Disclosure: What You Need To Know
November 17, 2015
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.