A Supreme Court ruling issued on Friday now requires the police to hand over records of the discipline and misconduct of its officers as part of its disclosure obligation to the defence in criminal proceedings. The ruling in R. v. McNeil 2009 SCC 3 advances the transparency and accountability of police officers by routinely opening up police records for inspection by accused persons. The court also took the welcome step of clarifying the murky waters that had confused issues of disclosure and third-party production, setting straight some of the issues that confused lowers courts for years.

The facts in McNeil highlight perfectly the circumstances in which police discipline records often find their way into criminal proceedings: the accused was charged with possession of crack cocaine for the purpose of trafficking and the primary witness at his trial was the arresting officer, PC Hackett. McNeil was convicted at trial, but in the intervening period prior to sentencing, the defence learned through a newspaper article that PC Hacket was standing trial for a number of criminal offences, and had no less than 71 pending Police Act charges relating to the ongoing use, sale and transportation of narcotics. In short, it appeared that the arresting officer was himself involved in the drug trade, casting serious doubt on the credibility of his testimony at trial.

Prior to Friday’s decision, the manner in which an accused could obtain records of an officer’s past misconduct was decidedly confused. The typical duty of the crown to disclose all relevant information under R. v. Strinchcombe [1995] 1 S.C.R. 754 extended only to ‘fruits of the investigation,’ not to records of unrelated proceedings, so they would not find their way into a typical disclosure package. Instead, the accused could attempt to request the information by way of an O’Connor application for third-party production – the typical means for the defence to obtain records in the hands of third-parties such as doctors, jail-keepers, or psychiatrists. The trouble was, judges couldn’t decide whether police records are subject to a reasonable expectation of privacy (normally a requirement for an O’Connor application), but more importantly, an O’Connor application requires an initial showing that the records sought are ‘likely relevant’ to the present case before a judge will order them produced. Barring some miraculous clairvoyance on the part of the defence, there would be no way to know in advance whether the records would hold anything of value for the case. The defence, in short, was left in the awkward position of rarely knowing if the records might be useful, and therefore, rarely able to obtain their production, or even think to make the request.

The McNeil case changed all of that. First of all, the unanimous judgment written by Madam Justice Louise Charron re-writes the law on third-party production by dispensing with the complex O’Connor procedure and replacing it with a much simpler test. The old test from R. v. O’Connor [1995] 4 S.C.R. 411 required judges to engage in a complex balancing of the privacy interests in the document to be produced against the accused’s right to full answer and defence. What this meant in effect was that any evidence obtained by the police as part of the case against the accused would be disclosed immediately without discussion under Stinchcombe, but any potentially exculpatory evidence in the hands of other parties would be subject to a more exacting standard. Now, the records will be disclosed to the defence as long as they are relevant. Outside of the statutory context of s. 278.1, privacy is no longer a factor that factors into the analysis “with few exceptions…, the accused’s right to access information necessary to make full answer and defence will outweigh any competing privacy interest.” Now, once the judge is satisfied that the record has some relevancy to the present case, the record will be produced to the defence without further discussion.

Secondly, the court carved out an exception in the context of police records. Rather than require the defence to cast its rod in a murky fishing expedition for police records, the police ought to disclose any relevant disciplinary information as part of the primary disclosure package. According to Justice Charron, “its discovery should not be left to happenstance.” Instead, any records of the discipline or misconduct of officers involved in the investigation will automatically be disclosed if they might be relevant to the case.

Interestingly, the court stopped short of specifying the proper procedure for how and which records should be turned over from police stations; it conspicuously ignored the question of who should make decisions about the relevancy of police records. The police themselves, it seems to me, are ill-suited to make decisions about which records ought to be disclosed. Not only is their own interest in maintaining the appearance of integrity likely to discourage broad disclosure of internal records, but police officers may lack the legal training and experience to determine how such documents might be relevant in complex proceedings. Another procedure, hinted at by the SCC, would have the police routinely disclose certain types of records to the Crown who, as a sort of gate-keeper, would determine which should be turned over to the defence. Either way, the SCC’s refusal to specify may indicate an interesting change in its willingness to micromanage criminal procedure. Courts are not an ideal place to write detailed law, but instead, better suited to resolving specific disputes and laying down broad principles. The SCC’s previous forays into micromanagement in the law of investigative detention, for example, should stand as some warning. Indeed, in the complex twin “dog-sniff” cases of R. v. A.M. 2008 SCC 19 and Kang-Brown 2008 SCC 18 Justice Charron sided with Justice LeBel’s very interesting dissenting judgment in which they refused to legislate the specifics of police powers. It may now be the case that this train of thought has gained some ground with the other members of the SCC who signed onto Justice Charron’s somewhat open-ended judgment. Whatever the rationale, it will be interesting to see how policy-makers respond to this decision which is sure to produce reactions from police departments nation-wide and make for interesting revelations in the disclosure packages of unsuspecting criminal defence lawyers.

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