Professional advice and practical know-how, delivered by an Ontario Justice — that’s what a packed house and webinar audience were treated to, Sept. 9, thanks to the LSG College of Law.
The Honourable Justice Rick Libman is so comfortable and familiar with the subject of disclosure that he spoke extemporaneously at the LSG facility in Toronto. The special event introduced the college to paralegals not yet enrolled in the post-licensing certificate courses. The courses are accredited for CPD Requirement Hours.
Weaving in practice tips and suggestions, Justice Libman covered three types of disclosure that paralegals should know. These are: information in the possession of the Crown (Stinchcombe); third-party records (O’Connor); and records related to a police officer’s employment and discipline (McNeill).
Disclosure in criminal matters within the scope of practice are captured by the Stinchcombe decision. It obliges the Crown to produce material in its possession that is relevant to an accused’s right to make a full answer and defence. Crowns should err on the side of providing discovery, unless an exception applies, such as witness safety, confidentiality or privileged material, Justice Libman noted. Disclosure obligations continue through each stage in the matter.
Justice Libman emphasized the importance of making request disclosures — particularly in Provincial Offences matters where disclosure is not automatic — and documenting the replies to requests. LSG College of Law instructor Frank Alfano agreed, saying that if disclosure has not been provided, follow-up letters should be sent every four to six weeks leading up to trial.
Where evidence is not in the control of the Crown, it may be the subject of a third-party records application, also known as an “O’Connor application.” Such records could include diaries, journals, and medical, therapy, or counseling records.
In R. v. O’Connor,  4 S.C.R. 411, the Supreme Court of Canada developed a two-stage test to determine whether a court should order a third party to produce records.
First, the accused must satisfy the court that the information sought is likely relevant and will assist the defence, with a written application and supporting affidavit. The third party and the complainant must be given notice and may appear to argue against disclosure.
If the application reaches the second stage of the test, the judge reviews the records to assess their relevance — whether there is a reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify.
An O’Connor application can come into play during sexual assault trials. Combined with the Criminal Code sections, the process seeks to balance the rights of the accused and the complainant.
Most often, the accused and complainant have some sort of relationship, giving the accused knowledge of such possible records as therapy records and personal journals, Justice Libman said. A victim has the right to be represented by counsel and to argue against disclosure, on factors such as relevancy to an issue before the court.
O’Connor applications were limited in 1997 by Bill C-46, which comprises ss. 278.1 to 278.9 of the Criminal Code. The sections set out the disclosure regime.
The Preamble to Bill C-46 outlines some of the issues that are unique about sexual assault, including the impact that sexual violence has on women and children. It refers to assault victims’ rights under Sections 7, 8, 15 and 28 of the Canadian Charter of Rights and Freedoms.
The Supreme Court of Canada again considered the third-party records issue in R. v. Mills, in which the court upheld the constitutionality of the Criminal Code disclosure sections.
McNeil fills a category of records that is not captured by either Crown-possession disclosure, or third-party records that are defined in the Criminal Code. Common-law rules apply, where information requested in disclosure has probative value that outweighs any prejudice, the court found.
Justice Libman said police discipline records are the primary subject of McNeil applications, but the principle has been applied to other types of records. If a record is relevant, it is turned over to the Crown and released under Stinchcombe discovery principles. Crown directives also guide discovery.
Defence Disclosure Rules
Justice Libman reviewed the three situations in which the defence is obliged to provide the Crown with disclosure. These are: if the defence intends to rely on alibi evidence; if the defence intends to call an expert witness (Criminal Code s. 657.3); and if the defence comes into possession of physical evidence. In POA matters, evidence legislation provides defence disclosure guidelines.
The third situation — obtaining physical evidence — poses ethical issues that should never be taken lightly. Justice Libman urges paralegals to take a thoughtful approach and consult with mentors, senior paralegals and others.
“Law is complex,” he told the Criminal Procedure class and guests. “I’ve been working in criminal law for more than 30 years and there is still lots that I don’t know. Take a time-out. Get a second opinion. Really think about what is the best practice.”
Paralegal licensing created a unique profession, able to fulfill an important function in the justice system, Justice Libman said. With that right to practice comes a responsibility to be competent, which should never be forgotten.
R. v. Stinchcombe,  3 SCR 326
R. v. O’Connor,  4 S.C.R. 411
R. v. McNeil, 2009 SCC 3,  1 SCR 66
R. v. Mills, 1999 CanLII 637 (SCC),  3 SCR 668
R. v. McAnespie, 1994 CanLII 8762 (ON CA)
R. v. Carosella, 1995 CanLII 899 (ON CA)