When is Disclosure Required Under Stinchcombe?
It is commonplace that two different regimes govern disclosure in criminal cases: the Stinchcombe regime and the O’Connor third party records regime.
The first party disclosure regime originated in Stinchcombe and was supplemented by duties imposed on the Crown and the investigating police in R. v. McNeil, 2009 SCC 3,  1 S.C.R. 66.
This requires disclosure of all relevant information upon request.
Where Crown refuses disclosure
If the Crown refuses disclosure, the Crown bears the burden of establishing that the information is privileged from disclosure or “clearly irrelevant”.
R. v. Gubbins, 2018 SCC 44, at para. 29.
When does Stinchcombe Govern?
Where either of the following two questions yields an affirmative answer, the first party Stinchombe disclosure regime applies [FN]:
(1) Is the information sought in the possession or control of the prosecuting Crown?
(2) Is the nature of the information sought such that the police or another Crown entity in possession or control of the information ought to have supplied it to the prosecuting Crown?
This will occur when
- the information sought qualifies as part of the “fruits of the investigation” OR
- the additional information sought is “obviously relevant” to the accused’s case.
What are “fruits of the investigation”?
The term “fruits of the investigation” refers to police investigative files, not to operational records or background information. In other words, the term describes information generated or acquired during or as a result of the specific investigation into the charges against the accused. This information may relate to the unfolding of the narrative of material events, the credibility of witnesses or to the reliability of evidence that may form part of the case an accused is required to meet.
R. v. Stipo, 2019 ONCA 3, at para. 84.
R. v. Gubbins, 2018 SCC 44, at para. 22;
R. v. Jackson, 2015 ONCA 832, at paras. 92-93.
In addition to information that falls within the “fruits of the investigation”, the police should disclose to the prosecuting Crown any additional information that is “obviously relevant” to an accused’s case.
Gubbins, at para. 33.
The term “obviously relevant” describes information that is not within the investigative file, but that would nonetheless be required to be disclosed under Stinchcombe because it relates to the accused’s ability to meet the case for the Crown, to raise or advance a defence, or otherwise consider the conduct of the defence. Under McNeil, the police are required to turn this information over to the Crown.
R. v. Gubbins, at paras. 23 and 36;
R. v. Stipo, 2019 ONCA 3, at para. 85, 193: the rolling log of a Drug Recognition Expert — a record that documents every evaluation the expert has administered or observed prior to and after certification — is obviously relevant. However, before disclosing this information, the Crown is entitled to edit from the identities of others who have been tested as this particular information is not relevant.
Stuart O’Connell, O’Connell Law Group (all rights reserved to author).