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McNeil: The duty to disclose police misconduct records

On January 16, 2009, the Supreme Court of Canada released judgment in R. v. McNeil, 2009 SCC 3, a case that looks at the Crown’s duty to disclose police records relating to findings of misconduct by police officers involved in the investigation against the accused as part of the first party disclosure package.

Constable Rodney Hackett was one of the Barrie police officers who arrested Lawrence McNeil in respect to an alleged drug transaction, as well as the Crown’s main witness in the proceedings against him. McNeil was charged with and later convicted of various drug-related offenses, including possession of marijuana and cocaine for the purpose of trafficking. Following this conviction, but before the commencement of sentencing, McNeil learned that Hackett was criminally charged with drug-related misconduct, which also resulted in internal disciplinary proceedings under the Ontario Police Services Act, R.S.O. 1990, c. P. 15. After discovering this information, McNeil brought a motion before the Ontario Court of Appeal seeking production of all documents relating to the officer’s misconduct, claiming that this material was necessary in order for him to bring forth an application to introduce fresh evidence in the appeal from his conviction. Both the Barrie Police Service and the provincial Crown in this case refused production and they were supported by the federal Crown as well.

The Court of Appeal ordered the production of the criminal investigation files relating to the charges against Hackett on the part of the third parties and afterward, Hackett plead guilty to one of the criminal drug-related charges. At McNeils’ appeal, evidence of this conviction was admitted and the convictions against McNeil were set aside. The Crown never re-prosecuted him and McNeil withdrew his participation in the appeal to the SCC. The Court then proceeded with the appeal to the SCC, appointing an amicus curiae, a “friend of the court” to provide information and assist the court in deciding the matter.

The Supreme Court of Canada confirmed the well established common law principle that the Crown must disclose all relevant information in its possession to an accused; however, they also considered the issue of whether this disclosure obligation extended to other state authorities. While acknowledging that the Crown and the police have separate and distinct roles, the SCC found that the police also have a duty to participate in this disclosure process, since it is the obligation of the police to disclose all material related to its investigation of the accused to the Crown. They act on the “same first party footing” as the Crown, as opposed to as a third party, and the first party disclosure package that must be delivered to the Crown should contain any records that relate to findings of serious misconduct by police officers involved in the investigation where this misconduct could “reasonably impact” on the case against the accused or relate to the investigation.

In cases where these types of disciplinary records do not fall within the realm of the first party disclosure package, the O’Connor procedure is implemented for third party production. This common law regime allows for the production of records beyond the control of the Crown and not limited to situations where third party records attract a “reasonable expectation of privacy”, since this would result in uncertainty. The first step of this process is for the individual seeking production to show the court that the documents in question are likely relevant to the proceedings. If this is achieved, the third party may have to turn over these documents to the court for inspection. The second step entails a balancing of the competing interest at stake with consideration of the specific circumstances in the case. In order to achieve this, the court will assess the “true relevancy of the targeted record in the case against the accused”. Charron J. explained at paragraph 20 for the court:

Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused’s case. Otherwise, the Crown would not have obtained possession of it (O’Connor, at para. 12). The second assumption is that this material will likely comprise the case against the accused. As a result, the accused’s interest in obtaining disclosure of all relevant material in the Crown’s possession for the purpose of making full answer and defence will, as a general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.

In general, the accused’s interest of obtaining information in order to make full answer and defence will outweigh the “residual privacy interests” of third parties, however these privacy interests should still be considered. In order to ensure that only relevant interest is produced so that there is no unwarranted invasion on privacy, the court must make orders that are specifically designed to meet the circumstances of the case, possibly making the order subject to conditions or restrictions to the circulation of this information. This decision not only lends assistance to criminal defence lawyers, who are no longer under the obligation to obtain a specific judge’s order to obtain these types of records, and accused individuals in these circumstances, assisting them in making “full answer and defence”, but also enhances the principle of transparency in the courts by allowing for a more free-flow of information, yet still implementing safeguards for the protection of privacy interests. By placing duties on both the police and the crown to participate in the disclosure process, the court provides for the opportunity to “bridge the gap between first party disclosure and third party production”.

[filed: McNeil (2009)]

11 Responses to “McNeil: The duty to disclose police misconduct records”

  1.               BR

     

    “[T]he first party disclosure package that must be delivered to the Crown should contain any records that relate to findings of serious misconduct by police officers involved in the investigation where this misconduct could “reasonably impact” on the case against the accused or relate to the investigation.”

    When a police officer’s credibility is in issue, won’t ALL recent discipline records “reasonably impact” the case against the accused? Is the test for what “reasonably impacts” a case the same as the relevance test for admissibility? How can a Crown reviewing a file know whether a discipline record will relate to the case without knowing anything about the defence the accused intends to advance? If the Crown realizes the records are relevant after the accused has called evidence, is the Crown then obligated to disclose such records?

    And how will defence counsel be able to challenge the decision not to disclose this information when they aren’t told whether such discipline records exist or not? This is the same old “don’t know what you don’t know” O’Connor problem.

  2.               Darius Tierman

     

    Since evidence of bad character for police officers is now going to be an automatic issue, we are sure to see the converse: 35 commendations and awards, letters from citizens submitted as evidence of good character for every officer. Add another 4 days to every jury trial!

  3.               Martha Smeaton

     

    The last comment was from Darius Tierman. I wonder if this is the same Darius Tierman, a Police Constable who won an Exemplary Service Medal on June 7, 2007. If so, then it would also be the same Darius Tierman who assaulted a cyclist for stopping at a yellow light:

    http://www.citytv.com/toronto/citynews/news/local/article/13006–cop-charged-in-bike-assault-road-rage-incident-that-was-caught-on-tape

  4.               Darius Tierman

     

    It would also be the same Darius Tierman who was exonerated after trial. And was the only one found to have told the truth in Justice Ritchies opinion. But tell us, Martha Smeaton, how does your disparaging of me further discussion about the topic, which was McNeil, The Duty to Disclose?

  5.               Yiwei Hu

     

    Exonerated? Remember, you were simply found not guilty. That does not mean exonerated. It simply means that the judge, from his perspective, thought that you applied reasonable, and not excessive force. Many legal scholars understand the difficulties met in assessing what is reasonable and what is excessive. Hence, the judge’s verdict of not guilty was far from clear cut–rather grey, would you not say? There is lots of room for debate that you were indeed guilty of assault. In fact, this is what I and many others believe.

    You had the right to defend yourself, absolutely. However, you do NOT have the right to punch a cyclist to defend your car. Do we place more importance on property than people in our society?

    You are lucky to have been “exonerated”. However, I hope this incident leaves a mark on your social and environmental conscience.

  6.               jim case

     

    thanks for responses. my real question is ,first , does the mcneil decision state that the police MUST send an investigation to the crown for a legal opinion IF the SUSPECT is a POLICE OFFICER, and second . does this decision say that a police officers personal file be sent with the REQUEST for an OPINION ONLY , i understood that this decision only referes to, if charges were laid and before the court , then the the police officers personal record comes into play. am i right or am i missing something here.

  7.               Yiwei Hu

     

    Responding to an earlier comment made by Darius Tierman:

    “Since evidence of bad character for police officers is now going to be an automatic issue, we are sure to see the converse: 35 commendations and awards, letters from citizens submitted as evidence of good character for every officer.”

    Firstly, McNeil does not imply that we must concern ourselves with “bad character”. McNeil implies that we concern ourselves with misconduct–two very different concepts in law. Secondly, because we concern ourselves only with misconduct, it will not become an “automatic issue”. Finally, it is unlikely that a police officer with “35 commendations and awards” would behave in an illegal or disreputable manner.

    It is highly important that the Crown disclose evidence of any misconduct on the part of police officers. Our state and the agencies of our state must be held accountable for their actions. Otherwise, corruption is sure to spread.

  8.               Bob Pillar

     

    But everone knows Justice Ritchie is a lousy Judge who never convicts the Police. Curious, how did you arrange for Ritchie to try your case?

  9.               Concerned Citizen

     

    Its funny how us as citizens rely on the police for help in times of trama, yet we criticize them whenever the oportunity comes available. Regarding the McNeil decision, this was pretty serious…and the surroundings of the case raised serious ethical/moral concerns of someone thats holds the peace officer position. But to have information on officers disclosed, even if it is not relevant to the issue at hand is just rediculous. I mean, drug offense…drug conviction, i then agree with disclosure. But many incidents happen to peace officers in personal life that can sometimes cloud judgement. They are constantly under a microscope. And they are people have inperfections like the rest of us. We all have things we are not proud of….but having a police officers flaws revealed in public documents that having nothing to do with the issue at hand is insane. And if there was discipline and the officer can offer a genuine explantation, who really cares! the CCC already works against those who uphold the law….why make it more difficult for these individuals to carry out thir role…..

  10.               Diane McLeod

     

    “Abuse is Abuse” “Assault is Assault” “Murder is Murder” No matter what color you wear!

    In being fair minded people we look at both sides of the coing, but still come up with, “Why is Policing abuses still happening?” Dempsey and Forst (2009) explain that police deviance will never be eradicated. Thus if we know it is always going to happen, and policing is the first stage of investigating the police, then, we can safely say, “police will always abuse the court system and their citizens.”

    I am looking for research on, How abusers change their tactics when confronted with common law.? Meaning, does the police who know the investigation and the court processes extremely well; makes me ask another question, How will they change their investigation strategies in getting away with deviance, or misconduct, or murder? If we already know policing deviance will always happen.

  11.               Steve Moir

     

    Does the MacNeil disclosure apply to non police bodies, such as health inspectors who do not carry peace officer status, but can lay charges under other acts of law?

    Thanks

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