R v McNeil—Narrowing the Gap between Disclosure and Production

Published date01 July 2009
Date01 July 2009
DOI10.1350/ijep.2009.13.3.324
Subject MatterArticle
CASE NOTE
RvMCNEIL: NARROWING THE GAP BETWEEN DISCLOSURE AND PRODUCTION
CASE NOTE
RvMcNeil—Narrowing the gap
between disclosure and production
By Dale E. Ives*
Counsel, Public Prosecution Service of Canada
Keywords Disclosure; Production; Third party records; Police misconduct;
Crown counsel
nRvStinchcombe1the Supreme Court of Canada held that accused
persons have the right to disclosure of the ‘fruits of the investigation’
against them as an aspect of their right to make full answer and defence.
On request of the accused, the Crown2must therefore disclose to the accused all
relevant information in its possession or control unless the information is clearly
irrelevant or privileged or access to it is regulated by statute.3No court order is
doi:1350/ijep.2009.13.3.324
THE INTERNATIONAL JOURNAL OF EVIDENCE & PROOF (2009) 13 E&P 225–231 225
I
1 [1991] 3 SCR 326, 68 CCC (3d) 1.
2 In Canada prosecutorial authority is divided between the federal government and the provincial
governments. The Attorney-General of Canada (the federal Crown) prosecutes certain offences
under the Criminal Code, RSC 1985, c. C-46, and offences under other federal legislation including
the Controlled Drugs and Substances Act, SC 1996, c. 19. The Attorney-Generals of the provinces
(provincial Crowns) have been delegated authority to prosecute most offences under the Criminal
Code. See Criminal Code, s. 2. They also prosecute offences under provincial legislation. In addition
to prosecutorial authorities the term ‘Crown’ is also used to refer to other government
departments such as the provincial and federal ministries of health, education, transportation
and so on.
3RvStinchcombe [1991] 3 SCR 326 at 343–4. Sections 278.1–278.91 of the Criminal Code create a
special statutory regime that governs access to records that contain the personal information of
complainants and witnesses in sexual offence cases. These sections apply whether the records are
in the hands of the Crown or third parties. They represent Parliament’s response to the Supreme
Court’s decision in RvO’Connor [1995] 4 SCR 411, 103 CCC (3d) 1. In RvMills [1999] 3 SCR 668, 139 CCC
(3d) 321, the Supreme Court upheld the constitutionality of the provisions.
* Email: Dale.Ives@ppsc-sppc.gc.ca. The views expressed in this case note are those of the author and
do not represent the views of the Public Prosecution Service of Canada.

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