McNeil: A Welcome Clarification and Extension of Disclosure Principles: "The Adversary System Has Lingered On
Response or Comment
R v McNeil, R v Stinchcombe, Charter of Rights and Freedoms, Crown Duty to Disclose, Trial Process, Reasonable Expectation of Privacy, Supreme Court of Canada
Stinchcombe was an epochal case, providing reinvigoration "by the adoption of the Charter" of the Crown duty to disclose, which had already been recognized at common law", but which was nonetheless necessary, as the element of surprise of "the adversary system has lingered on." The succinctness of Stinchcombe belied its importance, but the Court recognized that "there is a wholly natural evolution of the law in favour of disclosure" and that there would be many details that would "remain to be worked out in the context of concrete situations."
McNeil continues this evolutionary process as it considers "[i]ssues concerning the production of police disciplinary records and criminal investigation files relating to third party accused" in a manner which is faithful to the central concern of the common law and Charter to protect "the overall fairness of the trial process." Eighteen years after Stinchcombe, with only McLachlin C.J. remaining from that bench, the Supreme Court has handed down a clear reminder of the essential nature of the courts' role in supervising the disclosure practices of the police and Crown. The Court was so engaged by this responsibility that the proceedings took a rare course wherein *the Court appointed an amicus curiae and heard this appeal despite its mootness." What has emerged is a simpler and more direct disclosure process regarding many instances involving police misconduct and investigation files in the Crown's possession, which may now be provided obligatorily because they "should form part of this "first party' disclosure package." For other cases, where the records are held by third parties, the Court has provided more tailored directions as to how to conduct an O'Connor!! hearing for production. The net result should ensure a further erosion of that lingering adversarial spirit, which may explain in part the resistance by the Barrie Police Service and the provincial and federal Crowns in this proceeding.
In this comment the Supreme Court's re-examination of the reasonable expectation of privacy lodestone in the McNeil context will be assessed. It is argued that even the adjusted lens of McNeil is too protective of privacy assertions in this setting. Next, the Crown role and the potential utility of disclosure policies in obviating similar litigation will be examined. It is submitted that Crowns ought to inquire about the existence of evidence gathered by other agencies as a routine part of their trial preparation rituals. Moreover, it is suggested that, while Crown disclosure policies already augured for the release of the McNeil materials, they will require adjustments as a result of the case. The complementary police duty to provide disclosure to prosecutors is explored and it is particularly urged that standards for disclosure of police misconduct should be liberalized in light of the public nature of the police role and trends in other related professions. Finally, the Parliamentary responsibility for reanimating the law reform process in this pivotal area of criminal procedure is emphasized.
H Archibald Kaiser, "McNeil: A Welcome Clarification and Extension of Disclosure Principles & 'The Adversary System Has Lingered On'" (2009) 62 CR (6th) 36.