Expanding McNeil Disclosure
R v Lam 2016 ABQB 201: First Party vs Third Party Disclosure
This case deals with the issue of whether records pertaining to a criminal investigation of an Officer involved in the case of the accused is first party disclosure under Stinchcombe or third party disclosure properly dealt with an O’Connor application.
The Court conducts an analysis of the law and notes that under Stinchcombe Crown has the obligation to disclose all materials that constitute fruits of the investigation save for those that are clearly irrelevant or legally privileged. Relevance is broadly defined and the threshold for relevance is very low.
The Court notes that the issue before it was address in McNeil where Charron J held that first party disclosure includes records relating to findings of serious misconduct by police officers involved in the investigation against the accused, where the police misconduct is either related to the investigation, or the finding of the misconduct could reasonably impact on the case against the accused. The investigating Police is not a third party for the purposes of disclosure. Indeed, if it were it would be tremendously difficult for the Defence to meet the O’Connor requirements to get the relevant disclosure.
Charron also noted that Crown entities or agencies are considered third parties in relation to the Crown.
Charron J also noted that production of criminal investigation files involving third parties, and of police disciplinary records, is to be determined by an O’Connor application.
Analysis:
This case falls between the first party and third party disclosure positions in McNeil. The records in question do not directly concern the Lam investigation, however at least some of them will have an impact on the case for the accused.
The Court seems to dismiss the argument that because the crown entities or agencies are third parties, this is not first party disclosure. That the first party disclosure is held by third parties is not particularly relevant. If there are any privacy concerns, the PPSC can address them.
The Court expresses some disdain at the PPSC’s lack of movement on providing relevant first party disclosure in this matter even after it had been made aware that such disclosure existed. The Court finds that this is a violation of the Crown’s obligations.
The Court is also unhappy with the EPS’ policy of only disclosing “findings” in investigations against police officers. The Court notes that this only scratches the surface, and a more fulsome disclosure is demanded by McNeil.
Ultimately the Court orders for all relevant and non-privileged information to be made available to the accused. The Court also orders that any information not disclosed must be sufficiently identified so as to enable challenge of refusal.