The RCMP is calling on the Harper government to find a way to ease disclosure requirements that force the Mounties to share all of the fruits of their investigations with defence lawyers, although such a move would face stiff opposition in legal circles.
The second-in-command of the RCMP said in an interview that disclosure obligations, which have steadily grown since a 1991 Supreme Court decision, had initially added 10 per cent to the cost of an investigation in terms of money and human resources.
That number has gone up to 40 per cent, Senior Deputy Commissioner Rod Knecht said, because police officers are spending more and more time filing paperwork in increasingly complex investigations. The 33-year veteran called the disclosure requirements a “huge challenge” to the police force, which would prefer to focus its energies on front-line policing.
“There is a cost to [disclosure], and there is a cost to public safety to that. In times of strict budgets and in the tough economic times that we are in, it’s really difficult,” said Deputy Commissioner Knecht, who oversees police operations as the most senior assistant to civilian Commissioner William Elliott. “We have to take a long, hard look at disclosure, and we have to find much better ways to deal with the disclosure burden that we currently find ourselves under.”
The comments are likely to ignite an intense debate between law-and-order supporters who want to speed up the pace of law-enforcement operations, and civil libertarians who believe police powers should be constrained to prevent abuses and wrongful convictions. The RCMP in particular has been under fire for years over a variety of actions.
Defence lawyer James Lockyer disputed the RCMP’s assertion that the rules are onerous, saying they simply require photocopying or scanning of pre-existing documents.
“The cost of disclosure is $5 in your average case,” he said in an interview.
Mr. Lockyer, a founding director of the Association in Defence of the Wrongly Convicted, said the rules flow from miscarriages of justice in which the Crown failed to disclose essential material to the defence. A high-profile example was Donald Marshall, who spent 11 years in prison for a murder he did not commit.
“History tells us that that regime simply didn’t work,” Mr. Lockyer said.
In addition, there is no easy way to ease disclosure requirements that the Supreme Court imposed almost two decades ago in the case of William Stinchcombe, a lawyer facing fraud and theft charges. The court called for a new trial after determining that Mr. Stinchcombe’s legal team was not provided with copies of potentially helpful statements that his former secretary had provided to police, creating a precedent that is still a top-of-mind issue in legal circles.
The ruling removed the Crown’s discretion to determine what information to provide to the defence.
Deputy Commissioner Knecht said he agrees with the broad principle of disclosure, but he wants Canadians to be aware of the consequences of the current rules, including the impact on the RCMP’s $5-billion annual budget. He said it now takes two officers to process a single case of impaired driving, for example, which can paralyze detachments in isolated communities.
“We never want to see anybody go to jail that shouldn’t go to jail, we don’t want anybody charged if they shouldn’t be charged,” he said. “But the expectation is that there’ll be police officers out there 24/7 and they’ll be responding and be there all the time, when we’re not physically capable to do that any more.”
Deputy Commissioner Knecht is voicing a common concern among police officers, spies and Crown prosecutors, who would prefer more discretion when it comes to the disclosure of evidence.
“To my mind, there has to be a bit of a saw-off here. There probably is a better way for us to accomplish the goals that everybody wants us to accomplish,” Deputy Commissioner Knecht said.
Disclosure obligations continue to grow in Canada. In 2009, for example, the Supreme Court stated in a decision that a police investigator’s disciplinary record might have to be shared with the defence in some circumstances.
In major investigations, such as terrorism cases, police now transcribe and translate thousands of hours of intercepted conversations, leading to millions of pages of material that has to be provided to defence lawyers. While they sometimes don’t read all of the disclosed material, defence lawyers can seek more, or complain about a lack of disclosure in major trials, causing delays.
Commentary by the Ottawa Mens Centre
Canadians need to be aware that often disclosure starts in our Courts. Often
hearings are heard and judges make decisions that defy their own conclusions and
after they realize they have made a political mistake set about sanitizing the
record, the transcripts that is.
Increasingly judges are ordering entire paragraphs to be deleted from transcripts and the courts simply refuse to allow any review of the accuracy of the transcripts and any motion for a order for an opportunity to listen to the audio recording of the proceeding is swept under the carpet judges simply refuse to deal with the request because it could be embarassing to another judge.
Judges are effectively a Criminal Cartel engaged in the obstruction of justice and there exists amongst them a "code of silence" with unwritten rules that do nothing but obstruct justice and perpetuate injustice.
It leaves a vile odour of fear terror and anxiety that literally oozes out of the court room walls.
Often injustice is recognized from the odours that accompany the people responsible whose names just keep cropping up where injustice occurs.
Real Crime? it starts in Family Court
Real criminals? Often the worst criminal in the court room is the judge.
Disclosure? Thats a very sick joke being played upon the public.
http://www.theglobeandmail.com/news/politics/rcmp-wants-less-strict-rules-on-disclosure-to-defence-lawyers/article1859397/comments/?2:00 PM on January 6, 2011
Fact is the RCMP has the worst record of any major Canadian police force when
it comes to unsuccessful prosecutions , charter violations , illegal searches
The Government be it provincial or federal, has increasingly whittled away the amount of "disclosure" that can be obtained.
The Government one way or another gradually increases the costs , hides documents or makes the prohibitively expensive.
Our courts operate increasingly as secret courts , our judges are increasingly corrupt by making political decisions rather than legal decisions.
Just ask any lawyer in Ottawa who is "the worst of the worst" and the name Justice Allan Sheffield will be heard.
In Criminal court , provincial court , any lawyer in Ontario will tell you the most corrupt incompetent Provincial court judges is Judge Richard Lajoie who is despised by court staff prosecutors and in particular criminal lawyers.
While we have judges who work for political goals with predetermined decisions for those who are charged with political crimes the need for real disclosure will only increase.
Our RCMP or any police force cannot be trusted with absolute power to determine what disclosure is or is not relevant and thats why we allready have strict rules regarding disclosure but all of which depend upon the ethics the honesty of prosecutors and police who can simply "omit" or "forget" to include disclosure.
the cost of disclosure is a "red herring".
The crown should have "case management" that is all documents should be scanned and retained in electronic files that can simply be placed on disc or hard drive and provided to the defense.
What is incredibly wrong is that Police routinely prevent criminal lawyers from providing copies of disclosure to their clients who often are the only people who will be able to recognize how and why evidence was fabricated or how evidence is contradicted or how an investigation was never really carried out.
The cost? What does it cost society if injustice occurs? The costs are hidden they are astronomical and the damage to society is incalcuable.
Every day thousands of Canadians are incarcerated for offenses they have yet to be charged with or convicted of. Often the police and prosecutors demand guilty pleas in order to "go home and get back to normal" with the alternative being indefinite incarceration with irreparable harm occurring to marriages employment and futures etc.
Our judges fail to report every decision and as a result the courts become secret courts that bury their injustice and often the worst examples of hiding disclosure is the judiciary who are supposedly there to prevent injustice.