CRIMINAL PROCEDURE: DISCOVERY

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1 CRIMINAL PROCEDURE: DISCOVERY Judge Thomas R. Swvabey* It goes without saying that every person charged with the commission of a criminal offence should be given the opportunity of discovering both the precise nature of the charge held against him and the means by which the Crown intends to demonstrate the charge. While our present system of criminal procedure, perhaps more through informal practice than by the written rule, generally affords such opportunity for disclosure, there is growing support for the argument that, to achieve uniformity in both the opportunity and extent of discovery available to the accused person, some code of procedure is required upon which both defense and Crown counsel can rely. The Law Reform Commission, in its Working Paper entitled Criminal Procedure-Discovery, suggests such a code of procedure and the suggestion will, undoubtably, meet with widespread approval. However, the scope of the proposals contained in the Working Paper and the rigid formality of the rules it seeks to apply will, and indeed should, be the subject of much debate. For the recommendations found in the Working Paper must be based upon the questionable premise that our system of pre-trial disclosure, as it exists today, has been a total failure and has resulted in the application of the criminal sanction in significant numbers of instances where the person before the court was innocent of the offence charged. Only on this premise could such a complete overhaul of our criminal procedure, as is recommended by the authors of the Working Paper, be justified. The recommendations contained in the Law Reform Commission's Working Paper represent an over-reaction to a recognized weakness in a system that is basically sound and which has operated, in all but a very few instances, to produce a high standard of justice while at the same time seeking to administer the application of criminal sanctions to those who offend against our criminal laws. Rather than simply proposing a set of guidelines under which Crown counsel must operate in disclosing to the defence the nature of its case prior to trial, and making those guidelines enforceable by pre-trial rulings of the court, the authors of the Working Paper go much further. They propose a system of discovery that would extend even to the delay of a plea of guilty in a case involving the most overtly committed summary conviction offence until the Crown has completed and delivered to the accused a lengthy, and in many respects redundant, form of written disclosure. Instead of recognizing the advantages of flexibility in a system which must serve the needs of the remote and rural areas of our country as well as those of our urban centers, the proposals contained in the Working Paper urge a rigid pre-trial procedure demanding the presence of the judiciary and other officers of the court at times and places they would not otherwise be * Ontario Provincial Court Judge, Criminal Division.

2 Ottawa Law Review [Vol. 7:295 required. And, in lieu of a system where inclusion of evidence at trial has always rested upon the issue of relevancy, the proposals recommend the adoption of certain exclusionary rules the effect of which would be to prevent the court from hearing available evidence, no matter how relevant, where the Crown had failed by way of formal disclosure to reveal the existence of such evidence. In short, the procedures recommended in the Working Paper make the merits of the case itself subordinate to the conduct of its prosecution. The recommendations contained in the Law Reform Commission's Working Paper, if adopted, would create extensive and rigid pre-plea and pre-trial formal procedures heretofore not deemed necessary. From a practical standpoint one must first ask whether such drastic formalization of criminal discovery is required to assure attainment of the aims and purposes of the criminal law of this country. The answer to this question depends upon how unworkable our present system of pre-trial discovery is found to be. In this regard, there is no evidence whatsoever contained in the Law Reform Commission's Working Paper to suggest that the nature of our criminal process or the rules which presently govern pre-trial procedure significantly impede either the search for truth or the civil rights of the individual accused of having committed a criminal wrong. 1 In fact, the concluding paragraph of chapter two of the Working Paper succinctly summarizes the characteristics of our system of criminal justice that have afforded a unique protection against the conviction of innocent persons. ' If anything, what evidence which does exist would suggest that the present rights of the accused in the face of criminal charges, which include the right to complete silence and the presumption of innocence, when coupled with the burden placed on the Crown to prove guilt beyond all reasonable doubt, permit a substantial number of offenders to go free. This is the case notwithstanding manifestations which, in any other forum, or in any other social or commercial interaction between individuals or groups, would dictate a different conclusion. Having regard for the complete lack of any proof, or, for that matter, any well-grounded suspicions, that innocent persons are being subjected to the sanctions of our criminal laws, the adoption of any wholesale changes in our criminal procedure must be approached with considerable caution and scepticism. What is more, keeping in mind the primary purpose of the criminal law, the cost to society of such changes, both monetary and in terms of delay in the application of the criminal sanction to those who have in fact violated the rules of society, cannot be disregarded. What is proposed in the Working Paper would be expensive in both these areas. At a time when law enforcement agencies are hard pressed to keep up with their present duties and Crown attorneys are experiencing great difficulties in meeting all their court engagements, implementation of the Working 1 LAw REFORM COMMISSION OF CANADA, CRIMINAL PROCEDURE-DISCOVERY, WORKING PAPER 4 at (1974). 'Id. at

3 Spring 1975] Discovery Paper's proposals would require enormous increases, across the country, in the manpower of these arms of the criminal process. A system heretofore relatively free from paperwork would become one struggling to keep up with the demands of a new procedure that seemingly places its total faith in the written word. The now, for the most part, easily obtained disclosure, by way of a short discussion with either the Crown or investigating officer prior to the opening of court or during a recess, in the thousands of cases which are usually disposed of on the initial appearance of the accused in court, would be replaced by a formal system of written disclosure requiring adjournment by the Crown for compliance. To suggest that such a form of written disclosure could be prepared by the Crown and ready for delivery to the accused on his first appearance in court is to reveal a complete lack of understanding of the flow of such cases through the criminal courts. To suggest that the quality of justice might be improved by the adjournment of such cases in order that written disclosure can be prepared is nothing more than academic theory unsupported by any findings of fact. Given the experience of civil litigation where pre-trial procedures evolve around written pleadings and subsequent examinations upon those pleadings, the delays that can be envisioned by the requirements of the Law Reform Commission's Working Paper are of such a magnitude as to make the application of the proposals contained therein frightening. The adage that holds, "justice delayed is justice denied", is, in the field of criminal law, supplemented with the knowledge that the effectiveness of the criminal sanction can be directly related to the swiftness of its application to those who break the law. If pre-trial procedures are to be made so time consuming and so accommodating to the tactic of deliberate delay that the trial of the central issue itself is postponed for an inordinate period of time, much of the protection the criminal law seeks to provide will be lost. In a recent study of the criminal process in Ontario, the Law Reform Commission of that province suggested that criminal cases should be disposed of within ninety days of the date on which the accused first appears in court.' This is a goal that is, under present procedures, being attained in a minority of cases except where the accused pleads guilty to the charge. The adoption of the proposals contained in the Working Paper of the Law Reform Commission of Canada would make such a goal completely unrealistic in defended cases and would even delay the application of the criminal sanction in cases where the person accused desired to plead guilty to the charge held against him. Any delay in criminal proceedings is contrary to the public interest and should only be allowed to occur where absolutely necessary to insure fair trial of the accused. The authors of the Working Paper have underrated the opportunity for discovery available under our present system of criminal justice. Firstly, they cite a survey of the Law Reform Commission's research officers in 3 ONTARIO LAW REFORM COMMISSION, I REPORT ON ADMINISTRATION OF ON-rARio CouRTs 11 (1973).

4 Ottawa Law Review [Vol. 7:295 support of the need for a code of procedure for discovery in criminal cases. ' This same survey would seem to demonstrate a unanimous opinion on the part of prosecutors that the character of their role demands that they give some form of discovery to the accused. Secondly, through misinterpretation of figures obtained from the Dominion Bureau of Statistics applicable to the year 1969, the authors jump to the erroneous conclusion that, "[i]n reality the preliminary inquiry is only made available in a small minority of criminal cases." ' The 1969 figures indicate that ninety-four per cent of the indictable offences in that year were disposed of by magistrates or provincial judges. Such a figure does not, of course, indicate that in ninety-four per cent of the indictable offences the accused was denied the right of obtaining discovery through the means of a preliminary inquiry. In fact, in all but a very few of these indictable offences disposed of by magistrates or provincial judges in 1969 the accused could have elected to proceed by way of preliminary inquiry. One must assume, in the absence of any evidence to the contrary, that satisfactory disclosure was obtained in these cases. Otherwise the accused almost certainly would have elected to have a preliminary inquiry and thereby obtain disclosure of the case against him. Having regard for the not infrequent practice of re-electing and pleading guilty following the completion of the preliminary inquiry, it should be further observed that a significant number of these cases would be ones where a preliminary inquiry was in fact held. When these considerations are applied to the statistics relied upon by the authors of the Working Paper, it is quite wrong to conclude that the preliminary inquiry is available only "in a small minority of criminal cases." ' Only in those relatively few indictable offences over which the magistrate has exclusive jurisdiction is the right of preliminary inquiry denied to the accused person. In all other indictable offences the opportunity for discovery through preliminary inquiry exists and, taking into account the number of pleas of guilty following preliminary inquiry, it is safe to conclude that the preliminary inquiry was in fact used as a vehicle for discovery in substantially more than the six per cent of the indictable offences in 1969 tried by a court other than the magistrate's or provincial judge's court. Perhaps the most far reaching proposals contained in the Law Reform Commission's Working Paper are those that deal with pre-plea disclosure procedures. The large majority of persons charged with criminal offences plead guilty to the charges without trial. Under our present system the plea is accepted immediately when tendered, and the case is disposed of with a minimum of delay in a manner requiring relatively little time of the court, the Crown attorney and other court officials. While the system is not designed to encourage persons to plead guilty without trial, neither is it 4 Supra note 1, at d. at Id. 7 Id. at 10.

5 Spring 1975] Discovery designed to discourage confession of guilt at the earliest opportunity by those persons who have in fact committed criminal offences. The proposals of the Working Paper presuppose that our present system promotes the conviction of innocent persons who plead guilty to offences they have not committed. They also suggest a procedure that cannot help but discourage the truly guilty person from admitting his guilt. In finding fault with our present system of accepting pleas of guilty to criminal charges, the authors of the Working Paper assert that the plea of guilty amounts to an admission of legal as well as factual involvement in the offence charged. While such may well be the implications of a plea of guilty it does not follow that the court must, or indeed would, register a conviction on these admissions alone. There is a duty for the judge to see that both the facts and the law justify conviction before registering the conviction and this duty is applicable even where the accused pleads guilty to the offence. Thus, on a plea of guilty the judge will ask the accused if he agrees with the facts as they have been related to the court and if the accused agrees with the facts the judge will then assure himself that the law justifies a conviction for the offence charged based upon the facts admitted. Only then is a conviction registered. There can be no doubt that a number of persons plead guilty to offences which they might not be found guilty of if the Crown were forced to prove guilt by way of trial. In many of these cases it is the admission of guilt by the accused that makes certain what is otherwise only circumstantial evidence available to the Crown. The pre-plea discovery procedures suggested by the authors of the Working Paper appear to be prompted by yearnings for advocacy rather than by any real conviction that injustices are resulting from our present practice of accepting pleas of guilty in the first instance. Reflecting perhaps a spirit of gamesmanship, the propoed preplea discovery procedure would require the Crown to reveal its weaknesses as well as its strengths. And, in requiring the Crown to submit in writing to the accused such universally accepted information as the right of the accused to plead not guilty to the charge and the right of the accused to consult with counsel, the Crown is placed in the position of throwing the gauntlet at the feet of the accused thereby urging battle and discouraging confession. Given the extent of free legal aid services, the danger is that many truly guilty persons, who would otherwise plead guilty to the charges, will accept the challenge to do legal battle. And our system of criminal justice cannot afford the luxury of hosting full scale legal battles where guilt is obvious and guilt would otherwise be admitted. Nor is there anything to be gained by such luxury other than the possible academic satisfaction of seeing guilt established in every case without the aid of admission on the part of the accused. We must always be on guard to insure that those accused of criminal offences do not feel compelled to make confessions or admissions either prior to trial while being questioned by investigators or at trial by way of

6 Ottawa Law Review [Vol. 7:295 pleading guilty. Such confessions, admissions or pleas will always be tainted with the possibility that they do not represent the truth of the matter at issue. At the same time it would be sheer folly to adopt any procedure that might have the effect of encouraging the truly guilty, who otherwise might freely admit their guilt, to engage in legal proceedings in the hope that, though guilty, they might go free. It is one thing to guarantee the right of fair trial. It is quite another to encourage the truly guilty to seek such a trial. Our system of criminal justice must always be ready to receive the confession of the guilty at whatever point such confession is freely offered. The pre-plea proposals contained in the Working Paper would make the confessor await a formal show of strength from his antagonist. Such a procedure cannot help but discourage confession and encourage those legal mercenaries who thrive on delaying the inevitable in hopeless causes. Of all the good characteristics about our criminal law process perhaps the one we can be most thankful for, in this age of social complexity, is the relative simplicity of our system. Unlike other countries where the criminal process has become crippled by pre-trial procedures and secondary issues, in Canada we have avoided the creation of.conditions precedent to trial and have directed all our efforts towards the expeditious determination of the central issue of guilt or innocence. Even in the case of serious offences our procedure permits, by consent of the accused, a method of speedy trial whereby almost every indictable offence may be tried without a jury and the consequent commitment of time which attaches to trial by jury. Both the constitutional monopoly given to the federal government to enact criminal law and the concentration of the original criminal jurisdiction in one court within the judicial hierarchy have served to shield our system from the pitfalls of a multiplicity of proceedings and competing judicial jurisdictions. It is this simplistic and unencumbered system of criminal justice, perhaps more than anything else, that has permitted our system to keep pace with rapidly growing case loads while other countries, faced with similar demands, have seen their criminal process ground almost to a halt. In seeking to improve our system of criminal justice we need to devise a procedure whereby disclosure is uniformly made available to all persons seeking to discover the nature of charges brought against them by the state. The Law Reform Commission's Working Paper, in reaching this conclusion, has expressed a concern shared in general by the whole legal profession. There can be no doubt that a set of guidelines governing disclosure, enforceable by the courts, would facilitate defence counsel, instruct Crown counsel and expedite the work of the courts. The guarantee of uniform availability of disclosure is a worthy objective of reform. However, the authors of the Law Reform Commission's Working Paper seek to mandatorily impose disclosure upon the accused. To this extent, their proposals are both impractical and unnecessary.