Why disclosure is a fundamental right of the accused

Why disclosure is a fundamental right of the accused

By Greg Dunn

If you are charged with a criminal offence in Canada you have a right to know what evidence police have compiled to support that charge. That can be done by reviewing what is called a disclosure package that could include:

  • The charges laid against you.
  • A summary of the evidence including a list of witnesses.
  • Notes taken by officers during their investigation.
  • Testimony from any witnesses.
  • Your criminal record.
  • Expert testimony or reports.
  • Results of any tests performed, such as a breathalyzer or drug screening.
  • Medical records from the complainant.
  • Photographs or video footage.
  • Audio recordings and/or transcriptions from 911.
  • Other relevant details about the circumstances of your arrest.

You and your lawyer need to examine the disclosure package so we can prepare a full and fair defence. It will also inform your decision on what to plead.

Disclosure is a Charter right

This right to disclosure flows from s.7 of the Canadian Charter of Rights and Freedoms. It states 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.”

As the Department of Justice notes, “It is a fundamental element of the fair and proper operation of the Canadian criminal justice system that an accused person has the right to the disclosure of all relevant information in the possession or control of the Crown, with the exception of privileged information. Relevance, in this context, has been found by the courts to mean that there is a reasonable possibility of the information being useful to the accused person in making full answer and defence.”

Disclosure must be made in a timely manner and on an ongoing basis. That means that the Crown is required to provide you with disclosure before the trial. In addition, they must continue to disclose any new and relevant evidence that comes to light.

Certain types of information do not need to be disclosed, such as evidence protected by solicitor-client privilege or irrelevant materials. In some cases, the Crown may request to withhold evidence to protect privacy or safety (the identity of informants or undercover officers), but such cases require court approval.

Typically, you or your attorney receive your disclosure with the assistance of duty counsel during your first court appearance. Alternatively, it can be obtained by submitting a written request to the Crown attorney’s office.

If you are charged with a drug offence or any other crime that comes directly under federal jurisdiction, you must contact the Federal Crown Prosecutor’s office. For other charges, such as theft or fraud that are listed in the Criminal Code, your disclosure will be handled by the provincial Crown prosecutor’s office.

Landmark case

The legal principles applying to disclosure in criminal matters were set down by the Supreme Court of Canada (SCC) in a landmark case in 1991.

A lawyer was charged with breach of trust, theft and fraud. During his trial, the Crown withheld a statement from his former secretary because the prosecution believed it was not relevant to its case. He was found guilty at trial and on appeal. But the SCC ruled in his favour, stating the Crown must disclose all relevant evidence.

This ruling established a precedent that has guided disclosure obligations ever since. The key points of the ruling include:

  • The Crown has a duty to disclose all evidence in its possession that is relevant to the accused's case. This includes inculpatory (evidence suggesting guilt) and exculpatory (evidence suggesting innocence) information.
  • Relevance must be assessed in relation both to the charge itself and to the reasonably possible defences.
  • The only exceptions would be information that is privileged or plainly irrelevant.
  • Relevant information must be disclosed whether or not the Crown intends to introduce it in evidence, before election or plea.
  • All statements obtained from people who have provided relevant information to the authorities should be produced, even if they are not going to be Crown witnesses.
  • The Crown’s role is not simply to seek a conviction, but to ensure a fair and just process. This duty to disclose aligns with the principle that the Crown must act as a “minister of justice” rather than merely as an advocate.

Remedies for Non-Disclosure

If the Crown fails to fulfill its duty of disclosure to you, your lawyer can seek various remedies. They include:

  • An adjournment to review the late-disclosed evidence.
  • Exclusion of evidence that was not properly disclosed.
  • A stay of proceedings in cases where non-disclosure has impacted the fairness of the trial.
  • Appeal rights if the failure to disclose impacted the trial outcome.

Failure to disclose led to stay in Alberta

A sexual assault charge was dropped against a southern Alberta man in 2022 after Blood Tribe police failed to hand over key evidence, despite at least a dozen requests over three years.

According to court documents, the man was charged with sexual assault in May 2019. By May 2022, the key piece of evidence ­– a rape kit – had still not been handed over to his lawyer.

In her decision to stay the charges, a Provincial Court judge wrote that the police service and Crown failed to act “in a manner consistent with the most basic and fundamental rules of fair play in criminal law."

The judge stated that “this case is about evidence which the Crown failed to disclose in the prosecution of a serious crime. It therefore relates entirely to public confidence in the administration of justice.”

She added that “the public presumes stakeholders engaged at every stage of a criminal investigation and prosecution employ the best practices, that they engage in fair play, and that they respect the public trust placed in them. This case has undoubtedly shaken that public trust.”

Contact us for assistance

Disclosure is a fundamental component of the Canadian justice system, balancing the rights of the accused with the public interest in a fair and just legal process. The team at Dunn & Associates has years of experience with defending clients against a myriad of charges. Contact us for a free consultation.