you that ought never to be
laid? Do you think that any of these difficulties, to the extent you have
observed them, could be reduced or eliminated by having an agent of
the Attorney General review the charges laid?

Should any review of a charge by an agent of the Attorney General

include an assessment of the probative value of the evidence, including
the credibility of witnesses?

Should any review of a charge by an agent of the Attorney General

include a determination of the admissibility of evidence made available
by the investigator?

Should any review of a charge by an agent of the Attorney General

include consideration of defences and remedies that might be available
to an accused?

Assuming a charge is reviewed by an agent of the Attorney

General should it be before the first court appearance? Based
on your experience, does the case move more swiftly if there has
been a review prior to the first appearance? Is a review of the
charge before the first court appearance practicable?

(a) Should the Attorney General require the review of all charges
laid before the setting of a date for a preliminary hearing or
trial? Based on your experience what in your view would be the
effect of a review prior to setting a date for trial or preliminary
hearing on subsequent court appearances?
 -436-

(b) What role should the Crown Attorney play in the review of the
charge to ensure that any subsequent prosecution proceeds fairly
and expeditiously?

7. What types of information should the Crown have to enable him

or her to screen charges? What is the proper medium to ensure
consistency in brief preparation (for example, should there be
more instruction as part of a police officer's training or a
regulation under the Police Services Act?)

8. In your experience are the communications between the Crown Attorney

and the police comprehensive and effective? Does poor communication
occur frequently? In what way does the lack of communication, if it
occurs, affect the criminal trial process? What changes, if any, would
you recommend?

9. Have you noticed any failure of communication between the Crown

counsel and defence counsel that has adversely affected the criminal
trial process? Does this type of poor communication occur frequently?
In what way does this lack of communication, if any, affect the trial
process? What changes, if any, would you recommend?

10. Should the Attorney General prohibit the withdrawing of a charge laid
after a date has been set for a preliminary hearing or trial unless there
has been a material change of circumstances in the interim?
 -437-

THE PRINCIPAL ISSUES RELATING

TO RESOLUTION DISCUSSIONS

Revisions for the Consultations with the Judiciary

1. In R. v. Phillipson (1990), 91 Cr.App.R 226 Gibson L.J., said at

p. 235: "Further we would add, where the evidence is of great
force, the proper disclosing of it may cause the accused to plead
guilty to the advantage of both the administration of justice and
of the accused"

In your experience does Crown disclosure as it is currently practised

facilitate guilty pleas where appropriate?

2. In your experience does Crown disclosure facilitate the

withdrawing of charges or proceeding on a lesser included
offense where appropriate? Have disclosure practices ever in
your experience contributed to proceeding on a charge that could
not be proven and should not have been proceeded with due to
an obvious insufficiency of the evidence, the trivial nature of the
allegations or other matters that are properly considered? If so,
how? is this in your experience a frequent occurrence?

3. In your view what impact would the following have on the conduct of
criminal proceedings before you?

(a) A mandatory requirement that the agent for the Attorney

General contact defence counsel prior to the setting of a date for
a preliminary hearing or trial to discuss any circumstances that
may affect a review of the charge laid.

(b) A mandatory requirement that the agent for the Attorney

General contact defence counsel prior to the setting of a date for
a preliminary hearing or trial to discuss any circumstances that
may affect the entry of a plea of guilty to the charge or a lesser
included offence where appropriate.

(c) A mandatory requirement that the agent for the Attorney

General contact defence counsel prior to the setting of a date for
a preliminary hearing or trial to discuss any circumstances that
may affect the identification and elimination of issues.
 -438-

(d) Have the mandatory requirements under s. 625.1(2) of a pre-trial

conference where a case is being tried by a jury been valuable in
identifying the issues, obtaining admissions with respect to
matters not in dispute and in promoting a fair and expeditious
hearing?

(e) Where a case is not being tried with a jury, s. 625.1(1) requires
the consent of the prosecutor and the accused to a pre-trial
conference. Should the Committee recommend a change in the
Code empowering the judge to order a pre-trial hearing where
the case is being tried by a judge where he or she considers that
a pre-trial conference would be of assistance to consider such
matters as would promote a fair and expeditious hearing?

4. Are there any offences for which the Attorney General should require
all Crown counsel to consider the interests of victims and to consult with
them prior to concluding any plea discussions?

5. Should the Attorney General require that all Crown counsel while
discussing sentence in plea discussions ensure that the Crown's position
adequately reflects the gravity of the incident? Should the agent of the
Attorney General be required to consult the victim about such
discussions?

6. Should the Attorney General direct his counsel to afford the accused
special consideration where a plea of guilty is entered to a charge at the
first reasonable opportunity?

7. Is it proper for a Crown Attorney not to divulge to the Court any

information contained in the Crown Brief in order to facilitate a plea of
guilty (for example, by not advising the court of a criminal record, by re¬
writing the facts on a guilty plea)? What principles should defence and
Crown counsel apply in determining what facts are placed before the
court at the time of sentence?

8. Do the current practices of Crown counsel reading in facts following

guilty pleas satisfactorily facilitate findings of guilty to the charge to
which an accused has pleaded? Is the information you receive from
facts being read in generally sufficient to dispose of the case in a just
and appropriate way? If not, how frequently is the information provided
unsatisfactory, and why in your view is it unsatisfactory?

9. Should a Crown Attorney be required to state on the record in open

court that discussions have been held and that an agreement has been
 -439-

reached between counsel where this has occurred? Should there be

exceptions to such a practice?

10. Excepting a pre-trial conference, is it ever appropriate save in

exceptional circumstances for an agent of the Attorney General to
attend in the Judge's Chambers to discuss the case in the presence of
defence counsel? If it is, should the Attorney General require all
Crown Attorneys involved in such attendances, as a general rule, to state
in open court immediately thereafter the fact that such a discussion had
occurred and the nature of the discussion?

11. Should the trial judge ever discuss the case in Chambers without
the presence of a court reporter or a recording device to record
what was actually said ?

12. In your experience presiding over guilty pleas, how frequently do you
have concerns that an accused person:

(a) does not appreciate the nature and consequences of a plea of

guilty;

(b) is not entering into the plea voluntarily; or

(c) does not understand that an agreement between Crown and

defence counsel does not bind the Court?
 -440-

THE PRINCIPAL ISSUES RELATING TO DISCLOSURE

Revisions for Consultations with the Judiciary

1. In your experience how effectively does the present policy of the

Attorney General with respect to disclosure contribute to the fair, just,
and expeditious resolution of criminal charges?

2. How frequently do you observe in proceedings before you that there has
been non-disclosure to protect the privacy of a witness, e.g. his or her
safety, or to protect the witness from harassment? tampering with their
evidence? What impact does this non-disclosure have on the
proceedings? In your experience has such non-disclosure frequently
been necessary? unnecessary?

3. Have you had occasion to observe criminal proceedings adversely

affected by disclosure that was not sufficiently extensive? If so, how
frequently? And in what circumstances?

4. Have you observed any significant difference in the conduct of a

prosecution, that turns on the availability to the defence of an officer's
notebook?

5. Have you ever observed difficulties in criminal proceedings attributable

to the form in which disclosure has been made, for example orally
instead of in writing? If so what sort of difficulties were caused?

6. In cases, if any, where you have observed insufficient disclosure, to what

extent did the insufficiency of the disclosure appear to be attributable
to the actions of the agent of the Attorney General? the actions of the
investigative officers? both? the action or inaction of defence counsel?

7. Have you ever had occasion to observe disclosure granted to defence

counsel conditionally, for example on the condition that it not be shared
with either the public at large, or the accused person, or that it be
granted on the condition that the preliminary inquiry be limited? What
effect did this form of conditional disclosure have on the proceedings in
issue?

8. Have you had occasion to observe any significant differences in the

conduct of criminal proceedings when defence counsel either has or has
not disclosed aspects of its defence (for example experts' reports) to the
Crown in advance? If so, what were the differences?
 -441-

9. Have you had occasion to observe any significant differences in the

conduct of criminal proceedings attributable to out of court meetings
between Crown and defence counsel?

10. Have you had occasion to observe differing degrees of disclosure

depending on the nature of the charge (Provincial Offences Act,
summary conviction, or indictable)? If so, how has the difference
affected the nature of the proceedings?

11. In your experience what are the prevailing general practices with respect
to the timing of disclosure? To what extent do the current practices
with respect to the timing of disclosure either assist or hinder the fair,
just, and expeditious resolution of criminal proceedings?

12. Should the Attorney General require of the local Crown Attorney a
record-keeping system that proves the flow of information from the
investigator to him/her, the review of it and the disclosure to the
defence?

13. Have you observed faulty disclosure? What was the impact of such
faulty disclosure on the conduct of the proceedings? Were there
adequate procedural avenues open to grant appropriate remedies?

14. Have you had occasion to observe the conduct of criminal proceedings
adversely affected by delays in disclosure? If so, how frequently? Are
prevalent causes for any delayed disclosure apparent to you? How in
your experience might disclosure be expedited?

15. Should the Judge inquire whether satisfactory disclosure has been
provided?
 APPENDIX I

STUDY OF COST OF DISCLOSURE

I BASIC CONCEPT. . 444

II SUPPLEMENTAL DISCLOSURE . 444

III MULTIPLE ACCUSED . 444

IV EXAMPLES OF COST. 445

V SUGGESTED GUIDELINES. 449

VI CONCLUSION. 450

VII FIGURE #1 (MUN PDS SELECTED OFFENSES) . 452

VIII FIGURE #2 (MUN PDS AVERAGE SIZE OF PACKAGE) . 453

IX FIGURE #3 (PROJECTED RATES/COSTS - FRAUD) . 454

X FIGURE #4 (PROJECTED RATES/COSTS - B&E) . 455

XI FIGURE #5 (PROJECTED RATES/COSTS - ASSAULT). 456

XII FIGURE #6 (PROJECTED RATES/COSTS - ROBBERY). 457

XIII FIGURE #7 (PROJECTED RATES/COSTS -

SEXUAL ASSAULT). 458

XIV FIGURE #8 (PROJECTED RATES/COSTS -

TRAFFICKING DRUGS) . 459

XV FIGURE #9 (TOTAL PROJECTED RATES/COSTS -

CRIMINAL CODE, FEDERAL &
PROVINCIAL OFFENSES). 460
 -444-

STUDY OF THE COST OF DISCLOSURE

This study has examined the cost of disclosure from a variety of viewpoints in order to
ensure a fuller understanding of the issue. These viewpoints include:

1) the basic concept;

2) supplemental disclosure;
3) multiple accused;
4) examples of cost; and,
5) suggested guidelines

BASIC CONCEPT

The cost of disclosure shall be shared between the Attorney General and the Police.
It has been determined that the Police shall provide the Crown with an original and one (1)
copy of the required court brief/disclosure package (hereafter referred to as the package).
The copy is intended as a means of disclosure to defence counsel. The cost of the original
package shall be the responsibility of the Police. The "material" cost of the copy will be the
responsibility of the Crown and shall be charged back to them by the Police. The cost of
any further copies shall be borne by the Crown.

SUPPLEMENTAL DISCLOSURE

It is recognized that the duty of disclosure is an ongoing one. Whenever additional

disclosure is requested by the Crown in order to supplement the package already provided
to defence counsel the cost shall be shared between the Attorney General and the Police
as per the basic concept.

However, should defence counsel demand further disclosure of materials then the cost
of complying with their request may require an expanded cost concept. If the materials
requested are not sufficiently specified, thereby suggesting that defence counsel are merely
engaged in a "Give me everything" approach, then perhaps cost should be calculated on the
basis of material and labour costs or on a basis determined by the courts.

MULTIPLE ACCUSED

In the joint-prosecution of multiple accused who are individually represented disclosure

can be complicated. It is my submission that the Police cannot produce packages "tailor-
made" for each accused. Such "tailor-made" packages would require the Police to decide
issues of relevancy which are not their responsibility.
 -445-

In order to make disclosure in such cases the Police shall prepare a package
incorporating information pertaining to all accused. They shall then provide an original and
one (1) copy to the Crown as per the basic cost concept. Then, if the Crown (who is in a
better position to decide issues of relevancy) chooses to create "tailor-made" packages, they
may do so at their own cost.

EXAMPLES OF COST

a. In order to provide examples of the cost of disclosure package five common Criminal
Code offenses were chosen in order to provide a sampling of the types of charges routinely
laid in Ontario. These five offenses were Fraud (cheques), Assault (level 1), Break & Enter,
Robbery and Sexual Assault. These offenses are representative of crimes against the person,
property and a "paper" crime.

Statistics for these offenses were gathered from three (3) municipal police forces
(Windsor, Barrie and Ottawa) which were used to establish the average size of the
disclosure packages normally given to defence counsel. It should be noted that it was
specified that these packages did not include any extraordinary material such as videotape,
photographic or wiretap evidence. Therefore the cases from which the package sizes have
been drawn are the everyday and routine cases. These package sizes have been reproduced
graphically in Figure 1.

The average size of a package associated to each of the five offenses has been
calculated and is graphically represented in Figure 2.

The 1990 Report from the Canadian Centre for Justice Statistics, Canadian Crime
Statistics. (Statistics Canada) was reviewed to ascertain the number of persons charged with
the above-noted offenses.

It should be noted that one factor of projecting costs is the increase or decrease in the
"rate of change" which offenses undergo over a period of time. In the case of the five
offenses sampled three of the five have an increased rate of change from 1986 to 1990. For
example, Statistics Canada have recorded a 29.2% increase in the frequency of sexual
assault, a 26.8% increase in assault and a 15.1% increase in robbery. The other two
offenses sampled break and enter and fraud show a decrease of 0.9% and 4.6% respectively.
Although there was no such rate of change reported between 1990 and 1991 media reports
have suggested that overall the rate of change for all criminal offenses is an annual increase
of approximately 5%. Such changes can only serve to increase the cost of disclosure.

A number of copying sources were contacted to establish the cost of copying. These
sources included one commercial source (The Printing House) and three different
government sources (Supply & Services Canada, O.P.P. Printshop and the R.C.M.P.
 -446-

Printshop). These government sources were contacted rather than, for example, the
municipal forces because they have an established "per page" material cost of copying. Most
municipal forces either have a fixed package price no matter what size of package is
provided or charge a fixed package price (up to a certain number of pages) plus a free for
each additional page. The commercial source provides a realistic cost of both labour and
materials for comparison purposes.

A baseline "rate of disclosure" of 30% has been established by such units as the
Windsor Joint Forces Court Section. This shows that only thirty percent of accused persons
and/or their defence counsel presently request disclosure. After the Stinchcombe decision
the rate of disclosure to accused persons has, I believe, increased and will continue to
increase over time. With the introduction, and implementation, of this Committee’s
recommendations will come a further increase in the rate of disclosure. For the purposes
of this study cost calculations were made using projected rated of disclosure of 30, 50 and
80%.

A series of tables (Figures 3 to 7) were then prepared which analyze the collected
information in order to establish the following information:

i) the number of packages required to provide disclosure to each accused at

projected rates of disclosure, namely 30, 50 and 80 percent;

i) the cost of the average disclosure package for each offence from each of the
four sources; and,

iii) the overall cost of disclosure at the varying rates of disclosure.

A review of the 1990 Report revealed that a total of 63,244 persons were charged with
the five offenses sampled in this study. The Report indicated that a total of 231,031 persons
were charged with Criminal Code offenses. This means that, for purposes of this analysis,
the number of persons charged with the five offenses represent 27.4% of the total number
of persons charged with Criminal Code offenses.

Combining all of this data one can then project the overall cost of disclosure at a
given cost per copy for one or all three rates of disclosure. For example, the total cost for
the five offenses sampled using the R.C.M.P. Printshop cost of $0,045 per page would be as
follows:

30% 50% 80%

$ 23,874.40 39,792.34 63,601.25

As these offenses represent 27.4% of the total number of persons charged then a simple
calculation can then allow the following projections for the overall cost (100%) at the given
 -447-

rates of disclosure and using the copying cost of $0,045 per page:

30% 50% 80%

$ 87,132.85 145,227.51 232,121.35

By way of comparison it should be noted that at commercial rates of $0.25 per page this
projection would be significantly higher as follows:

30% 50% 80%

$ 435,664.25 726,137.55 1,160,606.70

I have referred you to the commercial rates because some police forces do contract out their
copying work. For example, within the next two years operational units of the R.C.M.P.
within the Greater Toronto area may begin contracting out such work. In order to obtain
a truer projection of the overall cost of disclosure the use of commercial sources by the
police should be determined.

An alternative statistical approach yields even higher projected figures. Using the five
figures from Figure #2 one can determine an average size for a disclosure package of 34.64
pages. If you then multiply this by the total number of persons accused with a criminal
offence in 1990 (231,031) the estimated total number of pages for ah disclosure packages
would be over 8 million pages.

The cost at $0,045 per page would exceed $360,000.00. If the commercial rate of $0.25
per page is used in the calculation the cost would exceed $2 million.

If you applied the projected rates of disclosure (30, 50 and 80%) used in the original
statistical approach the cost at $0,045 per page would be as follows:

30% 50% 80%

$ 108,039.33 180,065.56 288,104.89

Using the commercial rate of $0.25 per page the cost projection again is significantly
increased:

30% 50% 80%

$ 600,218.52 1,000,364.20 1,600,582.70

 -448-

My point in employing this second approach is to show that without an extensive survey of
current disclosure packages together with an empirically sound means of projecting the
ongoing and future changes to the disclosure process a "true estimate” cannot be found. In
Part b. I will note and discuss a number of the factors which must also be taken into account
when attempting to determine a true estimate. These, I believe, will show why I did not
simply use the foregoing statistical estimates and have instead projected the figure shown
in the conclusion of this study.

b. It should be noted that this is a simplistic analysis which employs statistics derived from
relatively routine investigations. Police in Ontario are regularly involved in the investigation
of complex offenses. Examples of such investigations would include, but are not limited to,
large scale drug offenses, homicides, criminal conspiracies, organized crime, major frauds,
counterfeiting operations, proceed of crime and other serious crime.

Disclosure packages for more complex investigations are larger in volume and often include
materials drawn from large scale searches, wiretap, extensive surveillance and the gathering
of photographic and other forms of forensic evidence. These additional materials will
dramatically increase the cost of a disclosure package both in terms of its volume and the
nature of the required reproduction.

An example of a complex investigation is "Project Omega" which was an investigation

of a criminal conspiracy involving the sale of oil products. This investigation resulted in the
laying of three sets of charges against a number of accused. Each set of charges generated
its own court brief/disclosure package. These three packages totalled 28, 40 and 25 volumes
respectively. Each volume contained approximately 350 to 400 pages. The estimated
material cost of these three packages (or 93 volumes) totalled $1700 per copy.

This means that if, for example, there were a total of ten accused persons being
prosecuted, each with his or her own defence counsel, that the minimum cost of 10
disclosure packages would total $17,000.00. This example makes it easy to understand how
the cost of disclosure in complex cases involving multiple accused can easily amount to tens
of thousands of dollars.

c. These estimates do not include other criminal offenses, such as drug offenses,
commonly prosecuted in Ontario. As these types of offenses are being aggressively
investigated by federal, provincial and municipal police forces and agencies throughout
Ontario the number of persons charged would be significant.

As can be seen in Figure 8 even a relatively simple investigation of drug trafficking will
result in a 35 page package (based on figures obtained from R.C.M.P. Toronto Drug
Section). In 1990 in Ontario 4,931 persons were charged with drug trafficking.

If the Committee recommends the use of disclosure packages for all criminal offenses,
including Provincial Offenses, then this, together with offenses such as drug trafficking, will
 -449-

significantly increase the cost of disclosure.

d. It should be noted that as the ethnic diversity of Ontario continues to grow police will
undoubtedly increase their use of translators during the course of their investigations;
notably in the monitoring and transcription of wiretap operations. In the past, to minimize
cost, only relevant portions from wiretaps were transcribed and translated. With the
Stinchcombe decision this practice will undoubtedly change thereby increasing the overall
cost of disclosure. This raises the question of who will bear the responsibility for this
increased cost.

A last factor which may have a significant impact on disclosure costs is another
recommendation which the Committee is contemplating. The Committee has adopted the
view that all statements, wherever possible, should be recorded by the police. This form of
recording, either audio or video, could significantly increase the cost of disclosure if
reproductions, rather than transcripts, of these recordings are provided to the accused and
their counsel.

This form of disclosure will become increasingly common as the use of recordings
increases and, in particular, should the courts interpret the term "meaningful" in Stinchombe
to mean the use of recording reproductions rather than transcripts. The end result is a
further increase in the cost of disclosure; one which is difficult to project without some form
of direction as to who shall bear the cost.

SUGGESTED GUIDELINES

The Stinchcombe decision fails to provide any direction regarding issues such as
procedure, cost and who shall bear the cost. The Committee continues to examine these
issues. With respect to cost a number of guidelines should be developed to clarify certain
elements involving cost to afford all parties some guidance.

Disclosure in relatively routine investigations is not difficult to complete nor is the cost
prohibitive; it is the more complex investigations and prosecutions which will pose such
difficulties and expense. Therefore these guidelines should focus on means by which costs
are kept to minimum. Suggestions for these guidelines include the following:

i) When the police undertake an investigation that has the potential for
extensive disclosure, the police will contact the appropriate prosecuting authority (either the
provincial or federal Crown Attorney) in order to develop a plan for future disclosure. The
senior Crown Attorney will, in consultation with the police investigators, appoint a Crown
prosecutor to liaise with the police in order to provide advise, when and as required, in the
preparation of disclosure packages.

Such as step should minimize the time spent on package preparation and ensure its
 -450-

proper content at the same time.

This should have a favourable impact on cost of the package as it allows the Crown to make
decisions concerning relevancy while the package is being assembled as opposed to doing
so after it has been completed by the police.

ii) Upon completion of the investigation, the police will provide an

original and one copy of the disclosure package. As per the basic concept of cost sharing,
the Crown shall bear the material cost of the copy of the disclosure package.

iii) Any supplemental disclosure requested by the Crown should follow

the procedures and cost sharing set out in guidelines i) and ii).

iv) When further copies of the package are requested from the police by
either Crown or defence counsel the cost of such copies shall be borne by the Crown.

v) If a disclosure package must be amended or edited after it has been

submitted to the Crown following the consultation process outlined in the guidelines i) the
responsibility for such amendments rests with the Crown; both in terms of the content of
these amendments and the cost of their production. If the Crown directs the police to
undertake such changes despite the completion of both the consultation process and the
investigation then the full additional cost shall be the responsibility of the prosecuting
authority, provincial or federal.

CONCLUSION

As can be readily seen from this study there are a number of factors which must be
included in any projection of the cost of disclosure which cannot be determined with any
precision at this time.

The frequency of the inclusion of reproductions of recordings in packages is a factor

dependent upon the future use of audio and video recording by the police. The current use
of such forms of evidence together with other materials, such as photographs, is too difficult
to determine without an extensive review of police investigations across the province; a
review which was not possible in the time allotted.

The cost of such materials is subject to the idiosyncrasies of the individual police forces
involved; a fact which makes it difficult to project future cost based on current charges set
by these police forces. The best way to simplify the projection of future cost is to establish
a province-wide fee schedule governing the cost of these materials. In order to create such
a schedule we must first survey various police forces to determine their current sources of
such materials and their cost. Once this is done it may be possible to create a common
source of materials so that all may benefit from volume purchases.
 -451-

Similarly, the development of uniform reporting systems which can be incorporated into
disclosure packages may serve to reduce future costs. The development of such a system,
however, will require cooperation between the police, the bar and the bench across the
province to ensure that the system meets the needs of all parties involved in the criminal
justice system.

Although it is recognized that any projection as to the cost of disclosure is dependent

upon factors yet to be determined I believe that in the very near future the cost of
disclosure in Ontario will easily exceed an annual figure of $500,000.00. This figure is based
on our present knowledge of the process as detailed in this study and is premised on the
belief that the suggested guidelines will be implemented.

This figure has been reached by extending the alternative statistical approach previously
referred to in my discussion of Examples of Cost on page 4. To determine the annual figure
of $500,000.00 I combined the estimated costs of disclosure packages for all Criminal Code,
Federal Statute and Provincial Offenses in the following manner:

i) The number of accused for each distinct type of offence (Criminal

Code, Federal Statute and Provincial Offence) were 231,031 / 23,304
/ 136,801 respectively as reported by Stats Canada in 1990;

ii) The average package size of 36.64 pages was derived from the
average package size for the five criminal offenses and then
confirmed by the average package size for the drug trafficking
offence. The average package size for a Provincial Offence was not
statistically derived, but is instead estimated to be similar in size to
the other types of offenses;

iii) The R.C.M.P. Printshop cost of $0,045 per page is then used to
calculate the costs.

The results of this calculation are represented graphically in Figure #9 utilizing the three
projected rates of disclosure (30, 50 and 80%). As can be seen, the progression of cost ends
with a total cost of $487,425.52.

This figure does not include the increased costs brought on by the various factors
outlined in this study such as the impact of complex investigations. I have no firm figures
to apply to the above-noted figure but the cost of one complex investigation, such as Project
Omega, would place the estimated total cost in excess of $500.000.00.

This study is submitted to the Committee for the purposes of discussion.

 452

FRAUD (CHEQUES) B&E ASSAULT (LEVEL 1) ROBBERY SEXUAL ASSAULT

SELECTED OFFENCES
MUNICIPAL POLICE DEPARTMENTS (Fig.«)

453

SELECTED OFFENCES
 454

Projected Rate of Disclosure - Fraud (Cheques) (ng. m

Number of Persons Charged in 1990 30% 50% 80%

7,549 2,265 3,775 6,039

Average number of pages in brief = 40

Cost of Average Disclosure Package

Cost Average
Printing Source Per Page Number of Pages Total

Commercial $.25 40 $10.00

Supply & Services $.025 40 $ 1.00

Q.P.P. $.03 40 $ 1.20

“O” Division $.045 40 $ 1.80

Projected Overall Cost of Disclosure at Given Rates

Source Cost Cost @30% Cost @50% Cost @80%

Commercial $22,650.00 $37,750.00 $60,390.00

Supply & Services $ 2,265.00 $ 3,775.00 $ 6,039.00

O.P.P. $ 2,718.00 $ 4,530.00 $ 7,246.80

“O” Division $ 4,077.00 $ 6,795.00 $10,870.20

 455

Projected Rate of Disclosure - B & E tug. *»>

Number of Persons Charged in 1990 30% 50% 80%

18,570 5,571 9,285 14,856

Average number of pages in brief = 25

Cost of Average Disclosure Package

Cost Average
Printing Source Per Page Number of Pages Total

Commercial $.25 25 $6.25

Supply & Services $.025 25 $ .63

O.P.P. $.03 25 $ .75

“O” Division $.045 25 $1.13

Projected Overall Cost of Disclosure at Given Rates

Source Cost Cost @30% Cost @50% Cost @80%

Commercial $34,818.75 $58,031.25 $92,850.00

Supply & Services $ 3,509.73 $ 5,849.55 $ 9,359.28

O.P.P. $ 4,178.25 $ 6,963.75 $11,142.00

“O” Division $ 6,295.23 $10,492.05 $16,787.28

 456

Projected Rate of Disclosure - Assault (Level 1) (Fig.

Number of Persons Charged in 1990 30% 50% 80%

30,191 9,057 15,096 24,153

Average number of pages in brief = 23.3

Cost of Average Disclosure Package

Cost Average
Printing Source Per Page Number of Pages Total

Commercial $.25 23.3 $5.83

Supply & Services $.025 23.3 $ .58
O.P.P. $.03 23.3 $ .70
“O” Division $.045 23.3 $1.05

Projected Overall Cost of Disclosure at Given Rates

Source Cost Cost @30% Cost @50% Cost @80%

Commercial $52,802.31 $88,009.68 $140,811.99

Supply & Services $ 5,253.06 $ 8,755.68 $ 14,008.74

O.P.P. $ 6,339.70 $10,567.20 $16,907.10

“O” Division $ 9,509.85 $15,850.80 $25,360.65

 457

Projected Rate of Disclosure - Robbery (f*. #6)

Number of Persons Charged in 1990 30% 50% 80%

2,654 796 1,327 2,123

Average number of pages in brief = 41.6

Cost of Average Disclosure Package

Cost Average
Printing Source Per Page Number of Pages Total

Commercial $.25 41.6 $10.40

Supply & Services $.025 41.6 $ 1.04

O.P.P. $.03 41.6 $ 1.25

“O” Division $.045 41.6 $ 1.87

Projected Overall Cost of Disclosure at Given Rates

Source Cost Cost @30% Cost @50% Cost @80%

Commercial $8,278.40 $13,800.80 $22, 079.20

Supply & Services $ 827.84 $ 1,380.08 $ 2,207.92
O.P.P. $ 995.00 $ 1,658.75 $ 2,653.75
“O” Division $ 1,488.52 $ 2,481.49 $ 3,906.32
 458

Projected Rate of Disclosure - Sexual Assault (Fig. #d

Number of Persons Charged in 1990 30% 50% 80% !

4,280 1,284 2,140 3,429

Average number of pages in brief — 43.3

Cost of Average Disclosure Package

Cost Average
Printing Source Per Page Number of Pages Total

Commercial $.25 43.3 $10.83

Supply & Services $.025 43.3 $ 1.08

O.P.P. $.03 43.3 $ 1.30

“O” Division $.045 43.3 $ 1.95

Projected Overall Cost of Disclosure at Given Rates

Source Cost Cost @30% Cost @50% Cost @80%

Commercial $13,905.72 $23,176.20 $37,081.92

Supply & Services $ 1,386.72 $ 2,311.20 $ 3,697.92

O.P.P. $ 1,669.20 $ 2,782.00 $ 4,457.70

“O” Division $ 2,503.80 $ 4,173.00 $ 6,676.80

 459

Projected Rate of Disclosure - Trafficking Drugs (Fig. m

Number of Persons Chaigcd in 1990 30% 50% 80%

4,931 1,479 2,466 3,945

Average number of pages in brief — 35

Cost of Average Disclosure Package

Cost Average
Printing Source Per Page Number of Pages Total

Commercial $.25 35 $8.75

Supply & Services $.025 35 $ .88

O.P.P. $.03 35 $1.05

“O” Division $.045 35 $1.85

Projected Overall Cost of Disclosure at Given Rates

Source Cost Cost @30% Cost @50% Cost @80%

Commercial $12,941.25 $21,577.50 $34,518.75

Supply & Services $ 1,301.52 $ 2,170.08 $ 3,471.60

O.P.P. $ 1,552.95 $ 2,589.28 $ 4,142.25

“O” Division $ 2,336.82 $ 3,896.28 $ 6,233.10

 Estimated Total Annual Cost of Disclosure (Fig. #9)

UOwH
O fa
460

RATE OF DISCLOSURE
 APPENDIX J

RECOMMENDATIONS AND OPINIONS OF THE ATTORNEY GENERAL S

ADVISORY COMMITTEE ON CHARGE SCREENING, DISCLOSURE,

AND RESOLUTION DISCUSSIONS

CHARGE SCREENING

The Threshold Test for Commencing or Continuing a Prosecution

1. The Committee recommends that for the purposes of a threshold test regarding the
screening of charges by the prosecutor, the test of a "reasonable prospect of conviction" be
adopted for all offences.

2. The review to determine whether the threshold test has been met should include an
assessment of the probative value of the evidence, including some assessment of the
credibility of witnesses.

3. The review to determine whether the threshold test has been met should include
consideration of the admissibility of evidence. The threshold test will not be met where
evidence necessary to the prosecution is clearly or obviously inadmissible.

4. The review to determine whether the threshold test has been met should include a
consideration of any defences, for example alibi, that should reasonably be known, or that
have come to the attention of the Crown.

5. The same threshold test applies for commencing, continuing, or discontinuing a

prosecution.

The Threshold Test and the Public Interest

6. The Committee recommends that public interest factors should only be considered
after the threshold test has been met, and then should only be used to refrain from
commencing, or to discontinue a prosecution.
 -462-

Various Public Interest Factors that May be Relevant

7. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should consider the charge or charges that
best reflect the gravity of the incident.

8. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should not consider any political
consequences for the government flowing from the prosecution.

9. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should consider the circumstances and
attitude of the victim. The attitude of the victim is not, however, decisive.

10. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should consider the entitlement of the
victim to compensation, reparation, or restitution if a conviction is obtained.

11. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should not consider the status in life of
either the accused or the victim.

12. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should consider the need to maintain
public confidence in the administration of justice, and the effect of the incident or
prosecution on public order.

13. The Committee recommends that the agent of the Attorney General should take into
account national security and international relations in determining whether a prosecution
is in the public interest.

14. The Committee recommends that, in determining whether a prosecution is in the

public interest, the agent of the Attorney General should consider the availability and
efficacy of alternatives to prosecution.
 -463-

15. The Committee recognizes that the factors specifically discussed above are not an
exhaustive enumeration of the considerations that may be relevant to an assessment of the
public interest in a prosecution.

The Threshold Test and Policies, Directives and Guidelines in General

16. The Committee recommends that guidelines regarding the threshold test and what
factors are included in the term "public interest" should be published by the Attorney
General.

17. The Committee recommends that directives from the Attorney General to his or her
agents should be few and far between.

18. The Attorney General should instruct his or her agents through the use of guidelines,
which formally permit the exercise of discretion in their application.

19. Such guidelines and the rare directives which may issue should not be taken into
account by agents of the Attorney General until they are published or otherwise made
known to the public.

Charge Screening in Ontario

20. The Committee recommends that there exist in Ontario a system of charge screening
by agents of the Attorney General.

21. The Committee recommends that there exist in Ontario a system of post-charge
screening by agents of the Attorney General.

22. The Committee recognizes the long standing tradition in Ontario of police
consultation with the Crown in matters of difficulty at the pre-charge stage of the
investigation. The Committee encourages this tradition of co-operative consultation to
continue where, in the judgment of senior police officers, consultation is warranted. Where
warranted, such consultation need not be limited to matters of evidence, but should also
pertain to the various public interest factors that may affect the course of the prosecution
apart altogether from the evidence.
 -464-

The Mechanics of Post-Charge Screening

23. The Committee recommends that the Attorney General's agents should be required
to conduct their post-charge review prior to setting a date for a preliminary hearing or trial

24. The Committee recommends that the investigators should provide to Crown counsel
for the purposes of screening charges, all information necessary to ascertain if the threshold
test for conducting a prosecution has been met, and all information necessary to assess the
impact of any relevant public interest factors in the prosecution. This material will
necessarily include, but will not be limited to, that which is required for disclosure.

25. The Committee recommends that the Attorney General require his or her agents to
be duly diligent in making efforts to obtain all information that relates to a case for
purposes of screening and disclosure.
 -465-

DISCLOSURE

General Recommendations With Respect to Disclosure

Disclosure Recommendations Pertaining to Investigations

26. The Committee recommends that the Attorney General request that the Solicitor
General issue a statement to all police officers emphasizing the importance of taking
careful, accurate, and contemporaneous notes during their investigations. (The statement
should emphasize that disclosure requirements after Stinchcombe cannot be thwarted by
making less accurate or less comprehensive notes.)

27. The Committee recommends that, upon request, copies of relevant original notes
should be disclosed, subject to editing or non-disclosure where the public interest requires
it, including editing or non-disclosure, where necessary, to protect confidential informants,
the existence of on-going investigations, and the integrity of police investigative techniques.

28. The Committee recommends that statements of suspects or accused persons taken
at the police station or wherever such persons are detained, be video taped or audio taped,
preferably video taped. It is recognized that this may not always be practical or technically
feasible.

Ethical and Legal Obligations Relating to Disclosure

The Police

29. The Committee recommends that s. l(c)(viii) of the Code of Offences, a Schedule
to Regulation 791 under the Police Sendees Act, R.S.O. 1990 c. P-15, be amended to read
as follows:

1. Any chief of police, other police officer or constable commits an offence against
discipline if he is guilty of

(c) NEGLECT OF DUTY, that is to say, if he,

... where a charge is laid fails to disclose to the officer in charge of the
prosecution or the prosecutor any information that he or any person within
his knowledge can give for or against any prisoner or defendant.
 -466-

Crown Counsel

30. The Committee recognizes that it is a serious disciplinary offence for the Crown to
fail to disclose to the defence as required.

31. The Committee recommends that it is inappropriate for Crown counsel to limit or
refuse disclosure in a case, unless defence counsel agrees to limit a preliminary inquiry so
as to ensure efficient use of court time. This does not preclude counsel from agreeing to
shorten or waive a preliminary inquiry.

32. The Committee recommends that it is inappropriate for the Attorney General to
withhold disclosure, unless defence counsel gives an undertaking not to share the
information with his or her client.

Defence Counsel

33. The Committee acknowledges that, at present, there is no obligation upon the
defence to disclose any part of its case before trial. The Committee makes no further
recommendation in this respect.

34. The Committee is of the opinion that it is inappropriate for any counsel to give
disclosure materials to the public. Counsel would not be acting responsibly as an officer of
the Court if he or she did so.

35. The Committee is of the opinion that defence counsel should maintain custody or
control over disclosure materials, so that copies of such materials are not improperly
disseminated. Special arrangements may be made between defence and Crown counsel,
with respect to maintaining control over disclosure materials where an accused is in custody,
and where the volume of material disclosed makes it impractical for defence counsel to be
present while the material is reviewed.
 -467-

Disclosure and Summary Conviction Offences

36. The Committee recommends that the nature and extent of disclosure should not vary
based on whether the charge was prosecuted by way of indictment, summary conviction
procedure, or prosecuted under the Provincial Offences Act.

37. The Committee recommends that in all summary conviction matters under the
Criminal Code which are commenced by a private complainant, the Crown should intervene
to either withdraw the charge or to conduct the prosecution. If the Attorney General
intervenes and conducts the prosecution, disclosure should be made in the same way as any
other prosecution. Nothing herein is to be construed as precluding the Attorney General
from assuming carriage of prosecutions under the Provincial Offences Act in appropriate
cases, for example, under the Environmental Protection Act.

Other Recommendations

38. The Committee recommends that the Attorney General should require reasonable
efforts from his or her agents to determine the sufficiency of disclosure. It is recognized
that the obligation to provide disclosure is on-going.

39. The Committee recommends that all accused persons be advised of their right to
disclosure, and where disclosure may be obtained, by written notice on all release forms or
summonses.

40. As a general rule, the Committee is in favour of disclosure in writing.

Recommendations Relevant to a Proposed New Disclosure Directive

41. The Committee recommends that the Attorney General issue a new directive on
disclosure, based upon the following recommendations and principles.
 Purpose and General Principles of Disclosure

The purpose of disclosure is to assist in guaranteeing the accused's common law and
constitutional rights to a fair trial and to make full answer and defence.

Timely and full disclosure by Crown counsel, when diligently utilized by the defence,
benefits both the accused and the administration of justice as a whole. Among the
benefits are:

(a) the resolution of non-contentious and time-consuming issues in advance of the

preliminary hearing or the trial, which ensures the most efficient use of court
time;

(b) the waiver or shortening of preliminary hearings and the shortening of trials; and

(c) early resolution of cases, including, where appropriate, the entry of pleas of guilty
or the withdrawal of charges.

The governing principle is that Crown counsel is under a duty to disclose all information
in his or her possession relevant to the guilt or innocence of the accused, unless the
information is excluded from disclosure by a legal privilege. Crown counsel's duty to
disclose any relevant information in his or her possession, whether favourable or
unfavourable to the accused, extends to any information which is not clearly irrelevant.
All decisions by Crown counsel not to disclose on grounds of either privilege or relevance
are reviewable by the trial judge.

Part of Crown counsel's obligation to disclose all relevant information in his or her
possession includes the disclosure of information in his or her possession which is
relevant to the prosecution's case, thus enabling the accused to know the case that he
or she must meet. Crown counsel must not withhold such information for the purpose
of cross-examining on it. This paragraph does not require pre-trial disclosure of reply
evidence tendered by Crown counsel in response to issues raised by the accused at trial
where the relevance of that evidence first becomes apparent during the course of the trial
itself.

Crown counsel's obligation to disclose is a continuing one and disclosure of additional

relevant information must be made when it is received. Even after conviction, including
after any appeals have been decided or the time for appealing has lapsed, Crown counsel
must disclose information which he or she realizes shows an accused is innocent or
which raises a doubt as to the accused's guilt.
An accused is entitled to disclosure, but where an accused is represented by counsel this
right is triggered by a request for disclosure made by counsel. It is recommended that
such disclosure requests be made in writing. Where there has been a timely request by
defence counsel, disclosure must be made before plea or election. Defence counsel who
wish disclosure have a responsibility to make a timely request for it. Where the request
is not timely, disclosure must be made as soon as reasonably practical and, in any event,
before trial. However, even in the absence of a request, Crown counsel must specifically
advise the defence before trial whether the accused is represented or not, of any
information in his or her possession that is obviously exculpatory or which Crown
counsel realizes is exculpatory of the accused. Disclosure must be provided or waived
prior to any resolution discussions.

Where the accused is not represented by counsel, the Court or Crown counsel must
inform the accused of the right to disclosure and how to obtain it. The accused should
be advised of the right to disclosure and how to obtain it as soon as he or she indicates
an intention to proceed unrepresented. Unless the unrepresented accused clearly
indicates that he or she does not wish disclosure, it must be provided before plea or
election, so as to enable the accused sufficient time before plea or election to consider
the information disclosed. Disclosure must be provided or waived prior to any resolution
discussions.

Crown counsel has a discretion, reviewable by the trial judge:

(a) to withhold disclosure where he or she has reasonable cause to believe

withholding is necessary to preserve the identity of an informant, to preserve the
solicitor-client privilege, or to preserve investigation techniques; and

(b) to delay disclosure where he or she has reasonable cause to believe delay is
necessary to protect the safety or security, which includes protection from
harassment, of persons who have supplied information to the Crown, or to
complete an investigation. Any delays in disclosure to complete the investigation
should, however, be rare.

(a) Defence counsel should not leave disclosure material in the unsupervised
possession of an accused person.

(b) An unrepresented accused is entitled to the same disclosure as the represented

accused. However, if there are reasonable grounds for concern that leaving
disclosure material with the unrepresented accused would jeopardize the safety,
security, privacy interests, or result in the harassment of any person, Crown
counsel may provide disclosure by means of controlled and supervised, yet
 -470-

adequate and private, access to the disclosure materials. Incarcerated,

unrepresented accused persons are entitled to adequate and private access to
disclosure materials under the control and supervision of custodial authorities.
Crown counsel shall infortn the unrepresented accused, in writing, of the
appropriate uses and limits upon the use of the disclosure materials.

10. Dialogue between Crown and defence counsel before and after disclosure, and, in any
event, prior to setting a date for preliminary inquiry or trial, is strongly encouraged.
Crown counsel and defence counsel, as officers of the Court, will usually be able to
resolve disputes with respect to disclosure. If they are unable to resolve a dispute, the
trial judge must resolve it.

11. The principle of disclosure applies to prosecutions for indictable offences, summary
conviction offences and prosecutions under the Provincial Offences Act. In all such
prosecutions, the Crown, or the private prosecutor, is required to provide complete
disclosure in accordance with these recommendations, save where they are inapplicable.

Particular Requirements

12. The accused, pursuant to the foregoing principles, is entitled to complete disclosure.
Without limiting the generality of the foregoing, the Crown is required to provide the
following information in its possession unless clearly irrelevant:

(a) a copy of the charge or charges contained in the information and indictment;

(b) an accurate synopsis of the circumstances of the offence alleged to have been
committed by the accused, as prepared by the investigating agency;

(c) All statements obtained from persons who have provided relevant information to
the authorities should be produced, even though Crown counsel does not propose
to call them as witnesses. Statements of any co-accused (whether made to a
person in authority or not) should also be produced. Crown counsel shall
provide to the accused:

(i) copies of any written statements;

(ii) copies of any will-say summaries of anticipated evidence, and

copies of the investigator's notes or reports from which they are
prepared, if such notes or reports exist;
 -471-

(iii) a reasonable opportunity, in private, to view and listen to the

original or a copy of any audio or video recordings of any
statements made by a potential witness other than the accused.
This does not preclude Crown counsel, in his or her discretion,
from providing copies of any video or audio recording or a
transcript thereof, where available;

(iv) Where statements or recordings do not exist, copies of the

investigator's notes, in relation to the persons who have provided
relevant information to the authorities, must be provided. If there
are no notes, then all relevant information in the possession of
Crown counsel that the person could give should be supplied,
subject to Crown counsel's discretion to delay disclosure.

(v) In addition to the foregoing, Crown counsel may, upon request by

the defence, also provide the name, address, and occupation of
any person who has relevant information to give, subject to Crown
counsel's discretion to delay or withhold such disclosure.

(vi) Any discretion exercised by the Crown with respect to disclosure of

the foregoing is reviewable by the trial judge.

(d) information regarding the criminal record of the accused and any co-accused;

(e) a copy of any written statement made by the accused to a person in authority,
and, in the case of verbal statements, an accurate account of the statement
attributed to the accused and copies of any investigator's notes in relation thereto,
and a copy of, and a reasonable opportunity to view and listen to, any original
video or audio recorded statement of the accused to a person in authority. All
such statements or access thereto must be provided whether or not they are
intended to be introduced in evidence.

(f) a copy of any police occurrence reports and any supplementary reports;

(g) as soon as available, copies of any forensic, medical, and laboratory reports
which relate to the offence, including all adverse reports, except to the extent that
they may contain irrelevant or privileged information;

(h) where reasonably capable of reproduction, and where Crown counsel intends to
introduce them into evidence, copies of documents, photographs, audio or video
recordings of anything other than a statement by a person, and other materials
should normally be supplied to the defence. The defence may be limited to a
reasonable opportunity, in private, to view and listen to a copy of any audio or
video recording where Crown Counsel has reasonable cause to believe that there
exists a reasonable privacy or security interest of the victim(s) or witness(es), or
 -472-

any other reasonable public interest, which cannot be satisfied by an appropriate

undertaking from defence counsel.

(i) a copy of any search warrant relied upon by the Crown, the information in
support, and a list of items seized thereunder, if any;

(j) if intercepted private communications will be tendered, a copy of the judicial

authorization under which the private communications were intercepted;

(k) an appropriate opportunity to inspect any relevant items seized or acquired during
the investigation of the offence which remain in the possession of the
investigators, whether or not Crown counsel intends to introduce them as exhibits
in court;

(l) upon request, information regarding criminal records of material Crown or

defence witnesses that is relevant to credibility;

(m) upon request, any information in the possession of Crown counsel, for example,
information regarding outstanding criminal charges or criminal convictions
demonstrated to be relevant to the defence; and

(n) where identity is in issue, and the Crown relies in whole or in part on the visual
identification of the accused as the person seen in the circumstances of the crime,
all information in the possession of Crown counsel that has a bearing on the
reliability of the identification must be disclosed to the accused.

13. Crown counsel is required to disclose any information in his or her possession relevant
to the credibility of any proposed Crown witness. Without limiting the generality of the
foregoing. Crown counsel is required, for example, to disclose:

(a) any prior inconsistent statements or subsequent recantations of that person;

(h) particulars of any promise of immunity or assistance given to that person with
respect to a pending charge, bail, or sentence, or any other benefit or advantage
given; and

(c) any mental disorder from which that person is suffering that may be relevant to
the reliability of his or her evidence.

14. Subject to Crown counsel's discretion as to relevance, which is reviewable by the trial
judge, counsel on behalf of the accused or an unrepresented accused may, upon request,
inspect the investigative agency's file in relation to the offence. The defence should,
where possible, particularize their request to assist Crown counsel in exercising their
 -473-

discretion as to the relevance of undisclosed information in the investigative file. Any

dispute arising from such a request should usually be resolved in discussions between
Crown and defence counsel This recommendation does not preclude Crown counsel
from limiting the defence to access to photocopies of the file material wherever necessary
to preserve the integrity of the originals, for example, where editing the originals would
destroy their integrity, or taking other reasonable steps necessary to protect:

(a) the safety, security or freedom from harassment of people who have provided
information to the Crown;

(b) the informer privilege;

(c) any other privilege; or

(d) on-going police investigations or investigative techniques.

15. Crown counsel generally need not disclose any internal Crown counsel notes,
memoranda, correspondence, or legal opinions. Where, however, Crown counsel learns
of additional relevant information in the course of interviewing Crown witnesses, defence
counsel or an unrepresented accused should be advised of that information as soon
thereafter as practicable.

16. Crown counsel shall advise the defence of any decision made not to disclose information
in his or her possession that should otherwise be disclosed, and the importance of that
information. Crown counsel shall also advise the defence of the specific nature of the
information in his or her possession which is not disclosed, unless disclosure of the
nature of the information withheld would reveal the identity of an informer, jeopardize
anyone's safety or security or subject them to harassment, compromise an on-going
investigation, or reveal police investigative techniques. Upon request Crown counsel shall
take any other steps reasonably necessary to facilitate a review by the trial judge of any
decision not to disclose.

17. Nothing herein precludes defence counsel from making further requests to Crown counsel
for disclosure of information in the possession of Crown counsel or the investigating
authorities. Defence and Crown counsel are strongly encouraged to narrow and define
the issues to assist Crown counsel in determining whether information is relevant.

18. Information in the possession of bodies, such as boards, social agencies, and other
governmental departments, is not in the possession of Crown counsel or the investigating
agency for disclosure purposes. Where Crown counsel receive requests for information
 -474-

not in their possession or the possession of the investigative agency, the defence should be so
advised in a timely manner in order that they may take such other steps to obtain the
information as they see fit.

19. The Crown may, in its discretion, require written acknowledgement from defence counsel
or an unrepresented accused of disclosure received.

20. Where the names and addresses of witnesses are supplied to the defence by the Crown
or investigative agency, the witnesses may be informed that there is no property in a
witness and that the defence is entitled to interview them, but that they are not required
to grant an interxdew: it is strictly their decision. Care must be taken, however, to ensure
that the witnesses are not left with the impression that they should not grant the defence
an interview. There should be a standard form of providing this advice where it is given.

Implementing Disclosure

42. The Committee recommends that the Solicitor General co-ordinate with federal
authorities and that both issue such directives as are necessary, to require all police forces
operating within the province of Ontario to be aware of and comply with the Attorney
General's directive on disclosure in their relations with Crown prosecutors. These directives
should also make clear that the police and other investigators

(a) are bound to exercise reasonable skill and diligence in discovering all relevant
information, even though such information may be favourable to the accused;

(b) are under a duty to report to the officer in charge or to Crown counsel all
relevant information of which they are aware, including information
favourable to an accused, in order that Crown counsel may discharge the duty
to make full disclosure; and that

(c) a failure to disclose all relevant information as required is a disciplinary

offence.

43. The Committee recommends that the police should bear all production costs
including labour, equipment, and material costs associated with the preparation and delivery
to the Crown of the Crown Brief, photographs, and other exhibits or material used in the
prosecution of a case in court. The Ministry of the Attorney General will bear the actual
material costs needed to produce second or subsequent copies of Crown Briefs intended for
disclosure purposes to defence counsel or to the accused person.

44. The Committee recommends that an accused person should not have to pay for basic
disclosure.
 -475-

Disclosure and Accused Persons in Custody

45. The Committee recommends that the Attorney General recommend to Cabinet and
the federal Minister responsible for penitentiaries that procedures and facilities be set up
for controlling disclosure materials for accused who are in custody while, at the same time,
providing the accused supervised, yet full and private, access to these materials.
 -476-

RESOLUTION DISCUSSIONS

46. The Committee is of the opinion that resolution discussions are an essential part of
the criminal justice system in Ontario, and, when properly conducted, benefit not only the
accused, but also victims, witnesses, counsel, and the administration of justice generally.

Recommendations Relating to the Conduct of Resolution Discussions

47. The Committee recommends that Crown counsel should not accept a plea of guilty
to a charge where he or she knows that the accused is innocent.

48. Where Crown counsel knows that the prosecution will never be able to prove a
material element of the case, Crown counsel has a duty to disclose this to the defence.

49. The Committee recommends that Crown counsel can accept a plea of guilty where
he or she is aware that the prosecution will never be able to prove a material element of
the offence provided this state of affairs is fully disclosed to the defence.

50. The Committee recommends that the Attorney General should require all of his or
her agents conducting resolution discussions to ensure that the Crown's position on sentence
not be formulated simply for reasons of expediency, and not otherwise bring the
administration of justice into disrepute.

51. The Committee recommends that the Attorney General should require his or her
agents conducting resolution discussions to consider the interests of victims. The Attorney
General should require his or her agents conducting resolution discussions to consult with
any victims, where appropriate and feasible, prior to concluding such discussions.

52. The Committee recommends that the Attorney General emphasize to his or her
agents that a plea of guilty is a circumstance in mitigation of sentence, and when the plea
of guilty is offered at the first reasonable opportunity it is particularly mitigating.

53. The Committee recommends that, as a general rule, counsel must honour all
agreements reached after resolution discussions. However, on rare occasions, it is
appropriate for senior Crown counsel, after reviewing an agreement made by the Crown,
to repudiate that agreement if the accused can be restored to his or her original position,
and if the agreement would bring the administration of justice into disrepute.
 -477-

Recommendations Concerning Courtroom Practice Following Resolution Discussions

54. The Committee recommends that, as a general rule, open to some exceptions, Crown
counsel should state on the record in open court that resolution discussions have been held
and that an agreement has been reached.

55. The Committee recommends that where a plea of guilty is entered, the trial judge
should question the accused to ensure:

(a) that they appreciate the nature and consequence of a plea of guilty;

(b) that the plea is voluntarily made; and

(c) that they understand that an agreement between the Crown prosecutor and
defence counsel does not bind the court.

56. The Committee recommends that the Attorney General seek an amendment to the
Criminal Code requiring a sentencing judge to question the accused as set out above,
whether the accused is represented by counsel or not.

57. The Committee recommends that it is improper for the Crown to withhold from the
Court any relevant information in order to facilitate a guilty plea. In cases where not all
matters are admitted, the Crown should advise the Court of the allegations and then
proceed upon the admitted facts. In such cases, the Court will sentence on the admitted
facts only.

58. The Committee is of the opinion that a sentencing judge should not depart from a
joint submission unless the proposed sentence would bring the administration of justice into
disrepute, or is otherwise not in the public interest.

59. The Committee observes that Crown counsel at trial cannot bind the Attorney
General's discretion to appeal. The Committee recommends that where Crown counsel at
trial agrees to a joint submission which the sentencing judge accepts, the Attorney General
should appeal only where the sentence is so wrong as to bring the administration of justice
into disrepute.
 -478-

Procedural Aspects of Resolution Discussions

60, The Committee is of the opinion that Crown and defence counsel have a professional
obligation to meet prior to trial where appropriate to resolve issues. The Committee is of
the opinion that both Crown and defence counsel have a professional obligation to act
responsibly in arranging meetings and responding to initiatives aimed at resolving criminal
cases as early as possible. This will reduce demand for court time and ensure that court
time scheduled is used efficiently.

61. The Committee recommends that, apart from cases in which the accused is in
custody, or lengthy or complex cases, the Attorney General should require the completion
of disclosure and the conduct of resolution discussions before the setting of a date for a
preliminary hearing or trial.

62. The Committee recommends that, absent exceptional circumstances, there should not
be resolution discussions at the trial courtroom door rather than at an earlier stage in the
proceedings.

Pre-Hearing Conferences

63. The Committee endorses pre-hearing conferences as a very useful and necessary
aspect of the administration of criminal justice in Ontario. Participation by the judiciary in
pre-hearing conferences is, in the Committee's view, both proper and just, and can
contribute greatly to the early and fair resolution of many cases. The Committee
encourages the judiciary to convene and participate in such conferences where appropriate.

64. The Committee recognizes that the procedure for conducting pre-hearing conferences
varies throughout the province depending on local circumstances. The Committee supports
this sensitivity to local conditions, and recommends that there be no uniform and province¬
wide manner of conducting pre-hearing conferences put in place. The Committee does,
however, endorse some basic principles as necessary for an effective pre-hearing conference.

65. The Committee recommends that a pre-hearing conference should not take place
until disclosure has been either obtained or waived.

66. The Committee recommends that a pre-hearing conference should take place as soon
as possible after all participating counsel have had a reasonable opportunity after disclosure
to familiarize themselves with the particular case.
 -479-

67. The Committee recommends that all counsel participating in the pre-hearing
conference must be fully familiar with the case, and must be in a position to make
admissions or agreements on behalf of the Crown or the client, as the case may be.

68. The Committee recognizes that it is always open to the presiding judge, for reasons
which seem sufficient to that judge, to record part or all of a pre-hearing conference.

69. The Committee recommends that any agreement reached, or position taken (such as
decisions on admissibility of evidence, or what Charter issues will be raised), excluding any
position taken on the issue of sentence, should be recorded in writing by the pre-hearing
conference judge.

70. The Committee recommends that a pre-hearing conference may cover the entire
range of issues in a case, including plea and sentence.

71. The Committee recommends that the pre-hearing conference must be scheduled so
as to allow sufficient time to fully discuss the case.

72. The Committee recommends that all parties participating in a pre-hearing conference
must be afforded a fair opportunity to state their positions and participate in the discussions.

73. The Committee is of the opinion that a judge presiding at a pre-hearing conference
should not be involved in plea bargaining in the sense of bartering to determine the
sentence, or pressuring any counsel to change their position. The presiding judge may,
however, assist in resolving the issue of sentence by expressing an opinion as to whether a
proposed sentence is too high, too low, or within an appropriate range.

74. The Committee recommends that if everyone is agreed on the suggested range of
sentence, and is content with the practice, there is no difficulty with the pre-hearing judge
going on to hear the plea of guilty. However, the pre-hearing judge should not hear the
plea of guilty, or any contested proceedings in the same prosecution other than
adjournments or attendances to set dates, unless all parties consent.

75. The Committee recommends that, during a plea and sentencing following a pre-
hearing conference, it is important to create a full record in open court, including sufficient
detail about the circumstances of the offence, the offender, and, where appropriate, the
victim.
 -480-

76. The Committee recommends that the Attorney General request of the federal
government that s. 625.1 of the Criminal Code be amended to read as follows:

625.1 (1) Subject to subsection 2, on application by the prosecutor or the

accused or on its own motion, the court before which, or the judge, provincial
court judge or justice before whom, any proceedings are to be held, may order
that a conference between the prosecutor and the accused or counsel for the
accused, to be presided over by the court, a judge, or a provincial court judge
or justice, be held prior to the proceedings to consider such matters as will
promote a fair and expeditious hearing, including, where just and appropriate,
final resolution of the charges in issue in the proceedings. The judge,
provincial court judge or justice who presides over such a conference shall not
preside over the trial, a plea of guilty, or any contested proceeding other than
adjournments or attendances to set dates in the same matter without the
consent of the prosecutor and the accused.

(2) In any case to be tried with a jury, a judge of the court before which the
accused is to be tried shall, prior to the trial, order that a conference between
the prosecutor and the accused or counsel for the accused, to be presided
over by a judge of that court, be held in accordance with the rules of court
made under section 482 to consider such matters as will promote a fair and
expeditious hearing, including, where just and appropriate, final resolution of
the charges in issue in the case.

77. The Committee is of the view that, absent exceptional circumstances, it is

inappropriate to engage in resolution discussions with the trial judge in Chambers.

78. The Committee is of the view that, as a general rule, open to some exceptions, any
resolution discussions that do take place with the trial judge in Chambers should be
recorded.

79. The Committee recommends that the Attorney General issue such public guidelines
as are appropriate to implement the Committee's recommendations with respect to
resolution discussions.

CONCLUDING RECOMMENDATION

80. The Committee recommends that the Solicitor General and the Attorney General
take appropriate steps and commit sufficient resources to provide instruction, training, and
continuing education for police officers and Crown counsel as to the Committee's
recommendations and views.
 APPENDIX K

ESSEX COUNTY'S LESSONS FOR THE REST OF THE PROVINCE

**

In Essex County, disclosure by the Crown is accomplished by a "court services office",

entitled Windsor Joint Forces Court Services. Windsor Joint Forces Court Services is

especially designed to handle disclosure, and a number of other functions relevant to the

early stages of the criminal process. The Court Services office, as presently structured, has

been in existence for six years. It was set up in response to the recommendations of the

1987 Report of the Ontario Courts Inquiry (the "Zuber Report"), which called for early and

more consistent disclosure by the Crown across the province.1

Windsor Joint Forces Court Services was seen at the outset of its operations as a

significant departure from the usual manner of handling cases. The idea of such an office

was developed initially by Essex County Crown Attorney Denis Harrison and Staff Sergeant

Alfred Oakley of the Windsor police. Central to the design, implementation, and day to day

functioning of such a Court Services office is the co-operation of the Crown, the Police, the

defence bar and the Bench. Such widespread co-operation ensures that Court Services plays

an important role in the smooth and efficient flow of cases through the criminal justice

system.

At the time that the Court Services concept was developed, the County of Essex

found itself facing a 17 month backlog in scheduling criminal cases. The cost of

administering criminal justice under such conditions was enormous. However, upon close

examination of the conditions prevailing at the time, it was discovered that the courts were

not the principal cause of the unacceptable 17-month backlog. Instead, the backlog was

found to be primarily a function of poor case management on the part of the Crown and

Police, and poor communications among the principal participants in the criminal justice

system, namely the Crown, the defence bar and the police.

l
See the Zuber Report at p. 232-234.
 -482-

The Court Services concept was therefore designed to remedy the case management

ills and poor communication which had been largely responsible for the lengthy backlog in

Essex County Courts. Part of the case management difficulty facing the administration of

justice in Essex was that the police were not the ones who managed the movement of any

given case through the system. This was the duty of the Crown Attorney. On the other

hand, the police were the ones that generated most of the documentation found in any given

case file. Efficient management was therefore hampered by elements of control over any

given file residing in two separate and independent bodies, the Crown's office, and the

police force.

There are fifteen different police forces in Essex County. These various police forces

were understandably reluctant to surrender the control of their original documentation with

respect to any file to the Crown Attorney's office. Therefore the Crown Attorney's office,

charged with ensuring that a case moved efficiently through the system, had no control over,

or easy access to the files for the cases they were supposed to be managing.

The Court Services concept resolved this file management and control difficulty in

two ways. First, the office was set up in the courthouse adjacent to the Crown Attorney's

office, but was run by senior police personnel as an entity independent of both the various

police forces operating in Essex County, and the Crown Attorney's Office. All original

documents relating to a given case went to the Court Services office to be filed and held in

conditions of controlled access. The only original documents not in the file would be those

working copies needed by investigators. Case files were, therefore, physically much more

accessible to Crown Counsel who guided the cases through the courts. On the other hand,

police officers were more comfortable surrendering original documentation to the control

of other senior police personnel, who would retain their independence from the Crown

Attorney's office.

The second step in resolving the difficulty of split control over a case was to involve

the police more directly in case management. Again, this was accomplished through the

vehicle of Court Services. In the past, police forces in Essex County had been essentially
 -483-

reactive to any requests by the Crown for particular action on a given case. Further, any

requests from the Crown would typically be handled by an investigating officer who very

often would have a full plate of other investigative duties to perform as well. With the

establishment of Windsor Joint Forces Court Services, however, there became available a

group of senior police personnel whose full time job it was to take the initiative in case

management. Court Services officers have no investigative duties to perform, are trained

by the Crown in case management, and operate daily under the guidance, and with the

assistance, of the Crown Attorney's office.

For example, Windsor Joint Forces Court Services is now very directly involved in

charge screening, which is traditionally a Crown function to be discharged as part of the

proper management of a criminal file. Court Services conducts charge screening in the

following manner. The investigation of a crime takes place in the usual way by the police

force in Essex County having jurisdiction. When the investigation is complete and a charge

or charges are ready to be laid, the investigating officer delivers to the Court Services office

the entire investigative file, and a fully drafted but unsworn information. Court Services

officers, who have been trained in this respect by the Crown Attorney's office, then review

the file and the information, in consultation with Crown counsel where necessary, to ensure

that the charge or charges being laid properly reflect the offence or offences disclosed by

the evidence. This permits the Crown through the Court Service officers to ensure that

there is, for example, no "over charging" of an accused person. Any difficult or unusual

cases are reviewed directly by Crown counsel, who is at all times available to oversee the

process.

Once a review of the charge is complete, the Court Services officer involved in the

review then swears the information as modified, if necessary, and the criminal process is

formally commenced. For accused persons arrested prior to the information being sworn,

the process differs little. Court Services also controls the holding cells in the courthouse.

Therefore, following a review of the file which is dropped off by the investigating officer

when the arrestee is placed in the holding cells, the Court Services officer swears the

information and is immediately ready to go into court for a bail hearing. Naturally, such
 -484-

a process benefits an accused person who has been arrested and held in custody, as the
important question of judicial interim release is determined on the basis of charges that
have been reviewed to ensure that they properly reflect the incident in issue.

Windsor Joint Forces Court Services is directly involved in case management in other
ways. One of the principal complaints in Essex County prior to the existence of a Court
Services office was that disclosure was not sufficiently comprehensive to permit Crown and
defence counsel to resolve a case before trial or preliminary hearing. In response to this
complaint, the police personnel at Court Services set up a system of disclosure for all of the
material received by them from the investigating officers on the case.

The disclosure system set up by Windsor Joint Forces Court Services works as
follows. As stated above, all original documents pertaining to any given case go to the
Court Services office immediately prior to a charge being laid. When a charge is laid, and
counsel retained, if disclosure is needed, defence counsel must submit a written request for
disclosure to the Court Services office. Upon receipt of this request, the Court Services
officers, again in close consultation with the Crown where necessary, vet the file, removing
any information that is not suitable for disclosure. For example, the addresses and phone
numbers of all witnesses are initially removed. The original documents are then
photocopied by Court Services personnel and the package of photocopies requested may be
picked up by defence counsel or his or her articling student. This is known as "Level I"
disclosure. The original documents of course remain in the Court Services office. Each
Level I disclosure package will typically contain photocopies of the charging document, a
summary of the offence, all original statements, occurrence reports, photo lineups, and
supplementary reports. C.P.I.C. criminal record information is typically not available for
Level I disclosure.

Windsor Joint Forces Court Services charges defence counsel a fee of $15.00 to cover
the cost of preparing the disclosure package. The fee is billed automatically to defence
counsel's office through a County-wide computer billing system. This fee is recoverable
from Legal Aid as a disbursement. About 80% of such fees are ultimately recovered from
 -485-

Legal Aid. Unrepresented accused, of which there are very few in Essex County, pay the

fee themselves. Court Services has been charging for disclosure since its inception in 1987,

and this practice has led to very few complaints, as counsel are generally pleased with the

quality of disclosure.

The flat fee charged for disclosure does not cover the entire cost to the police of

providing personnel for the Court Services office. However, these additional costs to the

police are more than offset by savings realized from cancelling police witnesses when

resolution discussions following full disclosure narrow the issues in any given case.

Level I disclosure is typically available very quickly. This is because the investigating

officer leaves the entire file at the Court Services office once the charges are laid, and

disclosure is handled by full time Court Services officers, who have no investigative duties

to perform. Further, all officers working for the various Essex County police forces prepare

their investigative reports, occurrence reports, and witness statements on pre-printed forms

suitable for immediate disclosure. Thus there is no delay or cost prior to disclosure to

prepare will says or other secondary documents from police notebooks.

In some cases, the investigative file originally delivered to the Court Services office

when a charge is laid is not complete. For example, as investigations may well continue

after arrest, further witness statements may arrive or forensic test results may come in.

Each file in the Court Services office is designed to track material that arrives later;

notations must be made of both the date the additional material is received, and the date

that it is disclosed to the defence. Careful file management therefore ensures that there are

no failings in the Crown's ongoing duty to disclose relevant information.

Early and consistent charge screening and rapid disclosure are only two aspects of

the approach taken to managing the criminal case load in Essex County in a forward-looking

way. Further steps are taken with the co-operation of the local defence bar. When each

Level I disclosure package requested by defence counsel is available, Court Services so

advises defence counsel by form letter and in the same letter advises when a meeting with
 -486-

the Crown is necessary "to properly resolve pre-trial issues and to minimize the waste of

valuable court time." As stated above, defence counsel need not attend in person to pick

up the disclosure, and need not discuss the case immediately with the Crown. However,

defence counsel is required to contact the Court Services office and arrange a meeting

within 15 days of receiving Level I disclosure, when advised that a meeting is necessary.

The Crown Attorney's office in Essex County specifically designates one senior

Crown counsel to be available all day, every day, for purposes of disclosure and resolution

meetings. These duties are shared by four senior Crown counsel, each of whom is the

available "Disclosure Crown" one week in four. Defence counsel is expected to attend at

the meeting prepared to discuss the case in every respect. In return, defence counsel can

expect a meeting with senior and experienced Crown counsel, with a good grasp of

appropriate ranges of sentence, who is likewise familiar with the case, has as much time to

spend resolving issues as is reasonably required, and who is prepared to resolve as many

issues as can responsibly be resolved without trial, including plea and sentence. Crown

counsel at these meetings is also prepared to accord an accused full benefit for an

appropriate early plea of guilty. It is not unusual for defence counsel to be able to meet

with the designated Crown and resolve many cases at once.

Crown counsel is also available to discuss resolution of cases without an appointment,

and without disclosure. In these situations, Crown counsel will simply sign out the original

file from the adjacent Court Services office, and discuss the matter with defence counsel.

Such immediate access to the original file by Crown counsel often facilitates resolution

without the cost of reproducing and formally disclosing the material in the file prior to a

resolution meeting.

At the meeting with Crown counsel following Level I disclosure, defence counsel may

request what is known as Level II disclosure. Level II disclosure is any further request that

may have arisen from review by defence counsel of the Level I disclosure material. Often,

for example, there may be a request for the address and phone number of a witness whose

statement is disclosed. Upon such a request being made, Court Services officers contact the
 -487-

witness directly, and if the witness wishes to speak to the defence, the address and phone

number are provided.

Windsor Joint Forces Court Services standard procedures accommodate the vast

majority of criminal cases arising each year. Where, however, there is an unusually large

or complex case, the Crown Attorney's office assigns the case to a particular Crown counsel

very early. Crown counsel assigned to the case then works with Court Services in meeting

the individual needs of the case, starting with screening and disclosure, and continuing

through to final resolution.

As can be seen from the foregoing, Windsor Joint Forces Court Services is the hub

of an extended, ambitious, and integrated case management system. However, effective final

resolution of cases depends entirely, of course, on the co-operation of the judiciary. In this

respect the judiciary in Essex County has responded most favourably. With well organized,

early and complete disclosure, and frequent, early and comprehensive resolution discussions,

there are, as may be expected, many cases ready for early plea and disposition. The Essex

County judiciary has accommodated this resolution process by holding itself available to the

greatest extent possible, taking pleas of guilty and imposing sentence, very often on short

notice, and even going so far as to schedule such hearings before and after regular court

hours.

Apart from early and effective resolution, Windsor Joint Forces Court Services plays

a key role in those cases that do go to trial. Again, this role involves them in managing a

case in a forward-looking way, anticipating problems that can arise, and planning in advance

to avoid them. For example, when the backlog in Essex County was 17 months and there

was no case management, it was in the interests of an accused person to insist on a trial, and

wait for the trial day to see what witnesses would show up 17 months after the events in

issue. Often police effort in ensuring witness attendance was lacking, due to the demands

of more current investigations. Therefore, scheduled trials would collapse when a key

witness failed to attend. Not only was the public interest in prosecuting cases frustrated, but

valuable Court time would pass by unused, civilian witnesses who did attend would be
 -488-

inconvenienced, police agencies would accrue overtime costs for their witnesses to no effect,

and accused persons would be further encouraged to avoid early resolution and take their

chances at trial.

Court Services remedied this type of difficulty by assuming primary control over such

matters as the attendance of witnesses, or "witness management". Proposed witnesses are

vetted and eliminated, as issues are narrowed in pre-trial discussions, and Court Services

takes steps well in advance, with co-operation from investigating officers where necessary,

to ensure that those witnesses who are not required to attend are so advised, and those who

are required are subpoenaed and will attend. Cancelling police witnesses following

successful resolution discussions also creates considerable savings for the various Essex

County police forces. These savings more than offset the cost to the police of running the

Court Services office.

When a key witness is determined to be unavailable, Court Services advises Crown

counsel. Where Crown counsel concludes that the prosecution cannot continue, the charge

is withdrawn early and Court Services ensures that all other witnesses are informed that they

are no longer needed. Court Services also ensures that the victim is adequately informed

of such developments in the case, by Crown counsel where advisable. Early cancellation

of unsustainable prosecutions in this way therefore permits the Court time reserved for the

cancelled trial to be re-allocated.

Efforts such as witness management by Court Services facilitate responsible contact

with the victim, and ensure that both Crown and defence counsel can count on a trial either

taking place when it is scheduled to do so or being cancelled in advance. These efforts

minimize both cost and inconvenience. They also discourage any strategic tendency by

accused persons to avoid early resolution discussions where they are otherwise appropriate

on the merits of the case. Crown counsel can take a firm stand in opposition to any

resolution proposed by an accused person at the courtroom door, because he or she can be

confident that all of the witnesses necessary to prove the case are waiting inside. Defence

counsel likewise can count on the earliest resolution being the most favourable, with
 -489-

resolutions at the courtroom door being much less so. Naturally, some last minute

resolutions still do occur, as some accused persons seek to put off an unpleasant eventuality

as long as possible. However, the efforts of Windsor Joint Forces Court Services assist in

keeping such last minute resolutions to a minimum in cases that ought best to be resolved

early.

Windsor Joint Forces Court Services and the surrounding apparatus for the early

resolution of cases has produced dramatically successful results in Essex County. Court

Services was set up in 1987 and in its first year of operation the backlog of cases in the

criminal courts was reduced from 17 months to 9 months. In that first year overtime costs

for officers, invariably incurred during their attendance at court to testify as to matters they

had investigated, were cut by 20%, or some 10,000 person hours. Within three years of

commencing operation, the backlog was cut further, to 4 months.2 As a result, when the

Askov decision was rendered by the Supreme Court of Canada in October, 1990, resulting

in large numbers of charges across the province being stayed for unreasonable delay, the

courts in Essex County encountered no difficulties in this respect. For example, three of the

most heavily affected jurisdictions in Ontario had totals of 8,183, 7,510, and 6,971 charges

stayed, withdrawn, or dismissed in the 12 months following the release of \he. Askov decision.

During that same time period in Essex County the total number of cases stayed, withdrawn

or dismissed was fourteen.3

The success achieved in the administration of justice in Essex County by the Court

Services system has not been at the expense of support for the system from either the police

or the defence bar because, globally speaking, the system produces just results. The

importance of just outcomes cannot be overrated. Police officers have surrendered control

over much of their cases to Court Services, and have less input into the final charges to be

laid, in an effort to eliminate any perceived over charging. Yet the police forces in Essex

County nonetheless support the Court Services system because of the high rate of guilty plea

2
" Essex County Court Services Office statistics

3
The source of these statistics is the Ministry of the Attorney General's ICON (Integrated Courts Offences
Network) data base.
 -490-

resolutions, (which means both effective law enforcement and savings in police court costs)

and the low rate of trials lost because of poor management. Defence counsel, on the other

hand, are likewise supportive because of the full disclosure available, the reasonableness and

comprehensiveness of early resolution, and because from the perspective of their own

practice, early resolution of cases tends to be more profitable.

* * *

The Committee applauds the results achieved by Windsor Joint Forces Court Services

over the years. Essex County is a ground-breaking example of how justice can be delivered

in a co-operative and cost effective manner. While the Essex County model is clearly

worthy of emulation wherever possible, the Committee recognizes that varying practices in

other jurisdictions may make the unmodified adoption of that model quite impractical. In

addition, the fee charged for disclosure is inconsistent with the Committee's

recommendation on point, although the general idea of cost recovery from the Attorney

General is not. Therefore, the Committee has endeavoured to distil and set out the five

general principles that have contributed to Essex County's success. They are, in essence,

the five principles essential to the sound organization and management of the criminal

justice process identified by the Committee in Chapter I of this Report. It is hoped that the

discussion of these five general principles which follows will assist other jurisdictions in

achieving the objectives Essex County has achieved so well, while remaining as sensitive as

possible to prevailing local conditions and sound local practices.

The first, and in the Committee's view, most important principle accounting for Essex

County's successful system of early resolution is full co-operation and involvement among

all of the parties involved in the administration of justice: the police, the Crown, the defence

bar and the judiciary. The support of all of these groups was essential in getting the Court

Services system off the ground. The system was not imposed on any one of these groups,

but was designed and implemented in a fully consultative way. Full co-operation from the

police, the bar and the bench also remains essential with the system up and running. As a

review of the system demonstrates, there are co-operative dependencies in virtually every
 -491-

aspect of the system's practical day to day functioning. In effect, each of the police, the

Crown, the defence bar and the judiciary independently possesses the power to undermine

the system's continued viability. Therefore, the continued commitment and active co¬

operation of each of these groups, none of whom can be controlled by any of the others, is

essential. Such co-operation and commitment must be maintained through clear and

ongoing communication and consultation among the police, bar and bench wherever

necessary.

The second general principle contributing to the success of the Windsor Joint Forces

Court Services system has been the willingness of all of the co-operative participants to

change, to some extent, the ways in which they have traditionally carried out their respective

functions. The police have relinquished some control over their cases to Court Services

personnel. (The fact that Court Services officers are senior police personnel makes this

relinquishing of control more acceptable.) Crown counsel have had to adapt to early and

full disclosure, and have been obliged to spend more time preparing for and engaging in

early resolution, rather than trial preparation. Likewise, defence counsel have had to adjust

to spending much more time with a client's file in the early stages. And finally, the judiciary

have adjusted to a regime where early pleas and joint submissions are increasingly common.

The participants in Essex County's early resolution system have, however, been

willing to change more than simply the concrete way in which they conduct their roles as

police officers, Crown counsel, defence counsel or judges. The participants have also been

willing to approach the administration of justice from a unique perspective that preserves

the fundamental need for fairness while at the same time meeting the great need for

efficiency. Simply put, the participants have been willing to approach their designated

functions in a forward-looking way. They have not been content to simply react to demands

placed upon them by the case. They have been willing to take initiatives to resolve cases

early which have not traditionally been taken by many, recognizing that early resolution can

be both just and efficient. In so doing, the participants have accordingly placed less
 -492-

emphasis on adversarialism and more emphasis on co-operative case management.

However, they have done so without compromising the interests that they represent.

Being forward-looking in the administration of justice for the Essex County police

forces has meant, for example, spending greater time and resources overseeing cases after

the investigation is complete: anticipating and avoiding problems that might hamper the

prosecution before they arise, rather than waiting for the Crown counsel's direction, and

doing only what the Crown insists is necessary, often when a particular problem is already

well out of hand. Naturally a forward-looking stance such as this means that any tendency

for Crown counsel and police officers to view each other as adversaries with conflicting

interests and divergent objectives must be overcome.

A forward-looking approach to the administration of justice for Crown counsel in

Essex County has meant, for example, discussing anticipated problems in a prosecution, and

proposed solutions, with the police wherever necessary. It means devoting time to ensuring

that defence counsel has full disclosure as early as reasonably possible, so that meaningful

resolution discussions can likewise occur early. It means familiarizing oneself with the

prosecutions at hand early in the proceedings, and taking a realistic view of both the

strengths and weaknesses of a case. It means not hiding behind an adversarial posture, but

rather participating co-operatively in meaningful resolution discussions. And it means taking

reasonable positions on issues to be resolved, according the accused as much benefit for

early resolution as the law and the circumstances of the case will permit.

A forward-looking approach to the administration of justice for defence counsel in

Essex County has meant, for example, devoting time and effort to one's client's case very

soon after the charge is laid: acquiring disclosure diligently, and carefully reviewing it right

away. Like Crown counsel, it means realistically assessing the case against one's client,

looking closely for gaps in the evidence or possible defences, but likewise acknowledging the

actual strengths of the Crown's case. Again, like Crown counsel, it means leaving

adversarialism for the courtroom, and engaging co-operatively in comprehensive resolution

discussions, recognizing always the limits that the circumstances of the case place on
 -493-

responsible position-taking. Approaching a case in this manner does not mean sacrificing

the interests of one's client. Quite the contrary, it means being vigilant at the early stages

of a case to ensure that if the client's best interests lie in an early resolution, those interests

are fully served.

A forward-looking approach to the administration of justice for the judiciary in Essex

County has meant, for example, assisting in appropriate ways to encourage early disclosure

and resolution discussions between counsel. It means participating, within the limits of

appropriate judicial conduct, in resolution discussions to assist in narrowing issues. And it

means facilitating the early final disposition of cases by being available to take pleas and

by giving joint submissions sufficient weight so as to ensure, without sacrificing the interests

of justice in any particular case, that early co-operative resolutions are encouraged.

The fourth general principle contributing to the success of Essex County's early

resolution system is its comprehensiveness. The co-operative and forward-looking attitudes

of the professional participants in the criminal justice system have been applied to a system

that comprehensively covers the entire range of out-of-court pre-trial procedures in an

integrated way. Charge screening, disclosure, and resolution discussions are all either

accounted for or facilitated through Windsor Joint Forces Court Services. In the

Committee's view, it is essential that any reform of pre-trial out-of-court practices recognize

that these three tasks are very closely interrelated, and that changes to the manner of

accomplishing one such task bear little chance of improving case management without co¬

ordinated attention to the other two.

For example, effective charge screening facilitates resolution by weeding out

unnecessary charges. It also streamlines disclosure. Full and early disclosure in turn

permits more wide ranging and informed resolution discussions. Early and regular

resolution discussions also assist in streamlining ongoing disclosure requirements. And

ultimately, broad-ranging, prompt, and informed resolution discussions lead to prompt and

just outcomes in criminal cases.

 -494-

On the other hand, without charge screening, any disclosure system designed would

necessarily have to cope with greater volume. Without charge screening, there would

likewise need to be a greater number of resolution discussions which would also tend to be

lengthier. And, full disclosure without any subsequent commitment by Crown and defence

counsel to review the material early, and to meet early to narrow issues, will do little to

improve the efficiency and fairness of the criminal justice system. There would still be too

many issues tried in court that could have been expeditiously and fairly resolved much

earlier, and with much less difficulty. Therefore, the three activities of screening, disclosure

and resolution discussions must be seen by all participants as component parts of a

necessarily integrated method of managing cases prior to trial.

The fifth and final key to the success of the Essex County early resolution system has

been a willingness to commit resources to it at the outset. The police in Essex County bear

the cost of the personnel in Court Services. For a jurisdiction with a population of

approximately 330,000,4 this has meant a full time staff of 9 people. The Crown Attorney's

Office, with 15 Crown counsel, has provided the equivalent of one senior Crown counsel

devoted full time to screening, disclosure, and resolution. In addition, the Court Services

office is located in space provided in the Courthouse, which is essential for maintaining close

contact with the Crown Attorney's office, and facilitating ready access to case files for

resolution discussions, controlling the holding cells, and conducting bail hearings.

Historically, this initial and somewhat speculative commitment of resources to the Crown

and the police was difficult to obtain in Essex County. But, without resources committed

at the outset, the Court Services system could not have begun to develop into the successful

operation that it has rapidly become.

In a slightly different way, defence counsel have likewise been required to apply their

own resources at the outset. File review and consideration, perhaps normally done shortly

before a trial date set many months before, has had to be done much earlier to facilitate

meaningful early resolution discussions. On the occasions where early resolution discussions

4
The population for Essex County as determined by the 1991 Canadian Census is 327,365.
 -495-

are not fruitful, this may mean some additional preparation for the trial itself. Consequently

the successful operation of the Essex County system has had resource implications for

defence counsel as well.

To summarize, the five general principles that have contributed most markedly to the

success of Essex County's early resolution system are co-operation among all of the

participants, willingness to adapt, a forward-looking and less adversarial approach to case

management, comprehensive integration of all out-of-court pre-trial practices, and an initial

infusion of resources.

Maintaining the co-operation necessary to the successful operation of the Essex

County system of course requires open and ongoing communication among the police, the

Crown, the defence bar and the judiciary. But no less important to maintaining that co¬

operation are the benefits that the system affords to each of the participant groups: benefits

which from everyone's perspective more than offset the system's costs. First and foremost

is the view widely shared by all participants that cases are disposed of in a fundamentally

just manner; the law enforcement needs of the police and the community are met at no

expense to the rights of accused persons. But, in addition to being fair, the system is smooth

and efficient, and thus attractive for all participant groups. The police save great amounts

in police witness costs, which puts more officers back into the community. The Crown

Attorney's office not only handles more cases, but handles them more effectively. And, the

defence bar is able to both satisfy clients, and resolve greater numbers of cases. It is these

great benefits that lead the Committee to commend the general principles underlying the

Essex County model to other jurisdictions.

 APPENDIX L

FINANCIAL ANALYSIS OF THE COMMITTEE S RECOMMENDATIONS

I. COMMENTARY BY THE COMMITTEE

The material found in Parts II and III of this Appendix are excerpts from the

financial analysis of the Committee's Recommendations, prepared by personnel from the

Ministries of the Attorney General (Part II) and the Solicitor General (Part III). The

Committee is most grateful for the proficient and studious assistance provided by financial

personnel from these two Ministries. Without such input the Committee would not have

been able to fulfil this important aspect of its Mandate.

The nature of the Committee's recommendations has complicated somewhat the

preparation of cost estimates by Attorney General and Solicitor General personnel.

Throughout the Report, the Committee has emphasized that the recommendations are to

be implemented locally, and in a co-operative, consultative way. As discussed in the Report,

the Committee is of the view that this approach to its recommendations is essential if the

administration of criminal justice is to be as responsive as possible to the prevailing needs

in Ontario's many diverse communities. However, such an approach makes the estimate

of costs in advance of such local consultation and discussion quite difficult. Attorney

General and Solicitor General financial personnel have assiduously and most helpfully

applied themselves to this difficulty when preparing estimates, making assumptions as

necessary about the manner of implementation of the Committee's recommendations.

However inevitably it must, in the Committee's view, be recognized that cost estimates

prepared at this early stage are approximations, and despite the best efforts of the financial

analysts, are necessarily preliminary in nature. Actual costs may vary as implementation of

the Committee's recommendations is pursued in more concrete terms at the local level.

The Committee has the following views of the analyses found in Parts II and III.
 -498-

A. The Analysis Prepared by the Ministry of the Attorney General (Part II)

The financial estimates prepared by the Ministry of the Attorney General indicate

that implementing the Committee's recommendations will require up to an additional 140

Crown counsel, and 56 support staff. The total cost to the Ministry of the Attorney General

associated with implementing the Committee's recommendations is approximately 23 million

dollars. Committee members have differing views as to this estimate. One view is that it

is reasonable. Another view is that to avoid sacrificing Crown counsel's already very limited

preparation time, the Committee's recommendations will require approximately 171

additional Crown counsel, with commensurate increases in support staff and other related

spending. Further, this second estimate takes no account of increased costs associated with

prosecutions under the Provincial Offences Act. On either estimate, however, the Committee

offers the following comment.

Much of what the Committee has recommended in the area of disclosure is a direct

consequence of the Stinchcombe decision. The Committee itself endorses and agrees with

the approach to disclosure mandated by the Stinchcombe decision. In its recommendations,

the Committee has endeavoured to flesh out the Stinchcombe principles, and to devise

practical disclosure rules in accordance with the spirit of the Stinchcombe case. However

the costs associated with disclosure, estimated by the Attorney General to be approximately

10.5 million dollars, are largely a result of the Stinchcombe decision. Costs associated with

compliance with the Stinchcombe case would have to be borne by the Ministry in any event,

apart altogether from the Committee's recommendations. Accordingly, the actual cost to

the Ministry of the Committee's recommendations apart from disclosure, is, based on the

Ministry's estimates, in the neighbourhood of 13 million dollars.

 -499-

B. The Analysis Prepared by the Ministry of the Solicitor General (Part III)

The analysis of the Committee's recommendations by the Ministry of the Solicitor

General is divided into three main categories: training, disclosure, and audio/video taping.

The financial estimates prepared by the Ministry of the Solicitor General indicate that

implementing those aspects of the Committee's Report that affect the police will cost

approximately 21 million dollars. The Committee is of the view that 21 million dollars is

within an appropriate range for a preliminary estimate of this type, bearing in mind the

following comments.

The Ministry of the Solicitor General has in Table 2 provided figures totalling

approximately 2.1 million dollars, which represent the cost of providing one day of training

to police officers across the province. In the Committee's view, it is reasonable to expect

that some of the Committee's recommendations, particularly with respect to disclosure, will

require re-training for some officers in some locations across the province. Indeed the

Committee has recommended that sufficient resources be set aside to accomplish the

necessary training. It is, however, difficult to appreciate what those training costs may be

prior to local consultations that assess the need for such training in the many police forces

across the province. Accordingly, the Committee sees the estimate provided by the Solicitor

general as a prudent approximation of what training costs may involve, recognizing that

more retraining may be required in some areas than in others.

The Committee recognizes that the relatively expensive route of formal re-training

for the police is not necessarily required with respect to every aspect of its Report. For

example, the Committee agrees that an instructional video, as suggested by the Ministry of

the Solicitor General, may be both a salutary and cost effective educational step to be taken

in response to some of the Committee's recommendations. The Ministry of the Solicitor

General estimates indicate that such a video can be produced for approximately ten

thousand dollars. For many aspects of the Committee's Report, including those parts that

reiterate settled principles and practices, an instructional video would be sufficient for most
 -500-

officers, and would thereby accomplish the Committee's objectives without any further need

for retraining. To take another example, much of what the Committee has recommended

can be satisfactorily conveyed to the police economically by inclusion in the Police Standard

Manual, as suggested by the Ministry of the Solicitor General, in the form of directives,

guidelines, or policy instructions. Many recommendations could also be addressed in routine

briefings, or in regularly scheduled classes on the subject for recruits at the Ontario Police

College.

The figures on disclosure provided by the Ministry of the Solicitor General are, in

the Committee's view, responsible preliminary approximations, keeping in mind, as stated

above in the discussion of the Attorney General's disclosure cost estimates, that much of

what the Committee has recommended is mandatory after Stinchcombe in any event.

Bearing in mind the impact of the Stinchcombe decision, the preliminary estimate of the

costs for the police attributable to the Committee's recommendations alone may well be

somewhat less than 20 million dollars.

The Ministry of the Solicitor General has provided estimates relating to the

installation of video technology in both an interview room and a breathalyser room at most

police stations across the province. The Committee is of the view that in most police

stations, two video equipped rooms, although perhaps desirable, may not be necessary.

Impaired driving or "over 80" investigations turn, for the most part, not upon what an

accused says in a statement, but rather, upon the analysis of an accused's breath, and upon

sobriety tests performed by an accused. In the event that an accused person wishes to make

a statement that it is appropriate to record, it is, in the Committee's view, quite proper to

complete the breath and sobriety tests that must be completed within a limited time, and

then take the accused to the interview room to tape the statement. Accordingly, the 5.5

million dollars plus administrative support costs in the Ministry of the Solicitor General's

estimates that are necessary to put video tape equipment in every breathalyser room, do not,

generally speaking, flow from the Committee's recommendations. Implementation of video

taping at the local level may well demonstrate that many locations do not need two video-
 -501-

equipped rooms. This reduces somewhat the preliminary estimate of the costs to the police

of the Committee's recommendations, to the neighbourhood of 15 million dollars.

It must be recognized, however, that demand on video equipment may vary greatly

from station to station. Or, following local consultations, it may be desirable for police

services in a given geographical area or jurisdiction to share video equipment. Either of

these contingencies may require a particular station to be equipped with more than one

video room. Accordingly, the estimates of the costs to install video equipment in both

breathalyser rooms and witness interview rooms is helpful for future discussions around

implementing the Committee's recommendations.

Finally, the Committee is of the view that when assessing the cost implications of its

recommendation with respect to video taping, it is necessary to keep in mind that such a

practice has great potential for savings in police costs. As discussed in the main body of this

Report, video taping has great potential to encourage pleas of guilty, and to discourage

lengthy voir dires on issues such as voluntariness and the right to counsel, all of which

translates directly into savings of witness costs for police forces. The Committee is confident

that the costs to the police of video taping can be more than offset by the savings to the

justice system that are realized through the more prompt and efficient resolution of cases

with a minimum of courtroom proceedings.

 -502-

II. FINANCIAL ANALYSIS OF THE COMMITTEE S RECOMMENDATIONS

PREPARED BY THE MINISTRY OF THE ATTORNEY GENERAL
A. Screening

Recommendations made by the Advisory Committee will increase, significantly, the

number of criminal proceedings that will require the Crown to undertake an extensive
screening of charges at an earlier stage in prosecution than present practice indicates.

With reference to the specific recommendations related to the screening of charges, the
Crown Attorney will be required to

• determine whether the threshold test, defined as "a reasonable prospect of

conviction" can be met;

• consider, after making the determination that the threshold test can be met, the
public interest factors solely for the purpose of discontinuing prosecution;

• assess the probative value of evidence, including the credibility of witnesses

(Screening Recommendation #2);

• determine the admissibility of evidence made available by the investigator

(Screening Recommendation #3);

• consider, where a defence is reasonably known or is brought to the attention of

the Crown, defences and remedies that might be available to the accused
(Screening Recommendation #4);

• consider the charges himself or herself in order to determine the specific

charge(s) that should be proceeded with in prosecution (Screening
Recommendation #5;

• in determining the public interest factors, consider the circumstances and

attitude of the victim, the entitlement of the victim to compensation or
restitution, the need to maintain confidence in the administration of justice, and
the availability and efficacy of alternatives to prosecution such as mediation or
diversion (Screening Recommendations 6-11).

The Criminal Law Division accepts, further, that an effective screening of charges will
continue to require the determination of whether additional investigative steps should be
taken to strengthen cases for prosecution.
 -503-

And, it is acknowledged that the duty of the Crown will be to screen, fully and according
to, although not limited to, the requirements as set out above, all charges prior to the
accused setting a date for preliminary hearing or trial (Recommendation 23).

The following analysis details the calculations in relation to these requirements and is
based on consultation with senior members of the Criminal Law Division in both the
field and planning/policy areas.

i) Under current practice, screening of the least complex charge types (Class I
charges as defined in Appendix B), such as impaired driving charges, minor
property offences, theft under, minor break and enter, minor fraud charges and
minor weapons offences is dependent upon the timeliness and completeness of
the Crown brief.

Often, the police are only able to provide a "dope” sheet or brief synopsis
immediately prior to First Appearance, thus leaving the Crown to undertake file
screening concurrent with the initial prosecution of the matter in court. In some
areas of the province the Crown brief is received in "instalments", thus requiring
the Crown to make frequent file visits before receiving the complete brief for
effective screening. As such, current practice has thus indicated that in very few
locations across the province can these least complex charge types be reviewed
to the extent that will be required prior to First Appearance.

Recommendation #24 of the Advisory Committee states that

"the police should provide to the Crown, for the purposes of screening
charges, all information necessary to ascertain if the threshold test for
conducting a prosecution has been met, and all information necessary
to assess the impact of any relevant public interest factors on the
prosecution."

Recommendation #25 requires, further, that the Crown be diligent in making

every effort to obtain all information relating to a case for the purpose of
effective screening.

Assuming, therefore, that in most cases the Crown can expect to receive a
complete brief, in advance of the First Appearance, and where no unusual
complexities
regarding the charges exist, it is estimated that the least complex charge types
would require, on average, a minimum of 15 minutes to undertake an effective
screening of charges.

Statistics indicate that Class I charge types represent 59% of the total caseload
volume.
 -504-

Using charges received for the period January 1, 1992 to April 30, 1992 and
prorating these figures, approximately 384,670 Class 1 charges will require, on
average and apart from any exceptional considerations, screening efforts
throughout fiscal 1992-93.

It is recognized that in a certain proportion of the caseload for the Class I

charge types, initial material prepared by the police for the Crown brief is
relatively standard and complete, and, as such, will permit an initial screening
to be accomplished in a shorter time frame. Examples include the impaired
driving charges, and many of the theft under charges. The Criminal Law
Division accepts that, by and large, screening of these charges is already
occurring in many jurisdictions following the 1990/91 infusion of 'Askov"
Crown resources.

For the remaining portion of the caseload represented by the Class I charge
types, it is estimated that in approximately 50% of this caseload will the
requirements for screening have additional workload implications for the Crown.
Using the 15-minute minimum, this results in an additional 48,083 Crown hours
(28 FTE Crowns).

In those cases where it has been determined that charges be withdrawn or

diverted, the Crown Attorney must contact the investigating officers, associated
justice officials and, possibly, the victim to advise. This effort may impose
additional time requirements and therefore could extend the time estimated for
screening these charges.

ii) In the more complex charge types, such as serious assaults, major fraud, sexual
assaults, serious break and enter, and robbery (Class II charges as defined in
Appendix B), the Crown must review a greater volume of material resulting from
the police investigation; documents such as witness statements, exhibits etc.

In many cases, there is considerable work involved for the Crown in order to
"patch holes" in the brief and supplement the information base before an
adequate and complete review of the charges can be undertaken.

The present practice for screening the Class II charge types, again assuming an
exacting review and consideration of the case, and assuming that the Crown
brief is relatively complete and there are no unusual complexities in relation to
the charges, would require on average a minimum of 60 minutes.

Crown discussions with victims in many of these cases will generally follow this
preliminary file review, and any additional review of supplementary documents,
such as forensic reports and transcripts that would come from other sources
 -505-

beyond those included in the Crown brief as provided by the police, should not
be considered part of the initial screening process.

Ministry statistics indicate that the Class II charge types represent 15% of the
overall caseload volume (approximately 96,137 charges for 1992/93).

Again, in only 50% of these cases, such as the sexual assault and robbery cases,
are Crown offices able to dedicate a senior, experienced Crown to adequately
screen the Class II charge types. For the most part, this initial screening is for
the purpose of case assignment. Therefore, for the 50% of the Class II caseload
where intensified screening efforts will be required, an additional 48,068 Crown
hours (28 FTE Crowns) represents the additional resource requirements to meet
this increased workload.

iii) The most complex charge types, such as homicide, major fraud and serious
weapons and violent offences (Class III charges as defined in Appendix B), will
generally require that a Crown Attorney/Crown Attorneys devote several days
to complete an effective initial screening. In these cases, the investigation leading
to the laying of charges has been lengthy and has generated a great deal of
documentation. The Crown Attorney may also combine file review with a
meeting with the investigating officials in order to clarify and/or supplement the
case information.

Such charges, while imposing the most significant level of review and
consideration for the Crown in undertaking any screening effort, represent the
smallest percentage of the overall caseload. Further, these are specifically the
charge types that the Crown has been effectively screening in the past; albeit at
the expense of fulfilling requirements in many other activity areas.

Therefore, while minimal incremental additional efforts are estimated for these
charge types in the overall impact of the new screening requirements, it is
recognized that other activity areas will continue to be under-resourced as a
result.

In summary, an additional 96,151 Crown hours (56 FTE Crowns), represents

the overall workload implications for the Crown Attorney System to effectively
screen all charges prior to setting a date for preliminary hearing or trial

B. Disclosure

Recommendations made by the Advisory Committee are expected to result in additional

operating costs to be borne by the Crown. These costs are detailed in a subsequent
section of this report.
 -506-

In terms of workload and resourcing impacts, it must first be noted that, at present,
review by the Crown of the file for disclosure purposes is minimal.

i) For Class I charge types, this report assumes that a file review for disclosure
purposes is part of the "charge screening" process with the related costs captured
under Heading A above.

There may be a small number of Class I charges where additional disclosure

efforts are required in order to comply with the recommendations of the
Advisory Committee. For example, the majority of impaired driving charges
routinely proceed to trial with a significantly higher disclosure request rate than
other charge types in the Class I charge category. As new defences arise,
information not previously considered relevant, and therefore exculpatory, results
in additional disclosure requests. Estimating that in one-third of the Class I
charge types an additional 15 minutes will be required to satisfy these additional
disclosure requests, 32,056 additional Crown hours (19 FTE Crowns) may be
required.

If, however, the Crown can be considered only a conduit for these disclosure
requests and follow-up, it is submitted that the most effective method for
coordinating these requests and directing any further investigation is by way of
a senior police official, with significant rank, working in the Crown office. At
a resource cost of approximately $60,000 salary plus benefits and some
additional secretarial support, the need for the additional Crown resources
would be minimized.

ii) With respect to the Class II and Class III charge types, the Criminal Law
Division expects a significantly greater resource requirement. In light of the
recent decisions in Stinchcombe and, most particularly in relation to the
Advisory Committee's Recommendation #29 stating,

"The Committee recommends that section 1(c) (vii) of the Code of

Offences, a Schedule to Regulation 791 under the Police Services Act,
R.S.O. 1990, c. P.15 be amended to read as follows...

fails to report anything that he knows concerning a criminal or other

charge, or where a charge is laid fails to disclose to the officer in charge
of the prosecution or the prosecutor any information that he or any
person within his knowledge can give for or against any prisoner or
defendant"

there will be considerable additional workload requirements for the Crown in

order to fully review files to ensure that disclosure can be fully made, as well as
 -507-

to complete the necessary administrative tracking in cases where disclosure is

ongoing.

Often in Class II and Class III cases, where an O.P.P. Criminal Investigations
Branch investigation has taken place resulting in a great volume of material in
the police files (usually occurrence reports), many of the documents have not
traditionally been included in the Crown brief It now appears essential for the
police to include the entire file documentation in the Crown brief

The first effect of this practice will be to greatly increase the volume of reading
for the Crown with respect to the case for prosecution. The second effect will be
the due diligence duty on the Crown to meet with the police to make enquiries
as to any identifiable or potential omissions from the brief. The third effect will
be the requirement to respond to additional defence requests for disclosure and
the fourth effect will be the potentially daunting task of reviewing boxes of
material that the police and Crown may have previously determined as
irrelevant, should the defence request require additional disclosure, and should
the Crown have the ultimate duty to read it for the purpose of fulfilling the
disclosure requests. Two broad approaches have been identified in relation to
these tasks:

The first approach casts the duty on the Crown to undertake these
additional tasks and will therefore have much greater resource
implications. It is conservatively estimated that 1 full day in many of the
Class II and Class III charge types would represent the additional
workload. This approach results in an overwhelmingly high number of
additional Crown hours.

The second approach casts the duty on the Crown to provide written
disclosure only in relation to that portion of the material that appears
relevant. Beyond the information deemed relevant, the Crown's
obligation would be to provide access to all other material and as such
the duty would fall to defence counsel to read the remaining content of
the police files.

This second approach relies on the Advisory Committee's Draft Disclosure

Directive Recommendation #14 which states,

"Subject to Crown counsel's discretion as to relevance, which is

reviewable by the trial judge, counsel on behalf of the accused or an
unrepresented accused may upon request inspect the investigative
agency's files in relation to the offence. The particularity of the defence
request is relevant to the exercise of the Crown's discretion to permit
access to the file..."
 -508-

If such an interpretation of the duty was found, this would reduce the estimate
of Crown resources considerably.

It is estimated that an additional effort of 30 minutes for the Class II and Class
III charge types, undertaken at the same time as the screening of the complete
Crown brief, would represent the additional workload. This estimate equates
to 51,538 additional Crown hours (30 FTE Crowns).

Workload for the Crown Attorney System will also increase in those cases where
new evidence arises and the resultant investigation, interviews, and
documentation by the Crown must be reproduced for the defence bar to meet
disclosure requirements. Examples would include medical/forensic reports
frequently associated with assault matters. In this regard, support staff
requirements are built into the overall resource requirements based on a 0.4:1
ratio of support staff to total Crown resources required.

C. Resolution Discussions

Recommendations made by the Advisory Committee will expand the

duty/requirement of the Crown to more formally engage in resolution
discussions as part of the new pre-trial practices at an early stage of the
proceedings. One Disclosure Recommendation states,

",that apart from cases in which the accused is in custody, or lengthy or

complex cases, the Attorney General should require the completion of
disclosure and the conduct of resolution discussions before the setting of
a date for a preliminary hearing or trial."

At present, in the most complex and serious cases, the formal pre-trial hearing
will often serve as the resolution discussion meeting. Additional case screening
and disclosure may also take place. To a great extent this practice is already
undertaken by the Crown for Class III charges (e.g., all jury trials must be pre¬
tried) although, again, at the expense of other activities. No additional
workload implications have been included in the resource requirements for the
most complex charge types, but it is recognized that this will have resource
implications for other activity areas.

Resolution discussion meetings will, however, be required in the majority of

cases represented by the remaining 95% overall caseload. Resolution discussions
for these charge types must take place at an early stage in order to effectively
resolve or narrow issues and to reduce trial and court time. By and large, these
discussions currently take place in an informal fashion on the trial date.
 -509-

Taking into consideration that more effective practices in screening and

diversion, as well as early guilty pleas, may remove approximately 10-20% of the
charges from that 95% caseload volume, the resultant 75% of the Class I and
Class II charge types will require, on average, 10 minutes per resolution
discussion.

Note: The Criminal Law Division reports that experience in piloting a formal,
judicial pre-trial court in Provincial Division has indicated that, with the most
experienced judicial practitioner, 2 Crown Attorneys generally require 10 minutes
per plea, motion and/or pre-trial discussion. It is further acknowledged that the
formal, in-chambers style of pre-trial is more resource intensive than the
informal, out-of-court methods, although both are dependent upon the
participation of the judiciary in terms of the "tariff of sentencing” associated with
early versus delayed issue and/or plea resolution.

Should there become a fonnal requirement to document decisions reached

between the Crown Attorney and defence counsel at the conclusion of these pre¬
trial meetings, beyond stating them on the record in open court (Resolution
Discussion Recommendation #54), this administrative function would extend
the time required for resolution discussions, and have some associated
administrative costs.

Further, as the Advisory Committee Resolution Discussion Recommendation

#51 indicates, the Crown will be required "to consult with any victims, where
appropriate and feasible, prior to concluding any resolution discussion" and
therefore additional time will be indirectly associated with the formal discussions
in these cases.

In summary, for the caseload volume of Class I and Class II charge types,
where formal resolution discussions may be required, a total of 60,101
additional Crown hours (35 FTE Crowns) represents the workload impact for
the Crown.

Total Resource Requirements:

The total resource requirements of the Criminal Law Division equate to 140 Full Time
Equivalent Crowns. In addition to these legal positions, 56 support staff positions will be
required.

The Criminal Law Division recommends that only the more senior Crown Attorneys and
Assistant Crown Attorneys be assigned the responsibilities of screening, disclosure and resolution
discussions. This will help ensure that as many cases as possible are resolved as early as
 -510 -

possible, thereby realizing maximum savings on trial court costs. Thus, the legal staff positions
noted as resource requirements will be staffed by Assistant Crown Attorneys in order to backfill
for the senior staff.

Training and Continuing Education:

An additional $75,000 will be required in order to provide training, including all requisite
training materials, for the new legal positions, and a further $50,000 will be required for the
continuing education of existing legal staff in order to brief Crown Attorneys on the requirements
of the new pre-trial practices.

Implementation:

Various options exist in terms of an implementation strategy for the Advisory Committee's
recommendations. These options include phased implementation. This preliminary report is
based on an overall annualized costing for full implementation. At this preliminary stage no
consideration has yet been given to a phased or pilot project implementation strategy. These and
any other approaches will be explored at such time as the Criminal Law Division's formal
response is prepared.

Costs to be Borne by the Crown (Direct operating expenditures):

The Advisory Committee's Disclosure Recommendation #43 recommends

"that it is the responsibility of the police to bear all the costs (including labour,
equipment and all other costs) of providing a complete copy of disclosure
materials to the Crown Attorney. Thereafter the police will take direction from
the Crown regarding additional disclosure which will be paid for by the Attorney
General on a cost recovery basis...it is the responsibility of the Attorney General
to bear the actual material costs of disclosure to the defence."

In a report prepared for the consideration of the Advisory Committee, RCMP Officer R.
MacDonald examined the potential cost for complete disclosure packages in five common
Criminal Code offences (fraud, simple assault, break & enter, robbery and sexual assault) at
three rates of disclosure (30%, 50%, 80%). Statistics collected from three municipal police
forces established the average size of the disclosure package to be 25-35 pages.

The report assumes that the five offence types for which disclosure package information was
sought are representative of all charges proceeding to the disclosure stage. Further, the report
bases the costing on current practice with respect to the disclosure materials, without recognition
 -511 -

that the volume of material is likely to increase. Reference is made here to the Advisory
Committee's Disclosure Recommendation #43.

In view of the decision in Stinchcombe, the Crown estimates that disclosure requests will
significantly increase, similar to the expanded requirements for screening and resolution
discussions.

A disclosure request rate of 90% of the total caseload (taking into account some guilty pleas
prior to first appearance based on the record of arrest and charges diverted), assuming the
practice whereby the Crown will provide the second copy of the disclosure package for defence
counsel, and assuming a charge-back accounting practice between the Attorney General and
Solicitor General to cover the costs of this second copy, will result in an absolute cost of
approximately $ 650,000 per annum for disclosure. (90% x 563,307 charges x 25 pages x $.05
per page).

Since, in approximately 40% of Crown offices disclosure is already being provided, and as such,
the costs are currently borne by the Crown, $400,000 represents the additional cost to the Crown.

This estimate is, however, premised on optimal disclosure package production costs that may
not accord with actual costs in many jurisdictions. Furthermore, this estimate does not include
extraordinary materials such as wiretap evidence, photographic or videotape materials, or
complex cases, just one of which can involve disclosure costs to the Crown of thousands of
dollars. In this respect, an additional $750,000 is consematively estimated in relation to these
extraordinary costs. This figure is dependent upon how broad an interpretation of disclosure is
made, particularly with respect to photographs, audio and video materials.

Future Savings:

Through effective and early screening, disclosure and resolution discussions there is significant
potential for future savings in court time as a result of the narrowing of issues, increased girilty
pleas earlier in the prosecution process and a reduction in the number of witnesses required at
trial. This may translate, further, to a reduction in Legal Aid payments as trials become guilty
pleas. Finally, it should result in savings to police budgets as the number of police witnesses
required to attend at trial courts will be reduced.

In order to realize these potential savings, an initial investment of resources remains a

requirement. There are no saving estimates that can be calculated at this time. However, once
the initial investment has been made, and effective screening, disclosure and resolution programs
are put in place, savings in court time costs and the number of witnesses released can be readily
calculated.
 -512 -

The most obvious savings that may occur, if these pre-trial practices succeed in reducing the
number of cases set for trial is the capital cost of building new courthouses and appointing
additional judges and court staff. These practices could therefore result in limiting the rate of
growth in these areas of the budget.

The Criminal Law Division notes that, in terms of disclosure, the Advisory Committee's
recommendations reflect the law as recently defined in the Stinchcombe decision. In this respect,
there is little choice but to direct resources into this activity area. If not with an infusion of new
resources, existing resources will have to be reallocated from other mandated activity areas in
order to comply with the law, and to prevent backlogs from re-occurring as defence requests for
full disclosure increase, and new trial related arguments questioning compliance with disclosure
requirements are introduced.

Finally, it is acknowledged that benefits to the criminal justice system, through these pre-trial
practices, can only be realized if the judiciary is a full participant in relation to their intent and
application, and if the Legal Aid tariff can be brought into line with these changes.
 -513-

Summarv of Workload Impacts. Cost Implications and

Resource Requirements for the Criminal Law Division

SCREENING
Salaries & Wages $ 5,480,500
Employee Benefits 1,041,295
ODOE 822,075
Start-up 339,000
Accommodation 183,060

DISCLOSURE

Salaries & Wages $ 6,601,000

Employee Benefits 1,069,890
ODOE 844,650
400,000
750,000
Start-up 570,000
Accommodation 206,440

RESOLUTION DISCUSSIONS

Salaries & Wages $ 3,395,000

Employee Benefits 645,050
ODOE 509,250
Start-up 210,000
Accommodation 113,400

TRAINING ODOE $ 125,000

TOTAL REQUIREMENT $23,305,610

ANNUALIZED TOTAL $21,558,710

 -514-

Caseload Statistics

Provincial total for charges received, prorated for 1992/93 = 563,307 (does not include
NCA/FDA, Drug Traffic/Possession or other Federal Statutes).

I. Calculations - Screening

0 Class I Charge types = 384,670 charges

50% x 384,670 = 192,335 charges requiring enhanced screening
192,335 x 15 minutes = 48,083 Crown Hours
48,083 - 1700 hrs/yr = 28 FTE Crown Attorneys

ii) Class II Charge Type = 96,137 charges

50% x 96,137 = 48,068 charges requiring enhanced screening
48,068 x 60 minutes -
48,068 Crown Hours
48,068 -r 1700 hrs/yr = 28 FTE Crown Attorneys

Total Resource Requirements

(Screening) = 56 FTE Crowns
ii
1
|

II. C
&

i) 1/3 of most Class I = 128,223 charges charge types

128,223 x 15 minutes = 32,056 Crown Hours
32,056 4- 1700 hrs/yr = 19 FTE Crown Attorneys

H) Class II and Class III = 103,076 charges charge types

103,076 x 30 minutes = 51,538 Crown Hours
51,538 + 1700hrs/yr = 30 FTE Crown Attorneys

Total Resource Requirements

Disclosure — 49 FTE Crowns

III. Calculations - Resolution Discussions

75% of Class I — 360,605 charges requiring resolution discussions

360,605 x 10 minutes - 60,101 Crown Hours
60,101 -r 1700 hrs/yr - 35 FTE Crowns

Total Resource Requirements = 140 FTE Crowns

for the Criminal Law Division
 -515-

Classification of Charge Types

Class I (Least Complex)

Driving - Impaired
Minor Driving Offences
Theft & Possession Under
Breach of Release
Obstruction of Law
Minor Assault
Fraud. Trans. Under
Minor Break & Enter
Breach of Probation
Property Offences
Wilful Damage

Class II (More Complex)

Break & Enter - multiple

Theft & Possession Over
Serious Assault
Child Victim Offences
Fraud. Trans. Ch’er
Threats - Death/B.H.
Robbery

Class III (Most Complex)

Homicide
Serious Fraud
Sexual Assault - Weapon/B.H.
 -516 -

III. FINANCIAL ANALYSIS OF THE COMMITTEE'S RECOMMENDATIONS

PREPARED BY THE MINISTRY OF THE SOLICITOR GENERAL

TABLE 1
SUMMARY OF COSTS OF MARTIN COMMITTEE RECOMMENDATIONS

MUNICIPAL POLICE
OPP SERVICES TOTAL

SUBSEQUENT SUBSEQUENT SUBSEQUENT

DESCRIPTION YEAR 1 YEARS YEAR 1 YEARS YEAR 1 YEARS

Training $581,720 - $ 1,521,320 - $2,103,040 -

Audio/Video Taping 7,066,800 2,448,800 7,583,488 3,461,488 14,650,288 5,910,288

Disclosure 663,216 663,216 3,547,575 3,547,575 4,210,791 4,210,791

TOTAL $8311,736 $3,112,016 $12,652383 $7,009,063 $20,964,119 S10,121,079

Note: Disclosure figures are based on internal material cost (see Table 3).
 -517 -

TABLE 2
TRAINING COST

MUNICIPAL POLICE
OPP SERVICES TOTAL

SUBSEQUENT SUBSEQUENT SUBSEQUENT

DESCRIPTION YEAR 1 YEARS YEAR 1 YEARS YEAR 1 YEARS

Train the Trainer 15,600 - 57,330 - 72,930 -

Trainee Cost 136,920 - 133,090 - 270,010 -

Overtime 409,200 - 1,330,900 - 1,740,100 -

Video 10,000 - - - 10,000 -

Disclosure Guidelines 10,000 - - - 10,000 -

TOTAL 581,720 0 1,521320 0 2,103,040 0

The number of days to train the officers on the new Disclosure Guidelines has not yet been determined. The training cost, therefore,
reflects the estimated cost of a one day training course. Each additional day of training will cost slightly higher then the cost of the
one day course.

ASSUMPTIONS:

• Police Services will be given a minimum of a 2 to 3 month lead time before implementing new Disclosure
Guidelines.
• There are 19,335 police officers in the province of which 17,401 officers must be trained - 4,092 OPP officers
and 13,309 municipal officers. Approximately 10% of the officers perform non-operational functions and
will not require training.
• It will take 3 days to train the trainer.
• Approximately 179 officers will be trained as trainers (40 OPP officers and 147 municipal police officers).
It will cost $130.00 per day to train the trainer. This cost is based on the average cost to train the trainer
by the OPP and includes accommodation, meals and travel.
• In many cases, OPP trainers will travel to detachments to train the officers whereas municipal police
Services will be able to train officers locally.
• OPP trainee cost includes $10/day lunch allowance, and travel, meals and accommodation for approximately
800 officers, mainly from the northern detachments, to attend the training course ($130/day). The trainee
cost for municipal officers is $10/day lunch allowance.
• Most officers will be attending the training course while on-duty time and will not be eligible for overtime.
However, approximately one-third of these officers must be backfilled to maintain the current level of police
services. The average overtime hourly rate for a constable is $37.50.
• Representatives from police services, in conjunction with the Attorney General, will produce a training video
and distribute a copy to each municipal police service and to each OPP detachment (approximately 300).
• The new Disclosure Guidelines will be distributed by the Police Services Division of the Ministry of the
Solicitor General and Correctional Services to all Municipal Police Services as an update to the Police
Standard Manual ($10,000).
 -518 -

TABLE 3
DISCLOSURE

MUNICIPAL POLICE
OPP SERVICES TOTAL

DESCRIPTION INTERNAL EXTERNAL INTERNAL EXTERNAL INTERNAL EXTERNAL

Class 1 Offences:
Labour 16,235 6,087 98,999 37,124 115,234 43,211
DOE 3,321 18,450 20,250 112,500 23,571 130,950

Class 2 Offences:
Labour 105,178 50,003 616,646 293,160 721,824 343,163
DOE 22,572 125,400 132,335 735,196 154,907 860,596

Class 3 Offences:
Labour 179,723 133,638 1,210,758 900,306 1,390,481 1,033,944
DOE 28,488 158,750 191,116 1,066,198 219,604 1,224,948

TOTAL:
Labour 301,136 189,728 1,926,403 1330,590 2327,539 1,420318
DOE 54381 302,600 343,701 1,913,894 398,082 2316,494

Video Tapes 235,600 235,600 916,976 916,976 1,152,576 1,152,576

Photographs 72,099 72,099 360,495 360,495 432,594 432,594

TOTAL $663316 $800,027 $3,547,575 $4,421,955 $4310,791 $5321,982

NOTES: These are projected annual costs.

Figures do not include estimates of purchasing photocopying equipment, maintenance or replacement
costs.

ASSUMPTIONS:
• Average hourly labour cost (1st constable class) $24.75 ($47,620)
• Material cost (paper): $0,045 internal; and $0.25 external

Class 1 Offences
OPP 8,200 persons and Municipal police 50,000.
® Average number of pages in Crown Brief is 7 and will increase to 8.
Labour increase to produce Crown Brief is 1 minute for 85% of cases and 5 minutes for 15% of cases; plus
labour to produce 2nd Crown Brief.
 -519-

Class 2 Offences
• OPP 16,720 persons and Municipal police 98,026.
• Average number of pages in Crown Brief is 20 and will increase to 25.
• Labour increase to produce Crown Brief is 5 minutes for 85% of cases and 20 minutes for 15% of cases;
plus labour to produce 2nd Crown Brief.

Class 3 Offences
• OPP 7,448 persons and Municipal police 50,174 in 1991.
• Average number of pages in Crown Brief is 45 and will increase to 65.
• Labour increase to produce Crown Brief is 30 minute for 85% of cases and 120 minutes for 15% of cases;
plus labour to produce 2nd Crown Brief.

Labour
Labour was calculated on the basis of: (1) increased work to produce new, expanded Crown Brief; and (2) work
to produce 2nd copy of the Crown Brief.

Video Tapes
Costs for disclosure based on tape cost (@ $2.50) plus copy time/labour (@ $2.50) for total of $5.00.

Photograph
Expected increase in demand for photographic evidence resulting in increased cost.

Not Included are costs for photocopy equipment/maintenance for police services which undertake to do
copying internally and the costs for the small percentage of cases which will involve literally boxes full of
material.
 -520 -

TABLE 4
SUMMARY OF AUDIO/VIDEO TAPING COSTS

MUNICIPAL POLICE
OPP SERVICES TOTAL

SUBSEQUENT SUBSEQUENT SUBSEQUENT

DESCRIPTION YEAR 1 YEARS YEAR 1 YEARS YEAR 1 YEARS

Accused Witness 2,985,125 93,125 3,444,388 388,388 6,429,513 481,513

Breathalyzer Rooms 2,916,675 24,675 2,637,100 70,100 5,553,775 94,775

Administrative Support 1,165,000 2,331,000 1,502,000 3,003,000 2,667,000 5,334,000

TOTAL 7,066,800 2,448,800 7,583,488 3,461,488 14,650,288 5,910,288

 -521-

TABLE 4A
ACCUSED WITNESS STATEMENT

MUNICIPAL POLICE
OPP SERVICES TOTAL

SUBSEQUENT SUBSEQUENT SUBSEQUENT

DESCRIPTION YEAR 1 YEARS YEAR 1 YEARS YEAR 1 YEARS

Cameras 930,000 - 950,000 - 1,880,000 -

Facility Set-Up 1,590,000 - 1,670,000 - 3,260,000 -

Video Tapes 93,125 93,125 388,388 388,388 481,513 481,513

Storage 372,000 - 436,000 - 808,000 -

TOTAL 2,985,125 93,125 3,444,388 388388 6,429,513 481,513

ASSUMPTIONS:

• Simultaneous province-wide implementation

• 376 sites
• Equipment @ $5,000.00
• Excludes battery maintenance and replacement costs.
 -522 -

TABLE 4B
BREATHALYZER ROOM

MUNICIPAL POLICE
OPP SERVICES TOTAL

SUBSEQUENT SUBSEQUENT SUBSEQUENT

DESCRIPTION YEAR 1 YEARS YEAR 1 YEARS YEAR 1 YEARS

Cameras 930,000 - 900,000 - 1,830,000 -

Facility Set-Up 1,590,000 - 1,235,000 - 2,825,000 -

Video Tapes 24,675 24,675 70,100 70,100 94,775 94,775

Storage 372,000 - 432,000 - 804,000 -

TOTAL 2,916,675 24,675 2,637,100 70,100 5,553,775 94,775

ASSUMPTIONS:

• Simultaneous province-wide implementation

• 366 sites
• Equipment @ $5,000.00
• Excludes battery maintenance and replacement costs.
 -523 -

TABLE 4C
ADMINISTRATIVE SUPPORT

MUNICIPAL POLICE
OPP SERVICES TOTAL

SUBSEQUENT SUBSEQUENT SUBSEQUENT

DESCRIPTION YEAR 1 YEARS YEAR 1 YEARS YEAR 1 YEARS

Administrative Support 1,165,000 2,331,000 1,502,000 3,003,000 2,667,000 5,334,000

TOTAL 1,165,000 2331,000 1,502,000 3,003,000 2,667,000 5334,000

ASSUMPTIONS:

• Management of administrative process related to the tapes, from transcribing, labelling and storing to
erasing them when recycled.
• 1 administrative person years will be required for each large detachment/site, a half person year for medium
sized detachment/site, and a quarter person year for small detachment/sites.