Disclosure: the Crown, the police and the defence

Three weeks after the Bayview break-in, Detective Whitlock delivered the disclosure package to Kwan's office. It contained a synopsis, the 911 recording and the computer-aided dispatch log, two video files from the laundromat and the pharmacy, nineteen minutes of in-car video from Okeke's cruiser, 64 scene photographs, the scene examination report and the fingerprint report from the forensic identification officer, Grace Liu, the notes of five officers, the release paperwork, and Glenn Whitaker's statement and inventory list. Kwan reviewed it over a weekend. On Monday he called Whitlock with one question. 'The synopsis says the pat-down found the pry bar. The video shows Okeke unzipping the bag. Has anyone asked him about that?'

Desjardins tells the class that this phone call is what disclosure is for. The prosecution does not only pass the file to the defence; it reads it, and the reading often reveals problems the police did not notice. The defence would have seen the same thing within a week. Because the full package, including the video, was disclosed promptly, the problem surfaced early, while there was still time to deal with it honestly. If the video had been held back or overlooked, the problem would have surfaced at trial, in the worst possible way.

Why disclosure exists

Disclosure is the prosecution's obligation to give the accused the information it holds about the case. It exists because the state has vast investigative resources that the accused does not, and because a fair trial requires that the accused know the case to be met and have access to information that might help the defence. The obligation has become one of the most important duties in criminal procedure, and failures of disclosure are among the most common causes of wrongful convictions. Several of the Canadian and American wrongful conviction cases studied in the last course involved police or prosecutors holding information that pointed to someone else.

Disclosure law in Canada

In R. v. Stinchcombe (1991), the Supreme Court of Canada held that the Crown has a constitutional duty to disclose to the defence all relevant information in its possession or control, whether inculpatory or exculpatory, and whether or not the Crown intends to use it. The duty flows from the right to make full answer and defence under section 7 of the Charter. Information may be withheld only if it is clearly irrelevant, privileged, or its disclosure must be delayed for a legitimate reason, such as protecting a witness, and the Crown's decisions are reviewable by the trial judge. Initial disclosure should be made before the accused is called on to elect the mode of trial or plead, and the duty continues as new information arrives. In R. v. McNeil (2009), the Court held that the police have a corresponding duty to provide the Crown with all material pertaining to the investigation, the fruits of the investigation, and that the police must also tell the Crown about records of serious misconduct by officer witnesses that could reasonably affect the case, so the Crown can decide whether to disclose them.

Desjardins emphasizes that in both countries the police are not a separate island. The Crown can disclose only what it has, and McNeil makes it the police service's legal duty to give the Crown everything relevant from the investigation. If police fail to pass something on, the prosecution is in breach, and the remedy can include a new trial, an adjournment with costs, the exclusion of evidence, or in the worst cases a stay or dismissal of the charges.

What the police file must contain

The rule of thumb is simple: if it was created or collected during the investigation and has any connection to the case, it goes to the prosecutor. The prosecutor, not the officer, decides whether something is irrelevant or privileged. Officers sometimes leave things out because they think they do not matter, because they are embarrassing, or because they point away from the accused. Each of those reasons is wrong, and the last is the most dangerous. Evidence that points away from the accused is exactly what the defence is entitled to see.

In the Bayview case, the most important item for the defence was the in-car video. It showed the stop from the moment Okeke pulled up behind Brennan's bicycle at 02:29:05 until Brennan was placed in the cruiser at 02:33:20. Without it, the court would have had only Okeke's account. With it, the court could see that Okeke told Brennan he was being detained for a break-in, patted the outside of his clothing, then took the backpack off his shoulder, unzipped it and looked inside, all before saying anything about an arrest. The video also showed something favourable to the Crown: Brennan's grey hoodie with the white wave logo on the back, clearly visible under the cruiser's lights before the bag was touched.

Officers' notes and the duty to record

Officers' notes deserve special attention because they are disclosed in every case and used in almost every trial. In Wood v. Schaeffer (2013), a case about officers involved in a fatal shooting, the Supreme Court of Canada emphasized that police have a duty to prepare accurate, detailed and comprehensive notes as soon as practicable after an investigation, and that the notes must reflect the officer's independent recollection, not a version shaped by consultation with a lawyer or other officers. Ontario regulations and police service policies set out the duty in detail. Good notes are made at the time or as soon as possible afterward; are written in permanent ink in a bound notebook or an approved electronic system; record times, observations, words spoken and actions taken; do not leave blank spaces or tear out pages; and are corrected by striking through with a single line and initialling, so the original remains readable.

Okeke made his notes between 4:40 and 5:20 a.m., after the arrest and booking, rather than at the roadside. That was not unusual for a busy night, and he recorded the times honestly. But his notes said 'stopped male 02:31' when the in-car video showed 02:29, and they said 'pat-down: hard object in backpack, located pry bar', which compressed two separate actions into one. Desjardins asks the class whether the errors were dishonest. Linh Tran says she thinks they were the kind of mistake people make when they write from memory two hours later and already know how the story ended. Desjardins agrees, and says that is exactly why notes should be made as close to events as possible, and why officers should check video before finalizing a report, recording in the notes that they did so.

# Compare times in Okeke's notes with the in-car video (video clock checked against true time)
events = [
    ("stop: pulled up behind bicycle", "02:31", "02:29:05"),
    ("told reason for detention", "02:31", "02:29:40"),
    ("pat-down of clothing", "02:32", "02:30:10"),
    ("backpack opened", "02:32", "02:31:15"),
    ("arrest announced", "02:33", "02:32:00"),
    ("rights to counsel read", "02:44", "02:44:30"),
]
def mins(t):
    p = [int(x) for x in t.split(":")] + [0]
    return p[0] * 60 + p[1] + p[2] / 60
for name, note, video in events:
    diff = mins(note) - mins(video)
    print(f"{name:32} notes {note}  video {video}  difference {diff:+.1f} min")

stop: pulled up behind bicycle   notes 02:31  video 02:29:05  difference +1.9 min
told reason for detention        notes 02:31  video 02:29:40  difference +1.3 min
pat-down of clothing             notes 02:32  video 02:30:10  difference +1.8 min
backpack opened                  notes 02:32  video 02:31:15  difference +0.8 min
arrest announced                 notes 02:33  video 02:32:00  difference +1.0 min
rights to counsel read           notes 02:44  video 02:44:30  difference -0.5 min

The comparison shows a pattern. The times in the notes for the stop and the search are one to two minutes late, and the order of events in the notes is correct but compressed. The time for reading rights to counsel is accurate, because Okeke read them from a card and looked at his watch. The pattern is typical of notes written from memory: anchors that were checked are accurate, and events around them drift. The prosecution disclosed this comparison to the defence along with the video, which was the right thing to do, because it reflected on the reliability of the officer's account.

Lost and destroyed evidence

Disclosure is meaningless if evidence is lost before it can be disclosed. Police must preserve evidence that may be relevant, including items that seem unimportant at the time. Video systems in stores and vehicles overwrite their recordings, often within days, so investigators must capture video early. In R. v. La (1997), the Supreme Court of Canada held that when relevant evidence is lost, the Crown must explain the loss, and that unacceptable negligence in losing evidence can itself breach section 7. Remedies range from a jury instruction to a stay of proceedings in the clearest cases. In the Bayview case, the pharmacy's video system overwrote after 72 hours. Whitlock collected the footage on the afternoon of March 14, which made it available at trial.

Third-party records and privilege

Some relevant records are held by people outside the prosecution, such as hospitals, schools, counsellors, employers or private companies. They are not in the prosecution's possession, so the ordinary disclosure duty does not apply. The defence can apply for production of third-party records under the common law procedure from R. v. O'Connor (1995), and, in sexual offence cases, under the statutory regime in sections 278.1 to 278.98 of the Criminal Code, which gives complainants privacy protections. Privilege also limits disclosure. The most important privilege for police is informer privilege, which protects the identity of a confidential informant almost absolutely. Only the innocence at stake exception can override it. Officers must keep informer information separate from the general file and tell the prosecutor about it in a way that protects the informant.

Disclosure is continuing

The duty does not end when the first package is delivered. New information, such as a lab result, a supplementary statement, a new witness, or a discovery that an earlier document was wrong, must be disclosed as it arrives, up to and during the trial. On May 4, Okeke wrote a supplementary report correcting his synopsis. It said that he had reviewed the in-car video, that the video accurately showed the sequence of events, and that the pat-down was of Brennan's clothing and the pry bar was found when he opened the backpack. Kwan disclosed the supplementary report the same day. Desjardins tells the students that writing that report was the moment Okeke protected his credibility. 'He could not undo the search,' he says. 'But he could make sure that nobody could ever say he hid what he did.'