Disclosure Duty in the Context of Massive Investigations

R. v. Trang, 2002 ABQB 744 (CanLII)

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[397]      In an ideal world, initial disclosure would also be complete disclosure. The Crown will often be unable to make complete disclosure at the initial stage of the disclosure process. If full disclosure cannot be made when initial disclosure is provided, the Crown's obligation to disclose is an ongoing one and requires that disclosure be made as it becomes available and be completed as soon as is reasonably possible: Girimonte;

[398]         Where Crown takes the position that it has met its disclosure obligations, defence counsel is not entitled to an inventory of all material in the possession of the police, but rather must establish a basis that could enable the trial Judge to conclude that some other potentially relevant material was in existence; in a case of considerable size and complexity, it is to be expected that Crown counsel will not be able to state categorically that other relevant documents do not exist:Church of Scientology of Toronto;

[399]         The facts and complexity of a particular case should dictate the nature and extent of the Crown disclosure of relevant information:  Petten, and Hill J. inWest at para. 66 citing the Martin Committee Report (at pp. 237‑8, 244‑5, and 250‑1):

Without in any way attempting to be exhaustive, access to disclosure materials that is reasonable in the circumstances of complex investigations will depend on such matters as the volume of the material, its sensitivity, the need to protect the integrity of the material, and the nature of the prosecution. Ultimately, access to the material must be guided by the purpose of disclosure, that is, to facilitate the right to make full answer and defence;

[400]         There is, as yet, no recognized manner of application of the disclosure principles to the "big case" investigative file; but particularly in those cases where the Crown has made extensive disclosure, additional production requests by the defence should be responsibly focussed: West;

[401]         Finally, timely disclosure is not an end in itself; it forms part of the right to make full answer and defence:  Biscette.

d.  Summary

[402]         The most significant of the above noted principles and propositions which I find applicable to the Applicants’ allegations can be conveniently summarized as follows:

	1	The Crown has a continuous duty to disclose the fruits of all investigations in its possession leading to the charges facing the Applicants, unless clearly irrelevant or privileged;
	2	It is reasonable for the Crown to expect that Defence counsel will be diligent in pursuing disclosure, and that requests for additional production, particularly in massive investigation cases, will be responsibly focussed;
	3	In the event of a dispute, the information in dispute may be reviewed by the court. If the court finds a breach of the Crown’s duty to disclose, the court may order production;
	4	In assessing whether the Crown has met its disclosure obligation, the Court must measure the reasonableness of the Crown’s performance in terms of the size and complexity of the case, and the volume of disclosure; a standard of perfection, or even a guarantee of effective disclosure, whatever the circumstances, is too high a standard;
	5	There is, as yet, no recognized manner of application of the disclosure principles to the “big case” investigation file; but particularly in those cases where the Crown has made extensive disclosure, additional production requests by the defence should be responsibly focussed;
	6	In complex and considerably large prosecutions, particularly where the disclosure is voluminous and the investigations massive, the Crown necessarily is required to rely on the police to make determinations as to the relevance of the disclosure and to fulfil their duty by providing the Crown with summaries of such disclosure. The Crown is also entitled to rely on information provided by the police regarding the contents of documents considered to be irrelevant. The Crown has an obligation to take reasonable steps to ascertain the existence of such information in the possession of the police, and the police have a concurrent obligation to assist and provide to the Crown such information;
	7	Notwithstanding 4, 5 and 6 above, the Crown must accept responsibility for suppression by the police of the fruits of their investigations.