Steering Committee on Justice Efficiencies and Access to the Justice System – Report on Disclosure in Criminal Cases
June 2011

Appendix C

Detailed Police Input

The chart below is a selection of commentary from a more comprehensive survey conducted under the auspices of the Law Amendments Committee of the Canadian Association of Chiefs of Police. A copy of the whole survey may be requested from the Canadian Association of Chiefs of Police. The Steering Committee and Disclosure Subcommittee extend their sincere appreciation to the Law Amendments Committee for its invaluable assistance. The police and intelligence services that participated in the survey were:

PROBLEM
Responsibility and Organization		 PROPOSED SOLUTION POLICE SERVICE

1) Disclosure is too slow, disorganized and incomplete
  • Practical set of protocols with the Crown for effective case management adopting front end loaded approach, user friendly electronic format and the electronic Crown brief complemented by practical templates customized for its presentation.
  • Early engagement of prosecution and paralegal team working with file coordinator from the police to ensure that evidence is gathered in a timely and continuous way and that it is organized and presented according to best practices.
  • Audit files on ongoing basis to identify and collect missing reports, certificates and notes. Establish a Joint Committee and clearing house regarding disclosure issues.
  • Calgary Police Service along with Alberta Justice has formed a Joint Disclosure Center within the Calgary Crown’s office.
  • The Office of Investigative Standards and Practices is a new concept in oversight of Major Cases. Its role is to assist units’ set-up for Major Cases using the Major Case Management (MCM). A big part of that set-up is planning for disclosure and the preparation of a final court brief. We have developed a Foundations of File Co-ordination course. Police education is fundamental to disclosure. Also, an Infoweb is in place via the RCMP to share best practices and lessons learned.

RCMP O Division

2) Lack of appreciation for the importance of the role of the File Coordinator.

The lack of experienced file coordinators was also identified as a major challenge in many regions.

There is a need for members/employees to learn how to organize the material obtained during the investigations in order to facilitate the disclosure.

Responsibility for disclosure is important, given its impacts on financial, human and material resources. McNeil states that the police acts, for disclosure purposes, on the same first party footing as the Crown, but that its disclosure package is due to the Crown, who in turn has an obligation towards the defence. In Quebec, our 1994 MOU with the Quebec DOJ provides the SQ must produce 2 packages (1 for the Crown, 1 for the defence — even if there are many accused). It was never applied; we produce and pay for the whole disclosure process.
  • Processing of files and having disclosure made from a centralized section (Court Section) provided a better product.
  • A Memorandum of understanding on disclosure is in force in BC since 2006.
  • To improve External or Systemic Disclosure issues will require further cooperation between Police and Crown. Both agencies continue to work toward this through communication and Police/Crown monthly meetings

Regular Police/Crown Committee meetings.

  • There is a need to select the right people for the File Co-ordination job, train them properly and support them with personnel and equipment.
  • A joint police (SQ and major Quebec municipal police forces) – DPP Committee was formed in 2009 to review the existing protocol and practices. It has completed McNeil procedure and forms and will work on the larger issue in 2010.
  • Halifax
  • North Saanich
  • Halifax
  • Winnipeg
  • RCMP « E » Division
  • RCMP
  • SQ

3) For larger investigations, Crown resources and/or availability for advisory purposes are sometimes scarce.

This situation may result in unintended disclosure of sensitive information, delay and misunderstandings. It is sometimes necessary to postpone police operations in order to allow the Crown to study the file. Police are then obliged to make where they can consult our investigation file directly from their office.

Police are then required to conduct supplementary investigations to ensure that the grounds to obtain warrants are contemporaneous.

There are situations where packages are not read by Crown before disclosure. Not the same Crown, other case theory.

Crowns do not read the package; just give it. Everything gets disclosed. Cases are thrown out of court on the issue of failed disclosure.

Lack of control by Judges in pre-trial court procedures
  • Production of copies for the defence by the police should be clarified.
  • We have developed a pilot project with organized crime prosecutors, where they can consult our investigation file directly form their office.
  • Can we not legislate a requirement for a mandatory appearance in front of a judge SIX months prior to trial, should all disclosure issues not be resolved between Crown and defence?
  • Or a parallel to the civil system or pre-trial management including a trial readiness certificate? If one party failed to sign the certificate you would bring a notice of motion. In reality this gets sorted out either at case management, or by making an application for trial (if the other party won’t move it along).

Standard cases:

Meaningful Judicial Pre-trial

  1. Standard = three court appearances
  2. Defence/Crown mechanism in place legally for dispute resolution.

Large cases: Judicial Case Management, especially at pre-trial stage. When an early assignment is not feasible , a "pre-trial case management judge" must be assigned and given the power to make new rulings on pre-trial issues including disclosure motions.
  • Montreal
  • SQ
  • Montreal
  • Calgary
  • Halifax
  • Calgary
  • OPP

5) Who is responsible for vetting?

Sometimes, the file is so large, that the Crown will rely entirely on the police and won’t review it.

Resources to meet disclosure obligations are scarce, and their absence can delay the progress of an investigation,
  • There needs to be a firm and final decision on who is responsible for vetting of all disclosure, be it a regular case or a major case.
  • The police do the initial vetting and the Crown reviews it.
  • Police do the initial vetting.
  • The essential collaboration between Crown and police for that purpose should not lessen the necessity for each entity to provide the required resources.
  • Responsibility should be determined.
  • Vetting or editing briefs is a joint responsibility of the police and the crown.
  • There are two processes at the moment. For the day-to-day cases, the Crown Attorney vets the disclosure. For major cases, the investigator is vetting the disclosure. Vetting should be done at investigator level prior to being submitted to File Coordinator.
  • Creation of a new full time employee (Disclosure Person) for each several investigative unit. Duties would include:
    1. Reviewing and vetting major investigation files to ensure disclosure material is relevant, accurate and complete;
    2. Preparing case reports for Crown counsel to conduct a final review of all material prepared for disclosure;
    3. Assisting with requests from Crown counsel for disclosure material;
    4. Assisting with prioritizing request from Crown counsel and assigning work;
    5. Liaising with Crown counsel about content and format requirements for evidentiary material submitted for disclosure; and
    6. Preparing briefing regarding significant developments in trials.
  • Ottawa
  • Montreal
  • RCMP O Division
  • OPP
  • Ottawa

6) Crown’s office has staffing issues.

The Disclosure-related activities tie up regular members while they should be focusing on investigations
  • All of the Disclosure made by HRP goes through our Court Section. As a result, HRP has put resources in place in the form of a commissionaire to look after all duplication of the files prior to being sent out to the Crown. While there is a cost involved in having this process in place, one advantage is that a more consistent product is being produced.
  • Standard cases Dedicated Prosecution — A Crown will be assigned a case from start to trial and have ownership. This will provide continuity with issues including disclosure.
  • Large cases: Closer collaboration by police and Crown through pre and post charge assistance and preparation of disclosure, often referred to as "embedded Crowns"
  • Adequate support staff trained in E&R in order to complete data entry, thus allowing the file investigator to supervise the disclosure entry, instead of dedicating his/her time entering the data.
  • The cost of disclosure could be reduced by having civilian members and/or public servant replacing the regular members for the disclosure duties.
  • Salary on a regular member (Constable) is $75,657.00 compare to civilian member (ADM-03) at $58,729.00 and Public Servant (CR-04) at $45,620.00.