R v Charlery, 2011 ONSC 2952 (Benotto):

[26] Certainly, there is a privacy concern that attaches to contact information. The Crown retains reviewable discretion as to the manner and timing of disclosure where the circumstances are such the disclosure in the usual way may result in harm to any one or prejudice to the public interest As discussed in R. v. McNeil, “any number of persons” may have residual privacy interests in the material gathered during the investigation. This includes personal phone numbers and addresses. However: Implicit in the Crown’s broad duty to disclose the contents of its file under Stinchcombe are not the absence of any residual expectation of privacy, but rather the following two assumptions. The first is that the material in possession of the prosecuting Crown is relevant to the accused’s case. The second assumption is that this material will likely comprise the relevant material in the Crown’s possession for the purpose of making full answer and defence will, as general rule, outweigh any residual privacy interest held by third parties in the material. These two assumptions explain why the onus is on the Crown to justify the non-disclosure of any material in its possession.

[27] Thus, the starting point should be that the contact information is to be disclosed. Where the Crown has reason to believe that disclosure would risk harm, the Crown may not disclose and the matter could be reviewed by the Court, with the assessment of harm and the balancing of interests considered on a case by case basis. The Court will balance the nature of the intrusion into the privacy concerns with the rights of the accused.

[28] The disclosure of simple contact information of the witnesses creates a minimal intrusion into the privacy of the person. It is far outweighed by the right of an accused to prepare for trial.

[29] The Crown also raised general security concerns. No specific concerns were raised. The Crown took the position that an inquiry could be made. The procedure proposed by the Crown for that inquiry was meant to determine if concerns exist with respect to both privacy and security.

[30] In this case, of the over 22 people were interviewed. There is no indication in the notes of the interviews or the video statements that anyone requested non-disclosure.
[31] Just as “care must be taken” to ensure that witnesses should not be left with the impression that they should not speak to the defence, so too must care be taken when inquiring into the existence of harm in the first place. The manner of the inquiry can easily convey the message that consent should not be given.

[32] The Crown’s process involves a risk that the witnesses will be tainted against the defence. The witnesses have now been brought to court twice. One could infer they are not pleased. One could also infer that they know they were brought to court because the defence wanted their contact information. What could have been dealt with by a simple phone call on behalf of the defence has now involved two court attendances where nothing (from the witness’s perspective) happened. A reasonable person might infer that disclosure of his or her contact information is something of serious concern. These court attendances follow the contacts by VWAP workers to some of the witnesses where “concerns” about this matter were “validated.”

[33] It would not be appropriate for the court to conduct a voir dire in the form of an inquiry to determine if privacy or security concerns exist. In the absence of any real issues actually raised, such a process would be prejudicial to the accused. It would be highly suggestive to the witness. It would telegraph to the witness that this was such a serious concern, court intervention and/or protection is called for. The process is also unnecessary. The witnesses are all adults, presumed capable of responding to a defence request for an interview with a simple yes or no.

[34] The Crown’s alternative suggestion that the defence take the opportunity to ask the witness in the courthouse if he or she will release contact information is equally unacceptable. The defence is entitled to conduct its own investigation and contact the witnesses as it sees fit.

[35] The issue of privacy and security concerns relating to contact information were squarely dealt with by the trial judge in the Robert Pickton case. Robert Pickton is one of Canada’s most notorious mass-murderers. His very name is recognized across the country and strikes fear in the minds of many. It is fair to say that this was a case where privacy and security of witnesses could reasonably be raised. Justice Williams required the contact information be disclosed to the defence. He said: It is fundamental that in furtherance of the right to make full answer and defence, an accused must be able to conduct full inquiry into potential sources of information that may prove valuable. … … While I am sensitive to the interests that the Crown seeks to protect, more specific and articulated concerns in this regard are necessary to justify withholding the contact information from the defence.

[36] Here, defence counsel has undertaken not to disclose the contact information. To be clear, the information can only be used by counsel, his investigation and legal team. It is not to be disclosed to anyone else without court order. This includes his client and his client’s family, friends and witnesses.

[37] The Crown is to provide the contact information for the witnesses forthwith.