Crown:  K. Hughes, Office of the Crown Attorney, Toronto
Defence:  Craig Penney, Computer Crimes Lawyer, Toronto Child Pornography Defence

¶ 1  THE COURT:  This application arises out of a dispute concerning the manner of disclosure of approximately thirty-five video cassettes of which Mr. A.B. ("the applicant") was found in possession. The prosecutor alleges that the tapes are child pornography or obscene.

¶ 2  On October 30, 1996, the applicant was charged in an information which contained eight counts. The charges arose as a result of the seizure of some five hundred video cassettes by police investigators. Seven of the counts relate to video cassettes, which are alleged to be obscene or child pornography. Despite several court appearances, the applicant has not yet elected mode of trial.

¶ 3  On April 21, 1997, a pre-hearing conference was held before a judge of the Provincial Division. At its conclusion, the prosecutor then in charge of the case indicated that she was not opposed to the release of copies of specified video cassettes to counsel for the applicant. The prosecutor insisted, however, that undertakings be given by counsel for the applicant concerning duplication and distribution of the copy tapes. Counsel for the applicant was prepared to give the requested undertakings.

¶ 4  In correspondence which confirmed what had occurred at the pre-hearing conference, counsel for the applicant expressed concerns about the cost of production of copy tapes being borne by the applicant. The prosecutor confirmed that the cost of tape reproduction would, indeed, be the responsibility of the applicant. The cost included the supply of blank tapes and an hourly copying rate of $30. In the alternative, the prosecutor suggested that the applicant, counsel and any expert retained by the applicant could view the tapes privately at a police station at a mutually-convenient time.

¶ 5  In further correspondence, counsel for the applicant refused to pay the cost of tape reproduction which he estimated at approximately $9,000. He declined the opportunity to view the original tapes at the police station. A variety of reasons were advanced. They included concerns about tape continuity and integrity, a breach of the right to silence and an inability to discuss the matter freely with any retained expert and the applicant.

¶ 6  The prosecutor re-iterated her position concerning the responsibility for the cost of tape reproduction. The offer of the alternative method of disclosure was repeated.

¶ 7  Further correspondence followed. In the result, counsel for the applicant continued to complain about being saddled with the cost of tape reproduction. He asserted that disclosure was the responsibility of the prosecutor, hence the cost of reproduction of tapes was the obligation of the state. The applicant was not required and could not afford to pay the cost of tape reproduction.

¶ 8  The position of the prosecutor did not change. No copies would be provided, unless the applicant paid the prevailing rate and gave the necessary undertakings. At all events, copies would only be provided if ordered by a judge. The application for disclosure by providing copies would be opposed by the prosecutor, both in relation to production and to costs. The applicant, counsel and any expert retained by the defence could view the tapes privately at the police station by arrangement with investigating officers and the prosecutor.

¶ 9  The applicant has not yet elected mode of trial. No disclosure has been made of the thirty-five video tapes which the prosecutor has identified as forming the subject-matter of the charges. The applicant refuses to pay for copy tapes. The prosecutor refuses to provide copy tapes, inter alia, without payment. The applicant refuses to take up the prosecutor's offer of disclosure by private viewing at the police station. No one wishes to give ground.

¶ 10  The application proceeded without reference to the authority of a Judge of the General Division to order disclosure in a case before the Provincial Division, where there has been no election concerning mode of trial.

¶ 11  In large measure, the positions of the parties accord with their earlier correspondence. It is of value, nonetheless, to recapture their substance.

¶ 12  It is the position of the applicant that he is entitled, without appropriate undertakings, to be provided with copies of the video cassettes which are alleged to be child pornography or obscene, as the case may be. The cost of reproduction, as with other more traditional forms of copyable disclosure, should be borne by the state.

¶ 13  Mr. Penney submits that the applicant is not required to content himself with the alternative of private viewing at the police station which has been offered by the prosecutor. The alternative is impractical, infringes or compromises the applicant's right to silence and poses problems with tape continuity and integrity. Counsel may be put in the position of becoming a witness should continuity be an issue.

¶ 14  In connection with the issue of the costs of reproduction of copy tapes, Mr. Penney reminds that it is the prosecutor's obligation to make disclosure. Entitlement to disclosure is a matter of constitutional right. In the usual course of events, the cost of disclosure is that of the party who is obliged to disclose, the prosecutor. The same rule applies to video tapes.

¶ 15  It is the position of Ms Hughes that the prosecutor is under no obligation to provide copies of relevant tapes in order to fulfil its constitutional obligation of disclosure. It is a fortiori that the tapes should be supplied at public expense.

¶ 16  Ms Hughes contends that the method of disclosure proposed by the applicant is contrary to policy directives contained in the Crown Policy Manual. Further, it would constitute an offence to distribute copies of child pornography and obscene material to defence counsel, even with undertakings to bar further copying or distribution.

¶ 17  It is the submission of the prosecutor that the alternative proposal of private viewing at a mutually-convenient time at a police station satisfies the prosecutor's disclosure obligations. It does so in a way which permits the applicant to make full answer and defence, yet does not further compromise any privacy interests to which persons portrayed on the tapes are entitled.

¶ 18  Ms Hughes urges that, if disclosure of copies of tapes is ordered, the cost should be borne by the applicant. It is the applicant who seeks disclosure in a particular form. Another perfectly acceptable form of disclosure has been offered. Where an applicant insists upon a particular form of disclosure, notwithstanding disclosure is offered in another way consistent with constitutional standards, the applicant ought pay the cost.

¶ 19  The analysis required by this application involves consideration of fundamental principles of disclosure in criminal cases, including the authority to make orders of the nature sought.

¶ 20  In R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1, the Supreme Court of Canada held that, in indictable cases, a duty is imposed upon the prosecutor to disclose to the accused all relevant material, inculpatory or exculpatory, that is in the possession or control of the prosecutor. The duty arises as a result of the constitutional right of an accused to make full answer and defence. The obligation to disclose is not absolute. It arises as a result of a request for disclosure by an accused. Disclosure may also be withheld, or delayed in certain circumstances. Initial disclosure should be made before the accused is asked to elect mode of trial or to plead. See, R. v. Stinchcombe, supra, at p. 14, per Sopinka J.

¶ 21  A prosecutor may justify non-disclosure on the basis that what is sought is i) beyond the prosecutor's control; ii) clearly irrelevant; or, iii) privileged. See, R. v. Chaplin (1995), 96 C.C.C. (3d) 225, 233 (S.C.C.), per Sopinka J.; R. v. Stinchcombe, supra, at p. 11, per Sopinka J.; and, R. v. Egger (1993), 82 C.C.C. (3d) 193 (S.C.C.).

¶ 22  Relevance is determined by reference to the use of evidence or material by the defence. If there is a reasonable possibility that the material may be useful to an accused in making full answer and defence, it ought be disclosed unless privileged or beyond the prosecutor's control.

¶ 23  An accused does not appear to have any absolute right to disclosure or production of original material. See, R. v. Stinchcombe (1995), 96 C.C.C. (3d) 318 (S.C.C.). Where the original is within the possession or control of the prosecutor, there would seem an obligation to produce or allow inspection of the original. See, R. v. Stinchcombe, supra, at p. 318, per Sopinka J.

¶ 24  In the usual course of events, prosecutorial disclosure consists of photostatic reproductions of witnesses' statements, documents and other things capable of such reproduction. In cases involving large numbers of documents, whether statements or business records, defending counsel is provided with disclosure by photostatic reproduction or CD-ROM.

¶ 25  Where the prosecutor's case involves evidence of intercepted private communications, statutory notice provisions govern. See, Criminal Code, s. 189(5). It is not uncommon, however, for disclosure to include copies of relevant tapes (especially if the words spoken are not in the language of trial), and transcripts or translations of them.

¶ 26  The Attorney General's Advisory Committee on Charge Screening, Disclosure and Resolution Discussions ("the Martin Committee") recommended that the prosecutor be required to provide: 41.12 (h) where reasonably capable of reproduction, and where Crown counsel intends to introduce them into evidence, copies of documents, photographs, audio or video recordings of anything other than a statement by a person, and other materials should normally be supplied to the defence. The defence may be limited to a reasonable opportunity in private, to view and listen to a copy of any audio or video recording where Crown Counsel has reasonable cause to believe that there exists a reasonable privacy or security interest of the victim(s) or witness(es), or any other reasonable public interest, which cannot be satisfied by an appropriate undertaking from defence counsel.

¶ 27  The Commentary which accompanied the recommendations of the Martin Committee appears at pp. 234 - 235 of its Report: Paragraph 12(h) is broadly worded to cover all manner of items reasonably capable of reproduction that may become an exhibit at trial. Normally, the defence should be provided with copies of such items. Paragraph 12(h) also deals with a certain kind of audio or video recording in further detail. The audio and video recordings contemplated in paragraph 12(h) are those that are not audio or video recorded.

¶ 28  It would seem clear from the Report of the Committee that, exceptional cases aside, disclosure of video tapes should be by copy. It is also fair to say that, in exceptional cases where other rights are in conflict, the constitutional requirement may be met by providing an opportunity for private viewing. c. The Cost of Disclosure

¶ 29  There is not much said or written about the cost of disclosure, in particular who should pay for it when disputes arise.

¶ 30  The Martin Committee made the following recommendations concerning payment for disclosure: 43. The Committee recommends that the police should bear all production costs including labour, equipment, and material costs associated with the preparation and delivery to the Crown of the Crown Brief, photographs, and other exhibits or material used in the prosecution of a case in court. The Ministry of the Attorney General will bear the actual material costs needed to produce second or subsequent copies of Crown Briefs intended for disclosure purposes to defence counsel or to the accused person. 44. The Committee recommends that an accused person should not have to pay for basic disclosure.

¶ 31  It was the view of the Committee that police forces should bear the cost associated with providing the case to the prosecutor so that it may be conducted in court. The Committee took a different view, however, about providing subsequent copies of material which are required for disclosure: . . . Fundamentally, disclosure to an accused person is the duty of the Crown. It is not the duty of the police, although, of course, disclosure cannot be accomplished by the Crown without the co-operation of the police. Therefore, the Committee thinks it right for the Ministry of the Attorney General to bear the actual costs of the materials needed to produce the disclosure necessary to discharge Crown counsel's obligations to an accused person. In simple terms, then, the Committee's recommendation pertaining to the sharing of costs of disclosure between the Crown and the police parallels directly the essential duties of each, with each bearing the costs of their own respective duties. See Report, at p. 268.

¶ 32  The Martin Committee also recommended that an accused ought not be required to pay for "basic disclosure". What constitutes "basic disclosure" will vary. Where a Crown brief has been prepared, "basic disclosure" is the brief itself, including copies of photographs to be tendered as exhibits. The Committee stopped short, however, of requiring that copies of all photographs taken be provided to an accused. The following passage reflects their views: . . . However, the large scale reproduction of all photographs may be prohibitively expensive. Defence counsel may properly request an opportunity to view any photographs taken. However, it would not be unreasonable, in the Committee's view, for defence counsel to pay for any reproductions of photographs requested following a view of the complete set of photographs taken. The Crown has, in providing an opportunity to inspect the photographs, discharged its obligation to disclose. Thus, the subsequent reproduction for use by the defence is essentially a cost of conducting the defence. See, Report, at p. 273.

¶ 33  From time to time, disputes arise concerning the adequacy or timing of prosecutorial disclosure. It is for the "trial judge" to resolve the matters in issue. See, R. v. Stinchcombe (1991), 68 C.C.C. (3d) 1, 12 (S.C.C.), per Sopinka J.

¶ 34  This application illustrates what has become a practical problem in giving effect to two principles articulated by the Stinchcombe court. Initial disclosure is to occur before an accused is called upon to elect mode of trial, or plead. See, R. v. Stinchcombe, supra, at p. 14, per Sopinka J. Yet, the court empowered to review the adequacy of prosecutorial disclosure, in essence the exercise of a prosecutor's discretion concerning the extent, manner or timing of disclosure, is the trial judge. See, R. v. Stinchcombe, supra, at pp. 12-13, per Sopinka J. In cases where an accused has a right to elect mode of trial, there is no trial court, let alone trial judge prior to election. Who is the trial judge prior to election to review the adequacy of initial disclosure by the prosecutor?

¶ 35  An allegation that prosecutorial disclosure is inadequate is a complaint of constitutional infringement. It is an assertion that an accused's right to make full answer and defence, a right afforded protection under Charter s. 7, has been infringed by state conduct, viz., inadequate or untimely disclosure. The accused, by application, seeks a remedy that is appropriate and just in the circumstances.

¶ 36  It is necessary to clear away first the issue of jurisdiction. No submissions were made about it, nor did the prosecutor argue that the remedy sought could not be granted, if otherwise entitlement was shown, on this application.

¶ 37  In this case, without an election of mode of trial, there is no trial court. It follows that there is not, nor am I, a trial judge. It would strain the plain meaning of the term, and the sense in which it was apparently used, and repeatedly, in Stinchcombe, supra, to describe myself as the trial judge, even a judge of the trial court. The argument would have more force if the offences charged were within the exclusive jurisdiction of the General Division, or if the applicant had elected trial here. Neither is the case.

¶ 38  The reference to the "trial judge" as the court in which prosecutorial disclosure decisions may be reviewed coincides with the general rule that "a court of competent jurisdiction" for the purposes of Charter s. 24 in an extant case is the trial court. See, for example, Mills v. R. (1986), 26 C.C.C. (3d) 481 (S.C.C.); and, R. v. Rahey (1987), 33 C.C.C. (3d) 289, 298 (S.C.C.), per Lamer J.; and, 318, per La Forest J.

¶ 39  The jurisdiction of the trial court to grant Charter relief is not, however, exclusive. The superior court of criminal jurisdiction has constant, complete and concurrent jurisdiction with the trial court for applications under Charter s. 24(1). See, Mills v. R., supra, at p. 494, per McIntyre J.; and, at p. 517, per Lamer J.; and, R. v. Rahey, supra, at pp. 298-9, per Lamer J.; and, at p. 319, per La Forest J. I am unable to conclude that the court in Stinchcombe, supra, by its repeated reference to "the trial judge" as the arbiter of complaints of inadequate prosecutorial disclosure, sidelined the constant, complete and concurrent jurisdiction of the superior court expressly recognized in Mills, supra, and Rahey, supra. It is all the more so where, as here, there is no trial court within reach, and there is a need to adjudicate upon the application to determine whether a constitutional infringement has occurred.

¶ 40  In the result, I am satisfied that as a judge of the superior court, I have jurisdiction to entertain this application and ought do so where the trial court is not within reach.

¶ 41  There is no doubt, nor can there be, that the applicant is entitled to disclosure of the video tapes which the prosecutor alleges are child pornography, or obscenity, as the case may be. What is sought is disclosure of the evidence upon which the prosecutor relies to establish criminal liability. The material sought is within the control of the prosecutor. It is not clearly irrelevant, nor is it the subject of a claim of privilege.

¶ 42  Whether disclosure of the subject-matter of the charges should be given is not the issue. The issue concerns the form of disclosure.

¶ 43  In R. v. Stinchcombe (1995), 96 C.C.C. (3d) 318, the Supreme Court of Canada held that the constitutional entitlement of an accused to full disclosure of the prosecutor's case does not require production of documentary originals. The constitutional obligation may be answered, inter alia, by permitting inspection of originals. In other words, what the constitution requires is prosecutorial disclosure. It does not insist upon a particular form of disclosure as a constitutional prerequisite.

¶ 44  The Martin Committee recognized that video recordings may play a variety of roles in the investigation of allegations of crime. In its recommendations, the Committee described the form of disclosure which it would require by reference to three categories of video recordings: i) statement of persons other than an accused who have provided relevant information to the authorities; ii) statements of an accused to a person in authority; and, iii) anything other than a statement made by a person.

¶ 45  It was recommendation 12(c)(iii) of the Committee that, for statements in category i, supra, the prosecutor should provide to the accused, a reasonable opportunity, in private, to view and listen to the original or a copy of the video recorded statement of a potential non-accused witness. In the Commentary which accompanied recommendation 12(c), however, the Committee emphasized that nothing in their recommendation precluded the usual practice of disclosure by copies: Crown counsel is not, however, precluded by the recommendations from providing the defence with copies of video or audio taped statements whenever appropriate. . . . However, by custom in this province, the Crown generally supplies copies to the defence of disclosure material, a practice which this Committee generally endorses, as discussed in the general recommendation on point. See, Report, at pp. 222-223; and, 225-226.

¶ 46  In recommendation 12(e), the Committee proposed that, for video recorded statements of the accused, category ii, supra, the prosecutor should provide "a copy of, and a reasonable opportunity to view and listen to, any original ... video ... recorded statement of the accused to a person in authority".

¶ 47  The Committee considered disclosure of video recordings of anything other than statements of witnesses or accused, category iii, supra, in its recommendation 12(h). It proposed that, where i) the recordings are reasonably capable of reproduction; and, ii) the prosecutor intends to introduce the recordings into evidence, the normal method of disclosure should be by copies of the recordings.

¶ 48  The Committee also recognized, however, that, for category iii recordings, other interests may require a departure from the normal method of disclosure by copies. The other interests which the Committee identified included: i) a reasonable privacy interest of victim(s) or witness(es); ii) a reasonable security interest of victim(s) or witness(es); or, iii) any other reasonable public interest.

¶ 49  It is made clear, however, that it is not the mere existence of any or all of the enumerated interests which permits the alternative form of disclosure, private viewing. It is only if an enumerated interest cannot be satisfied by an appropriate undertaking from defence counsel that this alternative, but constitutionally sound form of disclosure is justified. See, Report, pp. 234-235.

¶ 50  Categories ii) and iii), supra, represent the video recordings which the prosecutor is more likely to tender for reception in evidence at a criminal trial. If admitted, the recordings are filed as exhibits and constitute some of the evidence which the trier of fact will consider in deciding the case. The recordings in category i may also be admitted, but they are tendered for reception less frequently and engage other admissibility considerations. See, for example, Criminal Code, ss. 715.1; and, R. v. B. (K.G.) (1993), 79 C.C.C. (3d) 257 (S.C.C.).

¶ 51  It may fairly be said that, where a video recording is more likely to be tendered and may be admitted as evidence in criminal proceedings, the Committee recommended that disclosure of it be by copy. Private viewing may be permitted, however, where there are countervailing interests of significance which cannot be adequately protected by imposing conditions on disclosure of copies.

¶ 52  There may exist in this case reasonable privacy interests of the children whose activities are depicted in the video recordings. There is also a significant public interest, reflected in the prohibitions of ss. 163.1(2) - (4) of the Criminal Code, in ensuring that no duplication or distribution occurs in the disclosure process.

¶ 53  It is not suggested that the applicant, his counsel and any expert(s) retained by the defence are not entitled to view the video recordings whose contents are said to constitute the offences charged. Prima facie, the applicant is entitled to copies of the disclosure materials.

¶ 54  The prosecutor pointed to a prohibition contained in the Crown Policy Manual which instructs that "the tape itself" of a child sexual assault complainant's disclosures to investigators is not to be provided to defence counsel, without a court order. She also expressed concern that copying is itself an offence, as is possession of the copy tape by defence counsel and any expert.

¶ 55  The instructions contained in the Crown Policy Manual cannot prevail over the constitutional obligations of the prosecutor. In cases of conflict, the Manual must give way, not the supreme law of the country. Whether the contents of the videos are child pornography or obscene is for a court to determine. It is not for the investigators or prosecutor to decide. Further, it is inconceivable to me that supply or receipt of disclosure materials under a constitutional obligation or right amounts to a criminal offence, if the materials are later found to be child pornography or obscene.

¶ 56  The privacy and public interests which I have identified only warrant disclosure by private viewing if they cannot be satisfied by an appropriate undertaking by defence counsel. The undertaking is not for the purpose of prohibiting or impeding the viewing of the tapes by the applicant, his counsel or any expert retained by the defence. Of that form of disclosure, the prosecutor cannot and does not complain. There is a matter of constitutional entitlement that cannot be swept aside.

¶ 57  It is necessary, however, that the privacy and public interests identified earlier not be further compromised by copying, viewing, circulation or distribution of the tapes beyond what is necessary to give effect to the applicant's constitutional right. The issue is whether, by conditions attached to the disclosure of copies, the desired result and necessary balance can be achieved. I am satisfied that, in this case, it can be.

¶ 58  To ensure that the privacy interests of the children depicted in the recordings, and the public interest in ensuring that what may be child pornography or obscene is not further distributed, the following conditions shall be included in an undertaking signed by counsel for the applicant before supply of any copy tapes: i) that counsel for the applicant is to retain in his possession and control, at his place of business or residence, the copies provided, and not release them to anyone other than an expert in accordance with condition ii, infra; ii) that counsel for the applicant is permitted to provide any copy furnished by the prosecutor to any expert retained by the defence in order to prepare the applicant's defence, provided the expert retains the copy in his or her possession and control, at his or her place of business or residence, and returns them to counsel for the applicant for secure keeping upon completion of his or her examination of them; iii) that the applicant is not to have possession or control of the video tape for any purpose; iv) that no one is to be permitted to view the video tapes except the applicant, his counsel and any expert retained by the defence for the purpose of preparation of the applicant's defence in these proceedings; v) that the video tapes provided are not to be copied by anyone for any purpose; and, vi) that the video tapes provided are to be returned to the investigating officer by whom they were disclosed, or his or her designate, immediately upon conclusion of the retainer of present counsel for the applicant or trial proceedings, whichever shall occur first.

¶ 59  The disclosure which is sought lies at the core of the prosecutor's case. It is what the prosecutor alleges is child pornography or obscene. It is the prosecutor's obligation to provide such fundamental or basic disclosure. It is the prosecutor's further obligation, in my respectful view, to pay for it.

¶ 60  To impose upon the prosecutor the obligation to pay the costs of disclosure of copy tapes, in the circumstances of this particular case, coincides with general principle. Disclosure is a constitutional right of every person accused of crime. There is a correlative obligation upon the state to respect that right, as fully as it is given. The state's duty involves providing a benefit to the accused, not merely refraining from interference with the right. The obligation is unconditional. It does not come with a price tag, at all events, for disclosure of what is fundamental to the prosecutor's case. This is not an exceptional case where disclosure may be accomplished by providing an adequate opportunity to view the relevant recordings.

¶ 61  For the reasons given, the application is allowed. A copy of the tapes alleged to be child pornography or obscene is to be furnished to counsel for the applicant upon provision of the undertaking to the prosecutor and its filing with the clerk of this court.