Toronto Criminal Lawyer

The Foundation of Your Defence

Crown disclosure is the process by which the prosecution provides the defence with the evidence and information it has gathered in relation to the criminal charges. In Canadian criminal law, the Crown has a constitutional obligation to disclose all relevant information to the accused, whether that information helps or hurts the prosecution's case. This obligation flows from the Supreme Court of Canada's landmark 1991 decision in R v Stinchcombe and is grounded in the accused's right to make full answer and defence under section 7 of the Canadian Charter of Rights and Freedoms.

Disclosure is not a courtesy. It is a fundamental right. Without complete disclosure, an accused person cannot properly prepare a defence, and the risk of wrongful conviction increases. For a more detailed overview of the disclosure process, see our dedicated page on Crown disclosure.

What Is Included in Disclosure

The scope of Crown disclosure is broad. The Crown is required to provide all information that is reasonably relevant to the case, regardless of whether it intends to use that information at trial. This includes:

• Police reports and notes — The investigating officer's notes, occurrence reports, supplementary reports, and any other documentation created during the investigation.
• Witness statements — Statements provided by witnesses to police, whether written, audio-recorded, or video-recorded. This includes statements from the complainant.
• Physical evidence — Information about any physical evidence seized or collected, including photographs, forensic reports, and exhibits.
• Expert reports — Reports from forensic analysts, toxicologists, medical professionals, or other experts who may provide evidence in the case.
• Video and audio recordings — Surveillance footage, body-worn camera recordings, 911 call recordings, and any other audio or video relevant to the case.
• Criminal record of the accused — The accused's prior criminal record, if any.
• Criminal records of witnesses — If a Crown witness has a criminal record, this must be disclosed as it may be relevant to the witness's credibility.
• Informant information — While the identity of confidential informants is protected by informer privilege, any information provided by informants that is relevant to the case must be disclosed in a manner that protects the informant's identity.

Importantly, the Crown must also disclose information that is favourable to the defence. This includes evidence that contradicts the Crown's theory, inconsistencies in witness statements, evidence suggesting an alternative suspect, and any other material that could assist the accused in mounting a defence.

When Disclosure Is Provided

Disclosure is typically provided after the first court appearance. At the first appearance, the matter is usually adjourned to allow the Crown to prepare and provide disclosure to the defence. In straightforward cases, disclosure may be available within a few weeks. In more complex cases, particularly those involving large volumes of evidence, forensic analysis, or multiple accused persons, complete disclosure can take several months.

Your lawyer will request disclosure from the Crown and follow up if it is delayed or incomplete. In practice, obtaining complete disclosure can sometimes require persistent effort, and there are cases where important materials are not provided until they are specifically requested.

It is important to understand that your case cannot properly move forward until disclosure has been received and reviewed. Adjournments to obtain and review disclosure are a normal and necessary part of the criminal process, not a delay to be avoided.

Why Disclosure Review Is Critical

The disclosure package is the single most important body of material in your case. Everything your lawyer does, from advising you on your options to developing a defence strategy to negotiating with the Crown, depends on a thorough review of disclosure. Here is why careful review matters:

Identifying weaknesses in the Crown's case. The disclosure may reveal that the evidence against you is weaker than the charges suggest. Witness statements may be inconsistent, physical evidence may be ambiguous, or there may be gaps in the investigation that undermine the Crown's ability to prove its case beyond a reasonable doubt.

Discovering Charter violations. The disclosure may reveal that your rights were violated during the investigation. For example, the police notes may show that you were not promptly informed of your right to counsel, that a search was conducted without proper authorization, or that statements were obtained in violation of your right to silence. If Charter violations are identified, your lawyer may bring an application to exclude the improperly obtained evidence.

Evaluating witness credibility. Reviewing the statements of Crown witnesses allows your lawyer to assess their credibility and identify potential areas for cross-examination. Inconsistencies between a witness's statement to police and their expected testimony at trial can be powerful tools for the defence.

Informing plea negotiations. If your lawyer identifies significant weaknesses in the Crown's case, this strengthens your position in plea negotiations. A well-prepared defence, grounded in a thorough review of disclosure, often leads to better outcomes in negotiations.

What If Disclosure Is Incomplete or Late

Despite the Crown's constitutional obligation, there are cases where disclosure is incomplete, late, or not provided at all. When this happens, your lawyer has several options:

• Written request — Your lawyer can send a detailed written request to the Crown specifying the materials that are missing or outstanding.
• Bringing a disclosure motion — If informal requests are unsuccessful, your lawyer can bring a motion before the court compelling the Crown to produce the outstanding disclosure. The court can order the Crown to provide the materials by a specific date.
• Stay of proceedings — In extreme cases where the Crown has failed to provide disclosure and the failure has caused irreparable prejudice to the accused's ability to make full answer and defence, the court may stay the proceedings, effectively ending the prosecution.
• Adjournment — If disclosure arrives late, your lawyer can request an adjournment to allow adequate time for review. Late disclosure that arrives during or just before trial can be grounds for an adjournment or other remedy.

The principle established in Stinchcombe is clear: the Crown cannot withhold relevant information from the defence. When disclosure is incomplete, the fairness of the entire proceeding is compromised, and courts take this seriously.

Your Role in the Disclosure Process

While your lawyer handles the legal work of obtaining and reviewing disclosure, you have an important role to play as well. You know the facts of your case better than anyone, and your input can help your lawyer identify issues that might otherwise be missed:

• Review the disclosure with your lawyer — Your lawyer will typically provide you with a copy of the disclosure or review it with you in detail. Read through it carefully and note anything that seems inaccurate, incomplete, or inconsistent with what you know happened.
• Identify missing evidence — If you know of witnesses, surveillance cameras, or other evidence that should exist but is not included in the disclosure, tell your lawyer. The Crown may not be aware of this evidence, or it may have been overlooked.
• Ask questions — If you do not understand something in the disclosure, ask your lawyer to explain it. An informed client is a better participant in their own defence.

If you are facing criminal charges in Ontario and have questions about the disclosure process or any other aspect of your case, speaking with a criminal defence lawyer is the best first step. The disclosure is the foundation of your defence, and having it reviewed by an experienced professional is essential.

For more information about the rights of accused persons in Canada, including the right to disclosure, visit the Ontario government's criminal law information page.