First Party Disclsoure v. Third Party Disclosure

First Party (Stinchcombe) Disclosure

Under Stinchcombe, the Crown has a broad duty to disclose all relevant, non-privileged information in its possession or control to persons charged with criminal offences. Disclosure of this information allows the person charged to understand the case she or he has to meet and permits him or her to make full answer and defence to the charges.

R. v. Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 S.C.R. 326 at pp. 336-40; R. v. Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 S.C.R. 390, at para. 11.

The duty is triggered upon request without recourse to a court.

R. v. McNeil, 2009 SCC 3 (CanLII), [2009] 1 S.C.R. 66, at para. 17.

For the purposes of first party or Stinchcombe disclosure, the term “the Crown” refers to the prosecuting Crown only, not to all Crown entities, federal and provincial. All other Crown entities, including the police, are third parties.

Quesnelle, at para. 11; McNeil, at para. 22.

Apart from the police duty to supply the prosecuting Crown with the fruits of the investigation, records in the hands of third parties, including the police and other Crown entities, are generally not subject to the Stinchcombe disclosure rules.

Quesnelle, at para. 11; McNeil, at para. 25.

The assimilation of the police and Crown as a single entity for disclosure purposes is narrowly confined. Apart from the police duty to disclose to the Crown the fruits of the investigation, the two are unquestionably separate and independent entities, not only in fact but also in law. The police investigate. The Crown decides whether, what, whom and how to prosecute.

McNeil, at paras. 23, 25.

The Stinchcombe disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity. This material is commonly described as the “fruits of the investigation”, that is to say, material gathered during the investigation of the offence with which the accused is charged.

McNeil, at para. 23.

Relevant information includes not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.

McNeil, at para. 17; Stinchcombe, at pp. 343-44.

Service Requirements

Where the disclosure dispute relates to information in the possession or control of the prosecuting agency, the Stinchcombe regime applies and requires service of the application and supporting materials on the prosecutor.

Third Party (O’Connor) Production

A separate disclosure/production scheme exists for records and information in the hands of third parties, strangers to the litigation. This scarcely surprises. After all, third parties are under no obligation and have no duty to assist the parties in litigation or to disclose information to them.

R. v. O’Connor, [1994] 4 S.C.R. 411, at para. 102.

The third party scheme involves two steps or stages. It is initiated by service of a subpoena duces tecum on the third party record-holder, as well as a notice of application and supporting material on the record holder and prosecuting authority.

O’Connor, at para. 134.

The purpose of the subpoena duces tecum is to have the material requested brought to the trial judge who will determine whether and to what extent the material will be produced. The application sets out the grounds upon which production is sought. The supporting material seeks to establish the relevance of the material to an issue at trial including:

                             i.        the unfolding of the narrative;

                           ii.        the credibility of a witness;

                           iii.        the reliability of other evidence; or

                          iv.        the competence of a witness to testify

O’Connor, at para. 134; McNeil, at paras. 27, 33.

For the purposes of this third party production regime, a record-holder need not be a complete stranger to the litigation. Crown entities, other than the prosecuting Crown, are third parties under this regime. And this is so even though some records of the same entity may be subject to the first party disclosure scheme of Stinchcombe.

McNeil, at paras. 13,15.

Service Requirements

Where the disclosure dispute concerns production of materials in the possession or control of a third party, O’Connor requires service of the application and supporting materials on the Crown, (where applicable) the person who is the subject of the records, the third party record-holder and anyone else statutorily entitled to notice.

A subpoena duces tecum must be served on the record-holder.

O’Connor, at paras. 135-36.

The purpose of service on the record-holder is to provide the record-holder with notice and the opportunity to be heard.

See R. v. Jackson, 2015 ONCA 832 (CanLII).