How does the Crown Disclose Unlawful Pornography to the Defence?


The Crown has an obligation to disclose to the accused all information, whether inculpatory or exculpatory, that could reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.  This obligation is constitutionally-mandated and tied to the accused’s constitutional right to make full answer and defence.

R. v. Stinchcombe (1991 CanLII 45 (SCC),  [1991] 3 S.C.R. 326 ; R. v. Dixon (1998) 1998 CanLII 805 (SCC), 122 C.C.C. (3d) 1 at para.27.

Where the offences charged involve unlawful pornography, as with any other case, the Stinchcombe disclosure requirements operate.  The defence is entitled to view the images, and in my opinion, diligent counsel should view at least a portion of the images which form the basis of the criminal charge/s.  It is not an easy task for counsel, but it is a necessary one.

For offences involving unlawful pornography, Crown will usually fulfill its Stinchombe disclosure obligations one of two ways:

1.       Release to the defence the pornography in its possession and control, subject to the defence making a number of undertakings (a promise to carry out specific tasks and/or fulfill specific conditions.  Under the Rules of Professional Conduct (Ontario) counsel is personally responsible to fulfill the undertaking. The undertakings typically help ensure that the images are not disseminated, not viewed unnecessarily, not kept longer than necessary, etc; or


2.       Make an application under 490(15) of the Criminal Code for a judicial order to release the seized material to defence counsel.  In most cases, the Crown will bring the application and provide the court with a draft order setting out strict conditions for the release of the unlawful imagery, to which the defence will likely consent.

In many jurisdictions, it is the policy of the Crown to release child pornography to the defence only upon judicial order.

Section 490(15) applications are usually, but not always, basket applications: the Order made by a judge upon the reading of the Application Record and without the presence of the Crown (Applicant) and the accused (Respondent).

In my opinion, receiving the disclosure under an Order made pursuant to section 490(15) is the preferable option for the following reasons:

·        An order under 490(15) permits the Crown to make the disclosure of extremely sensitive material - material which implicates, among other things, the privacy interests of its subjects - under the auspices of a judicial order.  This judicial oversight provides an additional level of scrutiny of the process of disclosing such sensitive material.  The judge is able to craft an order permitting access to the seized material on “such terms as appear to the judge to be necessary or desirable” to safeguard and preserve it.


·        A 490(15) application hearing allows for an expedient means for the defence to challenge any of the conditions which the Crown seeks to impose with respect to the disclosure of the pornography.  The defence would as Respondent in the application simply oppose the conditions to which it did not consent and make submissions at the application hearing.  

·         A 490(15) order allows the defence to take possession of the unlawful pornography under the protection of a judicial order. 

·         While possession of child pornography is a criminal offence, section 163.1(6) of the Criminal Code provides a defence where the person “has a legitimate purpose related to the administration of justice”.   This ostensibly protects, among other things, defence counsel who is in possession of child pornography for the purpose of defending an accused.  Personally, I am more comfortable accepting the otherwise unlawful material under a judicial order with clear court-sanctioned terms.

·         If defence counsel does not comply with the “necessary and desirable” conditions of the Order, counsel could be held in contempt.  Though undertakings made by counsel may be enforced by a court, arguably, the consequence for their breach is not as onerous.

CRIMINAL CODE
Section 490(15)
        
Where anything is detained pursuant to subsections (1) to (3.1), a judge of a superior court of criminal jurisdiction, a judge as defined in section 552 or a provincial court judge may, on summary application on behalf of a person who has an interest in what is detained, after three clear days notice to the Attorney General, order that the person by or on whose behalf the application is made be permitted to examine anything so detained. 

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