Traité de droit pénal général par Jacques Fortin et Louise Viau

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http://www.lareau-legal.ca/TraiteFortin.pdf

Les techniques d'interrogatoires pouvant être sanctionnées par la Cour

R. v. Koivisto, 2011 ONCJ 307 

80 In what is referred to as the "interrogation trilogy", the Supreme Court of Canada has spoken directly on the issues raised in this voir dire…

81 Nowhere in the trilogy of cases does the Supreme Court of Canada sanction the following interrogation techniques:

1. Not advising the detainee of who the offence is alleged to have been committed against making the detainee guess who it might be; 
2. Not advising the detainee of the nature of the allegation making the detainee guess what the allegations might be; 
3. Referring to non-existing evidence that infers a far more serious allegation than that made by the complainant (example in this case was that the Applicant's DNA was found on the child's body the allegation involved sexual touching by hand only); 
4. Ignoring repeated statements by the detainee that he does not want to say anything; 
5. References to the police's obligation to continue questioning despite the detainee's repeated requests not to say anything; 
6. Misrepresenting that the police function is to help the detainee. 

82 In Sinclair, the latest decision of the Supreme Court of Canada on these issues, Mr. Justice Binnie in dissent, warns the majority that their words in the Oickle/Singh and Sinclair (supra) decisions could be misinterpreted.

83 In this case, that is precisely what has happened. The officer and the Crown have cherry-picked through the trilogy of cases to support their position that the Applicant's common law and Charter rights were not violated in this case. They have confused the police duty to investigate crime with an entitlement to ignore and violate a detainee's common law and Charter rights

Wrongful Convictions: The Effect of Tunnel Vision and Predisposing Circumstances in the Criminal Justice System

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https://www.attorneygeneral.jus.gov.on.ca/inquiries/goudge/policy_research/pdf/Macfarlane_Wrongful-Convictions.pdf

Est-ce que le privilège relatif au litige (work product) peut s'étendre aux documents préparés par les policiers?

R. v. Trang, 2002 ABQB 390 (CanLII)

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[10]      As I noted in R. v. Trang, 2002 ABQB 19; [2002] A.J. No. 119 (QL), at paras. 90, 94 and 96, dealing with whether solicitor “work/litigation product” privilege extends to police work product:

¶ 90 Other than Petersen, Stewart, Brennan and Charron, I have been unable to find any authority where work product privilege was applied to material produced by the police. Further, no rationale is provided in those cases for refusing disclosure of the information therein referred to. For example, the Court in Brennan, at para. 21, simply stated that a memorandum prepared by an investigator containing a summary of information which the accused already possessed pursuant to the Crown’s disclosure obligations, was properly characterized as work product which the Crown would not ordinarily be obliged to disclose.

                                                                           . . .

¶ 94 Although agency may justify application of the work product doctrine to material prepared jointly by Crown and police or by police at the request of the Crown, for instance if the Crown requests police to prepare a chart for trial, the traditional agency doctrine may not always be used to extend work product of the Crown to work produced by the police alone, as the police are not considered agents of the Crown at least at the investigative stage: Shirose at paras. 27 ‑ 29.

                                                                           . . .

¶ 96 On the other hand, whether similar work produced by the police during the investigative stage and leading up to the prosecution of an accused should be accorded similar status need not be addressed at this time, in light of the Crown’s representation that the Additional Information in issue was work product related to preparation for trial.

[11]           In my opinion, it is also unnecessary at this time to determine this issue, in light of my finding below. 

[12]           Nevertheless, I offer the following:

	1.	It seems to me that there is a material difference between work product at the “investigation” stage and at the “prosecution” stage;
	2.	At the “investigation” stage, the purpose of the police involvement in the Drafts was to further the investigation by obtaining a judicial order to intercept private communications. I have difficulty in understanding, as a matter of policy, why work product privilege should apply to the work of the police during this stage;
	3.	That is not to say that work product privilege can never apply to police work during the investigative stage of a criminal prosecution. For example, if the investigation has essentially been completed or substantially completed and the police prepare an organizational chart of the alleged criminal organization for the purpose of the prosecution, it is arguable that such chart falls under the umbrella of Crown/solicitor work product privilege;
	4.	Further, it does not follow that because the Drafts may not be protected by work product privilege, the Drafts in their entirety must be disclosed. It is only the facts/fruits of the investigation contained in the Drafts that are not contained in the Filed Affidavits that must be disclosed, particularly if they have not otherwise been disclosed; for example, if there were other information contained in the Drafts which were irrelevant, in terms of Stinchcombe and related cases, such information would not need to be disclosed. As well, the thought process of how to construct a final affidavit and the like, reflected in drafts may be irrelevant.

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.

Charter Detention and the Exclusion of Evidence after Grant, Harrison and Suberu

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http://sclr.journals.yorku.ca/index.php/sclr/article/viewFile/34816/31623

Rapport du Groupe de travail sur la santé mentale et justice du Barreau du Québec

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https://www.barreau.qc.ca/pdf/medias/positions/2010/201003-sante-mentale.pdf