What is Disclosure in Criminal Matters?

Under Canadian law, everyone accused of a criminal offence has the right to understand the case against them.

This right originates from section seven of the Canadian Charter of Rights and Freedoms, which provides that:

 “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

The relevant evidence gathered against the accused is assembled into a package known as “disclosure”. It is a fundamental right for this exchange of information to happen promptly after charges have been filed against the defendant.

However, some of the information in the police investigation file may be classified as “privileged” and, therefore, not included.

One of the first jobs of your criminal defence lawyer will be to review this evidence (often called “initial disclosure’), request further information if necessary and start outlining your defence options based on the contents of the disclosure.

When do you receive the initial disclosure?

Generally speaking, the initial disclosure will be available from the Crown Attorney or Prosecutor at the first appearance in court after the defendant is released from the police station or after a bail hearing.

This means that the accused receives the relevant evidence to make an informed decision about whether to enter a plea of guilty or not guilty.

To obtain a disclosure package, a request can be made to the provincial Crown Prosecutor’s office. For drug offences or other offences under federal jurisdiction, an application should be made to the office of the Federal Crown Prosecutor.

If you have not yet hired a criminal defence lawyer and receive a disclosure package in court, you should provide your lawyer with a copy of every page, as well as any other paperwork provided by the police.

A seasoned defence lawyer may seek additional material from the Crown to ensure that nothing is missing from disclosure. This usually requires a thorough review of the disclosure package and letters from the lawyer requesting additional documentation.

The Crown Attorney is obligated to provide all of the relevant disclosure documentation promptly and without delay. There may be a distinct advantage to receiving the information as early as possible.

The period during which you seek disclosure can be especially daunting for a defendant, who may have been accused of a criminal offence for the first time. The guidance, advice and expertise of a criminal defence lawyer at this time can be of great value.

What does a disclosure package include?

The exact nature of the disclosure will depend on the alleged crime.

The contents are highly specific to the particular offence but must generally include any evidence that is useful to the defendant when making a full defence to the accusations.

Often, disclosure includes the following types of evidence:

• Full details of the record of the arrest of the accused
• A synopsis of the allegations
• Documents such as police notes
• Statements from witnesses
• Audio recordings
• Photographs
• Videos
• Information about weapons (if applicable)
• Computer data

If you have already hired a criminal defence lawyer, the disclosure package will be reviewed by your defence team before assembling your case.

Usually, as the defendant, you are entitled to know what’s included in the disclosure but, sometimes, defence lawyers must make undertakings to the Crown Prosecution to keep certain details from the defendant.

Different types of disclosure

In law, there are various types of “disclosure”, most notably:

• First-party disclosure: also known as the “fruits of the investigation” provided by the Crown.
• Third-party disclosure: material held by a person, organization or government department other than the investigator or prosecutor.
• Defence disclosure: information that allows the prosecution to understand the defence case.

Most of the time, when we refer to seeking disclosure in a criminal case, it is the first-party disclosure as described above.

A defendant does not generally have an equivalent obligation to disclose information as the Crown Prosecutor does. But certain information must be disclosed to the Crown and the Court — and your lawyer can advise you on that.

What are the basic rules of disclosure in criminal cases?

The Supreme Court of Canada has set out some rules for the Crown to follow with disclosure:

• The Crown must disclose all relevant information to the accused, subject to the discretion to refuse to disclose information that is privileged or plainly irrelevant.
• Relevance must be assessed in relation both to the charge itself and to the reasonable defences.
• The relevant information must be disclosed whether or not the Crown intends to introduce it in evidence.
• All statements obtained from persons who have provided relevant information to the authorities should be produced.

Generally speaking, the main disputes about disclosure centre on whether the information requested by the defence is relevant or not. In reality, little information is exempt from the duty imposed on the prosecution to disclose evidence. The threshold for evidence that must be included in disclosure is set quite low.

What if there are unreasonable delays with disclosure?

If there are unreasonable delays in obtaining criminal disclosure, the defendant may be able to rely on a “constitutional remedy”.  This refers to a remedy under section 24 (1) of the Canadian Charter of Rights and Freedoms:

24. (1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court of competent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

Hiring a criminal lawyer as early as possible in the process will ensure that your right to a trial without unreasonable delay is protected. Certain remedies such as a stay of proceedings may be available if there are unreasonable delays.

Call us to arrange a confidential consultation

To speak with Cory Wilson or arrange a free, no-obligation consultation with Wilson Criminal Defence, call 403-978-6052 or email us here.