BAD BOYS, BAD BOYS, What you going to do – Police Disciplinary Reports and Disclosure

BAD BOYS, BAD BOYS, What you going to do – Police Disciplinary Reports and Disclosure

On behalf of Neuberger & Partners LLP posted in Criminal Defence on Tuesday February 23, 2010.

For years, criminal defence lawyers across Canada have been told by their Crown Attorney counterparts that a third party record application was required in order to obtain police disciplinary records in defence of their clients. For years, criminal defence lawyers have argued, mostly unsuccessfully, that an officer’s prior improper conduct was relevant to the police investigation and essential to making full answer and defence. On January 16, 2009, the Supreme Court of Canada finally released their decision in R. v. McNeil (originally argued on March 19, 2008.) This is the first significant decision out of the Supreme Court to deal with disclosure issues since R. v. Stinchcombe.

In McNeil, the accused was convicted on multiple drug charges and the arresting officer was the Crown’s main witness. Before sentencing, the accused learned that the arresting officer was engaged in drug-related misconduct that had led to both internal disciplinary proceedings under the Ontario Police Services Act and to criminal charges. The accused brought a preliminary motion before the Court of Appeal seeking production of all documents related to the arresting officer’s misconduct. The accused claimed that he required this material to assist him in preparing an application to introduce fresh evidence on his appeal from conviction. The Court of Appeal held that an O’Connor-type procedure is only required in cases where third party records attract a reasonable expectation of privacy, and concluded that no expectation of privacy existed in respect of the criminal investigation files. Subject to appropriate redactions and the resolution of any privilege claims, the Court of Appeal ordered the third parties to produce the criminal investigation files in their possession related to the charges against the arresting officer to the federal Crown prosecuting the accused’s case.

The arresting officer pleaded guilty to one of the criminal charges brought against him. Evidence of the officer’s conviction was admitted on the accused’s appeal, and the accused’s convictions were set aside. In addition, the Crown undertook not to re-prosecute the case. Although, the production issue in this case was moot and the accused withdrew his participation in this appeal. The Court appointed an ‘amicus curiae’ and heard this appeal because, as noted by the Honourable Justice Charon, “issues concerning the production of police disciplinary records and criminal investigation files relating to third party accused occur frequently and, because the proceedings in which these questions generally arise are interlocutory in nature, production orders are often evasive of appellate review”. [ 1]

The Supreme Court of Canada allowed the appeal disagreeing with the Court of Appeal’s assessment that third party records fall under the R. v. O’Connor third party production regime. The Supreme Court concluded that the Crown’s obligation to disclose all relevant information in its possession to an accused is well established at common law under the Stinchcombe regime. Under Stinchcombe, the Crown’s first party disclosure obligation extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown. The legal question that arose was whether “the Crown” for disclosure purposes encompasses other state authorities. The Supreme Court found that while the roles of the Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process. The necessary corollary to the Crown’s disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. Most importantly, the investigating police force, for the purposes of fulfilling this corollary obligation, although distinct and independent from the Crown at law, is not a third party. Instead, it acts on the same first party footing as the Crown. In reaching this decision, the Supreme Court, in very strong language, concluded that records relating to findings of serious misconduct by police officers involved in the investigation properly fall within the first party disclosure package where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused.

The Supreme Court stated that it is “neither efficient nor justified” to leave the entire question of access to police misconduct to be determined in the context of the O’Connor regime for third party production. Rather, the disclosure of relevant material, whether it be for or against the accused, is part of the police corollary duty to participate in the disclosure process. For example, if an officer comes under investigation for serious drug related misconduct, it becomes incumbent upon the police force, in fulfillment of its corollary duty of disclosure to the Crown, to look into those criminal cases in which the officer is involved and to take appropriate action.”

The enormous impact of this decision is a mandate that police disciplinary records should be frequently reviewed by the police and the Crown to determine if they should form part of the first party Stinchcombe disclosure regime. In trying to strike a balance between the accused’s rights and the police officer’s right to privacy, the Supreme Court found that not every finding of police misconduct by an officer involved in the investigation will be relevant to an accused’s case: if the officer in question played a peripheral role in the investigation, or if the misconduct in question may have no realistic bearing on the credibility or reliability of the officer’s evidence such records are of no moment. But at least the Court is now acknowledging, through this decision, that the police, like everyone else, can be BAD BOYS too and that disclosure of such actions can be critical to making full answer and defence!

John J. Navarrete, Barrister
Neuberger & Partners LLP

[1] R. v. McNeil, [2009] S.C.J. No. 3 at para. 2.

Share on:

Leave a Reply

You must be logged in to post a comment.

ARCHIVES

CONTACT INFORMATION

1392 Eglinton Avenue West
Toronto, ON M6C 2E4
Fax (416) 364-3271

COVID-19 UPDATE

On behalf of Neuberger & Partners LLP posted in COVID-19 on Tuesday March 17, 2020.

At Neuberger and Partners, we are monitoring the COVID-19 situation and have implemented safety measures to ensure the safety of our clients and staff. Our priority is and always will be the health, well-being and safety of our staff, clients and colleagues.

We have put in place various measures to prevent and minimize the impact of COVID-19:

  • In addition to standard hand-washing habits, our staff are washing hands before and after every client interaction;
  • All individuals entering our office will be required to use our hand sanitizer to ensure the safety of our other clients and staff;
  • Regular disinfecting of our offices, public areas, meeting rooms and board rooms as well as increasing the frequency of disinfection of higher-traffic surface areas;
  • If a lawyer or client who has a scheduled meeting is feeling unwell, they will be strongly encouraged to stay home;
  • For the time being, we will avoid greeting clients and colleagues with our usual handshakes;
  • We will make every effort to ensure our firm will be stocked up with extra tissue and alcohol-based hand sanitizer; and
  • We will monitor and stay informed from the Government of Canada and World Health Organization for facts as they become available. We will ensure all staff and team members are educated on symptoms and are well informed on prevention and best practices.

Frequently Asked Questions:

Will the firm still run if there are closures?

  • We are committed to assisting our clients. We remain open to assist our clients at this time (following aforementioned standards for health and safety). For clients who wish to communicate with our firm virtually, we have the technology for virtual meetings and are able to respond to the needs of our clients in a manner best to protect our staff and clients’ health.

Are staff and lawyers set up to work virtually?

  • All lawyers and staff are set up to work virtually and continue to assist clients and one another remotely. All lawyers are available via telephone, email and virtual video conferencing.

What is the court situation? How will we deal with court closures?

  • At this time, the Superior Court of Justice is closed from March 17, 2020 to June 1, 2020 – unless a judge orders otherwise.
    If you have a March matter, your matter will be postponed to June 2, 2020.
    April matters will be postponed to June 3, 2020 and May matters will be pushed to June 4, 2020.
  • Similarly, the Ontario Court of Justice will be closed for 10 weeks for all out of custody matters in criminal practice court. In custody matters will still be addressed. It is unclear if out of custody matters such as trials or preliminary hearings will continue since the courts have left this decision to the discretion of the judges. However, Bail courts will remain open for the time being.
  • The Court of Appeal for Ontario has suspended all scheduled appeals until April 3, 2020. But we are still able to file materials and apply for urgent appeals to be heard.
  • We will advise clients by email of their next Court date.

How can payments be made?

  • Payments can be made via e-transfer and visa payments can be made over the phone.

If I have to deliver something to my lawyer, how shall I go about it?

  • For clients who wish to drop off documents but do not wish to come in contact with any one at the firm, you are encouraged to drop them off in our mail slot in front of our office.

We will be open and available for any questions, comments or concerns. Please call (416) 364-3111 for any further information.

Stay safe and healthy,

Joseph Neuberger