International Law

McNeil: The duty to disclose police misconduct records

By Jakki Warkentin

On January 16, 2009, the Supreme Court of Canada released judgment in R. v. McNeil, 2009 SCC 3, a case that looks at the Crown?s duty to disclose police records relating to findings of misconduct by police officers involved in the investigation against the accused as part of the first party disclosure package.

Constable Rodney Hackett was one of the Barrie police officers who arrested Lawrence McNeil in respect to an alleged drug transaction, as well as the Crown?s main witness in the proceedings against him. McNeil was charged with and later convicted of various drug-related offenses, including possession of marijuana and cocaine for the purpose of trafficking. Following this conviction, but before the commencement of sentencing, McNeil learned that Hackett was criminally charged with drug-related misconduct, which also resulted in internal disciplinary proceedings under the Ontario Police Services Act, R.S.O. 1990, c. P. 15. After discovering this information, McNeil brought a motion before the Ontario Court of Appeal seeking production of all documents relating to the officer?s misconduct, claiming that this material was necessary in order for him to bring forth an application to introduce fresh evidence in the appeal from his conviction. Both the Barrie Police Service and the provincial Crown in this case refused production and they were supported by the federal Crown as well.

The Court of Appeal ordered the production of the criminal investigation files relating to the charges against Hackett on the part of the third parties and afterward, Hackett plead guilty to one of the criminal drug-related charges. At McNeils? appeal, evidence of this conviction was admitted and the convictions against McNeil were set aside. The Crown never re-prosecuted him and McNeil withdrew his participation in the appeal to the SCC. The Court then proceeded with the appeal to the SCC, appointing an amicus curiae, a ?friend of the court? to provide information and assist the court in deciding the matter.

The Supreme Court of Canada confirmed the well established common law principle that the Crown must disclose all relevant information in its possession to an accused; however, they also considered the issue of whether this disclosure obligation extended to other state authorities. While acknowledging that the Crown and the police have separate and distinct roles, the SCC found that the police also have a duty to participate in this disclosure process, since it is the obligation of the police to disclose all material related to its investigation of the accused to the Crown. They act on the ?same first party footing? as the Crown, as opposed to as a third party, and the first party disclosure package that must be delivered to the Crown should contain any records that relate to findings of serious misconduct by police officers involved in the investigation where this misconduct could ?reasonably impact? on the case against the accused or relate to the investigation.

In cases where these types of disciplinary records do not fall within the realm of the first party disclosure package, the O?Connor procedure is implemented for third party production. This common law regime allows for the production of records beyond the control of the Crown and not limited to situations where third party records attract a ?reasonable expectation of privacy?, since this would result in uncertainty. The first step of this process is for the individual seeking production to show the court that the documents in question are likely relevant to the proceedings. If this is achieved, the third party may have to turn over these documents to the court for inspection. The second step entails a balancing of the competing interest at stake with consideration of the specific circumstances in the case. In order to achieve this, the court will assess the ?true relevancy of the targeted record in the case against the accused?. Charron J. explained at paragraph 20 for the court:

Implicit in the Crown?s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused?s case. Otherwise, the Crown would not have obtained possession of it (O?Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused?s interest in obtaining disclosure of all relevant material in the Crown?s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.

In general, the accused?s interest of obtaining information in order to make full answer and defence will outweigh the ?residual privacy interests? of third parties, however these privacy interests should still be considered. In order to ensure that only relevant interest is produced so that there is no unwarranted invasion on privacy, the court must make orders that are specifically designed to meet the circumstances of the case, possibly making the order subject to conditions or restrictions to the circulation of this information. This decision not only lends assistance to criminal defence lawyers, who are no longer under the obligation to obtain a specific judge?s order to obtain these types of records, and accused individuals in these circumstances, assisting them in making ?full answer and defence?, but also enhances the principle of transparency in the courts by allowing for a more free-flow of information, yet still implementing safeguards for the protection of privacy interests. By placing duties on both the police and the crown to participate in the disclosure process, the court provides for the opportunity to ?bridge the gap between first party disclosure and third party production?.

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Full post as published by The Court on January 22, 2009 (boomark / email).