Leave It Out of the File
Detective Constable M. is the lead on a robbery file. A convenience store clerk was shown a single photograph on a phone - taken from a public Facebook page by the first officer at the scene - and said, 'That's him.' The accused, 19, has no record. A second witness, a customer, told the first officer at the scene that the robber 'was much thinner and had a beard'; that statement is in the officer's memo book but not in the file. The staff sergeant says: 'The customer was drunk. The ID is solid. Leave it out, we're not cluttering the file.' The Crown's disclosure package is due Friday. Defence has also asked for any discipline on M.'s record; M. received a written reprimand in 2019 for an unauthorised search.
1. What is your disclosure obligation, and what do you do about the staff sergeant's direction?
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Rule: R v Stinchcombe requires the Crown to disclose all relevant, non-privileged material, including material that undermines the Crown's case or assists the defence, whether or not the Crown intends to call the witness. R v McNeil extends this to police misconduct records bearing on an officer's credibility or on the investigation.
Application: the customer's statement is squarely relevant - identification is the central issue - and it is exculpatory. You do not get to decide relevance by deciding the witness is unreliable. Credibility is for the defence to explore; the statement must go in.
The direction: withholding it is unlawful. It is a breach of your duty and could amount to obstruction (Criminal Code s. 139) or professional misconduct. You cannot follow it. Escalate in writing - to the staff sergeant first, then to the inspector or deputy chief, and to the Crown. Record the direction and your objection at the time you receive it; a contemporaneous note is worth more than a reconstruction months later.
Preserve: the memo book page and the original notes. Do not rewrite anything - if something needs correcting, make a separate supplementary note explaining what changed and why.
2. What are the problems with the identification evidence, and what should be done about it now?
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Problems:
- A single-photo 'show-up' taken from a Facebook page is inherently suggestive. The clerk knew the photo came from an investigation; that is the classic conditions for a mistaken identification.
- The procedure was not documented, and there is no record of what the clerk was told before he looked.
- The identification is essentially uncorroborated, and the only other witness contradicts it on build and facial hair.
- The first officer's memo book - the best contemporaneous record - is not in the file.
What to do now:
- Write a supplementary note setting out exactly how the photo was shown, by whom, what was said, and how long it took. Do this today, not after speaking to the Crown.
- Have the customer re-interviewed by an officer who was not involved, with a proper statement taken and documented.
- Consider a properly constituted lineup, but only if it will not compound the suggestion; a lineup run after a tainted show-up can make things worse.
- Put all of it before the Crown. Reliability is for the trier of fact, and the defence is entitled to the material needed to argue it.
Mindset: your job is not to protect the charge. It is to give the court the truest available picture.
3. What do you do with the defence request for the 2019 reprimand, and how do you answer if asked at trial whether the file is complete?
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The reprimand: under McNeil it is not automatically disclosable, but you do not make that call alone. Notify the Crown in writing, with the circumstances of the discipline and its relevance (if any) to M.'s credibility as a material witness in this case. The Crown decides on disclosure and may seek a court ruling. Deciding privately that the Crown does not need to know is exactly the conduct McNeil was written to prevent.
At trial: if asked whether the file is complete, the only answer is the truth - what is in the file, what you know about the customer's statement, that you raised it, and what happened when you did. 'Complete' is not a word you use if it is not accurate.
If pressed on the reprimand: answer honestly and give the circumstances. Evasiveness on a collateral credibility point is far more damaging than the reprimand itself - it converts a 2019 discipline matter into a current credibility finding against you.
The larger point: your duty is to the court and the administration of justice, not to a conviction. A file that is complete and honest can survive an unreliable witness; a file that has been curated cannot.