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
 R. v. McNeil,  S.C.J. No. 3 at para. 2.