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[57] The Crown must make the defence aware of the existence and nature of the information which it refuses to disclose in order for the defence to be in a position to seek a review: see R. v. Petten (1993), 1993 CanLII 7763 (NL CA), 110 Nfld. & P.E.I.R. 84, 81 C.C.C. (3d) 347 (Nfld. C.A.). In O’Connor at para. 139; R. v. Barbosa (1994), 1994 CanLII 7549 (ON SC), 92 C.C.C. (3d) 131 at 136, 24 W.C.B. (2d) 453(Ont. Ct. (Gen. Div.)); and R. v. Laporte (1993), 1993 CanLII 9145 (SK CA), 84 C.C.C. (3d) 343 at 350, 113 Sask.R. 34 (Sask. C.A.) [Laportecited to C.C.C.], the court suggests that the Crown should produce a written itemized inventory of the information in its possession and identify those it intends to disclose or has disclosed and those which it does not intend to disclose. The latter should be accompanied by a statement of the basis upon which the Crown seeks to withhold disclosure.
[58] The Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure, and Resolution Discussions(Toronto: Ontario Queen’s Printer, 1993) issued by the Ministry of the Attorney General in Ontario contains a number of general recommendations with respect to disclosure. At 206-208 of the Report, Recommendation 16 and the subsequent commentary state:
16. Crown counsel shall advise the defence of any decision made not to disclose information in his or her possession that should otherwise be disclosed, and the importance of that information. Crown counsel shall also advise the defence of the specific nature of the information in his or her possession which is not disclosed, unless disclosure of the nature of the information withheld would reveal the identity of an informer, jeopardize anyone’s safety or security or subject them to harassment, compromise an ongoing investigation, or reveal police investigative techniques. Upon request, Crown counsel shall take any other steps reasonably necessary to facilitate a review by the trial judge or any decision not to disclose. [emphasis in original]
Commentary
Crown counsel must specify the nature of the material in his or her possession that is withheld on the ground of relevance only. This paragraph does not require Crown counsel to review the entire police investigative file as a matter of course, but rather addresses information in counsel’s possession... Identifying the nature of the material withheld does not require detailed summaries of that material, as this is impractical, particularly in cases with voluminous irrelevant material. Further, requiring a detailed summary may undermine the discretion to withhold. A description of the type of material withheld will suffice.
[59] Some of the suggestions made in this recommendation would seem to have been adopted in R. v. Siemens (F.) (1998), 1998 ABCA 1 (CanLII), 209 A.R. 375, 122 C.C.C. (3d) 552 (Alta. C.A.) [Siemens cited to A.R.]. As in the case at bar, the Crown was concerned about disclosing third party intercepts in Siemens. The trial judge ordered the Crown to listen to all the wiretap tapes (estimated to take eight 40-hour work weeks) and to advise the court, among other things, whether each conversation was clearly irrelevant. The Alberta Court of Appeal held that the Crown was not required to undertake such an onerous task. In allowing the Crown’s appeal from a judicial stay of proceedings from the Crown’s refusal to undertake this task, the court stated at paras. 30-32:
While it is clear that Crown counsel has ultimate responsibility for decisions regarding relevance and disclosure of evidence in the possession of the Crown, that in our view does not include a requirement that Crown counsel personally examine and catalogue every item of evidence, every statement, every document, etc., that has been gathered by the police in the course of investigation, or which may be held by other state agencies, to fulfil his or her duty to the accused and the court.
We recognize that the imposition of such a duty on Crown counsel would create an impossible situation in many cases, such as the present. It is not only in wiretap cases that the Crown must rely on other agencies to make determinations as to relevance of information and provide the Crown with summaries of information which is gathered in the course of an investigation. Police conduct searches, and decide what evidence is to be seized. They provide descriptions of the physical evidence, not the item of evidence itself. In commercial cases, police officers and other staff inspect large volumes of documents and provide resumes to the Crown. They interview witnesses and provide statements, notes or will say outlines. If the current ruling of the trial judge stands and Crown counsel may only make disclosure decisions based on personal inspection and knowledge of all evidence, the system will grind to a halt. All searches, witness interviews and investigations will have to be conducted by Crown lawyers so that they, from their own personal knowledge, can say that all relevant evidence has been disclosed.
We see no need for Crown counsel to personally spend days or weeks listening to lengthy tapes, or inspecting documents and other evidence to fulfil the duty of disclosure. Crown counsel is entitled to rely on information provided to him or her by police officers and other staff members regarding the content of documents, especially those considered to have no relevance to proceedings. While the law regarding disclosure deals with obligations of the Crown and speaks of breaches of ethical duties for failure to disclose relevant materials, nothing which we have found in the authorities requires that the burden of examining and cataloguing evidence be assumed by a Crown lawyer.
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