What is “Disclosure” in your criminal case?

If you are facing criminal charges in Calgary you probably appeared in Court and heard the judge tell you: Contact the Crown and order your disclosure.

This post explains what disclosure is and why it is so important to obtain before you take any steps in a file.

In criminal law, “disclosure” refers to the process through which the prosecution (the Crown) provides the defence with all the evidence and information that is relevant to the case. This process is a fundamental part of the criminal justice system. The right to make full answer and defence is one of the pillars of criminal justice upon which Canadians heavily rely to ensure the innocent are not convicted. As expressed by Justice Sopinka of the Supreme Court of Canada: The overriding concern is that a failure to disclose hinders the ability of the accused to make full answer and defence.

Full answer and defence is not limited to properly preparing for trial. It also applies to the ability to advance defence applications for exclusion of evidence or other procedural motions in response to the charges. For this reason, disclosure should be made as early as possible, certainly before you decide whether to plead guilty or not guilty.

Increasingly, disclosure is provided in electronic formats, making it easier to manage and review large amounts of data. Some types of evidence that disclosed in a given criminal case includes but is not limited to:

• Police Reports and Notes: Detailed accounts of the investigation.
• Witness Statements: Recordings and written statements of civilians involved in the investigation.
• Physical Evidence: Items collected during the investigation.
• Expert Reports: Analyses and conclusions from forensic experts.
• Accused’s Statements: Any statements made by the accused to the police.
• Photographs and Videos: Visual evidence relevant to the case.
• Criminal Record: If applicable, the criminal record of the accused or civilian witnesses involved in the case.
• Affidavits and judicial orders: In more complex cases, the police will apply to judge to authorize a search of a car, home, or business.

It is important to understand that the prosecution is legally required to disclose all evidence it has gathered, whether it intends to use it at trial or not. This includes evidence that might be favorable to your defence.  Information must be disclosed if there is a reasonable possibility that withholding it will interfere or hinder the right of the accused to make full answer and defence. The Crown’s obligation to disclose is continuing and ongoing, and the Crown must continue to make disclosure as and when additional information becomes available. The Crown also has an obligation “to make reasonable inquiries” with third-party states authorities who are believed to be in possession of relevant materials. The Crown cannot sit on their hands when they know there is relevant information in the hands of a state authority.

At the same time, law enforcement agencies also have an obligation of disclosure to the prosecuting Crown. These agencies must disclose to the prosecuting Crown any additional information that is “obviously relevant” to the accused’s case. This “obviously relevant” information may not be within the investigative file relating to your case, but, depending on its contents, must be disclosed “because it relates your ability to defence the case”.

Sometimes due to the complexity/size of the case, administrative errors, disagreements over whether information should be disclosed, or poor police work, disclosure is incomplete. At that point, an accused or a lawyer acting on the accused behalf can make a disclosure request. Such a request may be made at any time after the charge. The Crown obligation to disclose will be triggered by a request by or on behalf of the accused.

The disagreements about what should be disclosed often stem from exceptions to the Crown disclosure obligations such as: information that is not relevant to the prosecution or the defence, information that the Crown does not have in its possession, and information that is privileged or otherwise sensitive. For instance, the Crown will resists disclosing the identity of police informants or any information that could identify them for safety reasons and to avoid compromising ongoing investigation.

If the prosecution fails to disclose evidence, the defense can bring a motion to compel disclosure. Non-disclosure can result in a stay of proceedings or other remedies such as a postponement of a trial or an order for disclosure.

Overall, disclosure is a complex area of criminal law and it is important to hire a lawyer who understands the law of disclosure and can assess the disclosure in your case. Never assume that the disclosure in your case is complete. Running a trial without disclosure can result in a wrongful conviction.

If you have any questions about your criminal disclosure please contact Yoav Niv for a free consultation.