Category Archives: Tips & How To’s

Disclosure: What You Need To Know

Every individual charged with a criminal offence will receive a “disclosure” package. The primary purpose of disclosure is to ensure that an Accused party knows the case to be met, and is able to make full answer and defence. Generally, the Crown has an obligation to disclose all information in its possession and control unless said information is clearly irrelevant or subject to a claim of privilege.

The following legal principles govern the provision of disclosure in Canadian criminal cases

[Regina v. Stinchcombe (1991), 3 S.C.R. 326]:

  • The Crown has a legal duty to disclose all relevant information to the Defence.
  • The fruits of the investigation which are in its possession are not the property of the Crown for use in securing a conviction, but the property of the public to be used to ensure that justice is done.
  • The obligation to disclose is subject to a discretion with respect to the withholding of information and to the timing and manner of disclosure.
  • Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information.
  • Subject to the Crown’s discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory.
  • All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses.

Typically the following items will be in a disclosure package:

  • Synopsis (summary of the allegations)
  • Statements of the Accused (written; audiotaped; or, videotaped)
  • Statements of civilian witnesses (written; audiotaped; or, videotaped)
  • Police officer memorandum notes
  • Criminal record of the Accused
  • Copies of any associated court orders (e.g. Recognizance of Bail, Probation Order, etc.)
  • If applicable: surveillance video; documentary evidence (e.g. banking records); Expert Reports; etc.

It is important to note that “initial” disclosure packages do not include everything the Crown is obligated to disclose. For example, in some jurisdictions an Accused party has to request a copy of the 911 call. This is just the tip of the proverbial iceberg! It is important to choose an experienced lawyer who will request all relevant information. This requirement is even more heightened in “Drinking and Driving” cases (Impaired Operation, Excess Blood Alcohol, Impaired Care and Control, and Refuse/Failure to Provide a Breath Sample). Given the majority of these types of cases rely upon machinery (roadside Approved Screening Device and the Intoxilyzer at the police station), it is imperative that one’s lawyer requests the underlying technical data.

Ultimately, the more information you have, the greater the likelihood of success.

Some Questions to Ask Before you Hire a Lawyer…

Hiring a lawyer is something that you’ll likely be required to do at least once in your lifetime. Whether it’s for closing a real estate transaction, finalizing an estate, writing a will, or defending a criminal charge, there are some questions that you should ask yourself before hiring a lawyer.

1. Get to know the lawyer or law firm

Learn about the lawyer or the firm that you’re hiring:

  • Does the lawyer or firm have a website or pamphlet about the services which they offer?
  • Does the individual lawyer who will be working on your case have a biography?
  • Does the lawyer/firm have experience in the respective area of law for which you require them?
  • Has the firm/lawyer dealt with cases similar to yours?

2. Ask some questions pertaining to your case.

At this stage, keep in mind that you may have questions that the lawyer may be unable to answer due to a lack of information. Example: In criminal cases, a lot depends on whether or not you have “disclosure” (all the relevant evidence relating to your case/charge). Without the “disclosure” it is difficult, if not impossible, for the lawyer to answer specific questions about your case. Some questions you may ask are:

  • What are the possible outcomes of the case?
  • What procedures are involved in order to defend the case?
  • Is there a “rough” timeline?
  • Are there any factors that may result in additional fees?

3. The most common question we get is, “how much will this cost me?

Again, this often depends on whether or not the lawyer has all the information necessary to effectively evaluate your case and thereafter, provide you with an accurate price estimate. Some important questions to ask are:

  • Whether you will be provided a written retainer agreement?
    • What is a “retainer agreement?”
      • This is a written agreement (contract) between the lawyer and client that is the basis for the solicitor-client relationship.
      • When you hire a lawyer, you will be asked to both provide the retainer fee and sign the retainer agreement.
  • Whether the lawyer charges “hourly fees”, “block fees” or works on a “contingency” basis?
  • Are the rates subject to change through the progression of the case?
    • If so, by how much?
    • Further, if they are subject to change, will notice will be given?
  • If it is a larger firm, whether the rates will vary based on which member of the firm will be working on the case?
  • What kind of disbursements will there be?
    • What are disbursements?
      • Disbursements are expenses incurred by the lawyer or a law firm on your behalf. These are expenditures that are paid for by the lawyer or firm to a third party in order to deal with your matter.
  • When will I be “billed”?
  • Will I be issued “receipts” upon making payments?

4. Finally, you should ask questions about the manner in which you will be updated about your case.

  • What are the preferred methods of communication? E-mail? Telephone? Text messages? Face-to-face meetings?
  • How often will I be contacted by the lawyer or firm?
  • How long will I have to wait for a response to my calls or e-mails?
  • Who else in the firm can I contact if I cannot reach the lawyer directly?
  • What are appropriate times to meet the lawyer/firm face-to-face?

Keep in mind, the above questions are not exhaustive. Each area of law and each individual case has its own nuances and subtleties which may require you to take further steps depending on the nature of your legal issue. The above questions are simply a guide to assist you in hiring a lawyer or firm that will adequately suit your needs. Finally, it’s best to schedule a meeting and ask these questions in person. Many lawyers and firms (us being included) prefer not to engage in initial consultations via the telephone or e-mail.