Law Times

PAGE 10 FOCUS may 31, 2010 • Law Times Lawyers grapple with McNeil ruling Differing views on disclosing police disciplinary records create challenges BY ROBERT TODD Law Times D efence lawyers rejoiced following the Supreme Court of Canada's R. v. McNeil ruling early last year, ap- plauding the decision for creat- ing new guidelines for the release of relevant police discipline and criminal records. While the decision appears to have gone a long way to remov- ing some of the catch-22 sce- narios that previously handcuff ed such disclosure, lawyers say it has proven far less clear-cut than ini- tially thought. In its January 2009 decision, the top court ruled that "records relating to fi ndings of serious misconduct by police offi cers in- volved in the investigation against the accused properly fall within the scope of the 'fi rst party' disclo- sure package due to the Crown, where the police misconduct is Edward L. either related to the investigation, or the fi nding of misconduct could reasonably impact on the case against the accused." Toronto's Marie Henein, who acted as amicus curiae on the case, told Law Times shortly after the ruling's release that it would add fairness for accused as counsel previously had to bring a third- party records application to get such disclosure. "Often, defence [counsel] don't know the history, we don't have access to the records, and so unless it's really reported in the media, or you get information anecdotally, you will not be able to get access to that informa- tion," she said. "I think underpinning it is the reality that, if you've got an offi cer whose integrity may be compromised in a way that im- pacts on investigations, every- body needs to know about that. Th at is something that should be aired, it's not something that should be protected." But it appears the system is now grappling with technical is- sues that the top court's ruling didn't iron out. Joshua Arnold, a partner at Arnold Pizzo McKiggan in Hali- fax, says problems have arisen in determining what constitutes "se- rious misconduct," as referenced in McNeil. He says the Crown and police side of the court can have vastly diff erent views than defence counsel and accused on that point. It's easy for both sides to agree on certain activities that could hurt an offi cer's credibil- ity, such as criminal or quasi- criminal matters. But Arnold thinks it should generally be agreed that, like any other wit- ness, records that could aff ect a police offi cer's credibility or reli- ability should be part of disclo- sure to the defence. The Honourable Justice Marc GREENSPAN, Q.C. ROSENBERG Available in print and online in Criminal Spectrum. Hardbound • Approx. 2,400 pp. • Published August of every year On subscription (includes free supplements) $93 • P/C 0635140000 One time purchase $98 • P/C 0635010999 • ISSN 0527-7892 Martin's Ontario Criminal Practice, 2011 Edition Martin's Ontario Criminal Practice offers the most current and authoritative explanation of the rules of practice in Ontario's criminal justice system. 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CA118 (LT 1-2x4 - Martin's).indd 1 www.lawtimesnews.com 5/26/10 2:42:19 PM and all back to 1955. This unique and convenient online resource offers you easy access to all provisions of the at any specific point in time. Look for the for Select Decisions in our online services! , SOR/98-466 Look for the for Select Decisions in our online services! Martin's Annual Criminal Code, 2011 Edition Includes the full text on CD-ROM & Incidents of fraud, dishon- esty or racism, for example, should be available, he be- lieves. However, there are dif- fering views on the relevance of records of such behaviour by police. "In an offi ce, if somebody made a racial comment that was documented somewhere or the other, it may not be consid- ered serious misconduct," says Arnold. "But in the context of a police offi cer who has to deal with people of various races, knowing that they harbour those sorts of attitudes, it may indeed be something that should be dis- closed." Elizabeth Buckle of Beveridge MacPherson & Buckle in Hali- fax, a criminal defence lawyer who also does police discipline defence work, says the handling of informal discipline is a major concern for police. Many police acts, for instance, make way for Marie HENEIN Trusted for over 50 years by judges and practitioners, Martin's references more than 5,000 reported and unreported cases in a practical and accessible format. Look for the for Select Decisions in our online services! two streams of disciplinary pro- ceedings, including one for less serious accusations. However, even the informal streams carry a possible fi nding of guilt. "So there's still an issue about whether that would have to be disclosed, and it creates a prob- lem when you try to import de- cisions from one jurisdiction into another," says Buckle. At the same time, police record keeping has proven contentious in some cases. Diff ering policies among various police forces mean certain incidents of potentially relevant non-criminal miscon- duct may no longer be available for courtroom scrutiny. "Some police acts have a very short period of time that they keep these kinds of disciplinary records on fi le before they're vet- ted and destroyed or wiped out and no longer considered to be part of the police offi cer's person- nel fi le," says Arnold. "As a result, what we may an- ticipate by way of disclosure if a police offi cer did something fi ve, six, seven, eight, nine, 10 years ago that we would consider to be serious, it may no longer be kept or continue to be stored accord- ing to the various police acts." Meanwhile, Arnold notes the McNeil decision has highlighted a "touchy subject" for police of- fi cers by making their credibility part of the trial process. "Th ey have gone from be- ing witnesses about whom you'd never really know very much to witnesses who may be cross- examined about their previous behaviour. It probably becomes very personal when you get into that kind of stuff ." LT Group of Publications MARTIN'S Provincial Offences Act Provincial Offences Act Criminal Code Regulations Prescribing Certain Firearms and Other Weapons, Components and Parts of Controlled Drugs and Substances Act Regulations Prescribing Public Officers Weapons' Accessories, Cartridge Magazines, Ammunition and Projectiles as Prohibited or Restricted Codes Code Criminal Code

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