OBTAINING DISCLOSURE WHEN CHARGED WITH A CRIMINAL OFFENCE
A constitutional right to disclosure is part of one’s right to provide a full answer and defence, guaranteed by section 7 of the Canadian Charter of Rights and Freedoms (the Charter), when charged with an offence. Likewise, the Crown’s duty to disclose all relevant evidence to the defence is recognized at common law as a component of the accused’s right to a fair trial. This obligation to fulfill that guarantee under the Charter rests on the Crown, who is ultimately responsible for ensuring that an accused receives full and timely disclosure of materials in the Crown’s possession or control. It is consistent with the Crown’s public guardian and quasi-judicial role as an officer of the court to see that justice is served. The Supreme Court of Canada stressed this principle by stating (in Stinchcombe, 1991) “the fruits of an investigation 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 accused’s ability to make a full answer and defence rests largely on disclosure, which is also its general purpose. Therefore, prior to electing a mode of trial or entering a plea, the defence is entitled to receive and consider initial disclosure at an early stage after the laying of charges. Despite the fact that obligation is an ongoing process and full disclosure should be provided as soon as it is reasonably possible, it is not always observed. Through all stages of the prosecution including post-conviction, this disclosure obligation continues, because the evidence might affect the validity or integrity of the trial. Thus, a disclosure obligation ensures both the right to a full answer and defence and protects against wrongful convictions. If you feel that you have had a wrongful conviction placed on you, make sure to find a reliable criminal defense attorney clearwater fl.
In addition, benefits from timely and full disclosure include the early resolution of cases, including both a guilty plea or appropriate withdrawal of charges. Furthermore, if the matter is not resolved, disclosure helps in resolving issues in advance of the preliminary hearing or trial, so that court time is used more effectively.
Form and Content
Disclosure has been given a broad threshold requirement quite intentionally. Simply stated, it requires Crown counsel to disclose all information in their possession or control to the accused, whether inculpatory or exculpatory, subject to the Crown’s exercise of discretion to refuse to disclose information that is privileged or plainly irrelevant. In fact, the Crown has to disclose all relevant material, whether or not the Crown intends to introduce it in evidence. Here, relevance means full answer and defence, and is met if the defence could reasonably use the information to answer the Crown’s case, advance a defence, or make a decision affecting the conduct of the defence. This broad threshold requirement for disclosure ensures that the defence receives all material, including information that may only have marginal value to its cause.
Irrelevant information need not be disclosed. It is good if the Crown errs on the side of caution, disclosing all information unless it is clearly irrelevant. It is also expected that the Crown will not disclose information that it is legally obliged to withhold due to privilege. It will be good and proper if the Crown inform the defence that disclosure is being delayed or limited along with a general description of the information and the reason for withholding the information.
Defence counsel’s request for disclosure is the beginning of the Crown’s disclosure obligation. The request is made in writing, both to ensure the creation of a record should any disclosure-related issue have to be litigated and to allow for easier processing of the request.
In a perfect world, the accused receives full disclosure upon request at the first appearance. As perfection is difficult to achieve, initial disclosure is often incomplete. Again, ideally, full disclosure, based either on the Crown’s view of the matter or shaped by defence requests, should be made in advance of the preliminary inquiry, but it can be completed afterwards if done sufficiently in advance of the trial. It is helpful if the Crown and defence counsel state their points of view on disclosure with a view to resolving the dispute before the matter reaches the trial stage. Admittedly disagreements between defence and Crown counsel on disclosure issues are rare, but there are occasions when the Crown decides to withhold or delay disclosure. This unwillingness of Crown counsel not to disclose, whether on the ground of privilege or relevance, is judicially reviewable. A written record including a detailed demand for the disclosure at issue is very helpful in arguing a motion for disclosure or any other remedy down the road. If disclosure is not pursued in a diligent fashion by the defence, it would be difficult to make use of certain remedies for non-disclosure subsequently.
Disclosure usually is in the form of a copy of materials forming the Crown brief, including copies of any audio or video tapes of evidence. Defence counsel has a positive obligation to ensure Proper use and dissemination of disclosed materials is the responsibility of the defence. Perhaps, in some instances, it would require defence counsel to make a formal undertaking to return the materials to the Crown upon completion of the case. If a witness’ privacy is invaded, such as videotaped statements, or the matter is very sensitive, such as pornography like porn videos that can be found on websites such as https://www.tubev.sex/categories/1852/big-pussy or child pornography, defence counsel can be asked to sign an undertaking or be given an opportunity to inspect the disclosure in a private viewing.
There is no question of defence paying for basic disclosure, meaning the material supplied to Crown counsel by the police to prosecute the case. There are occasions when the Crown requests payment for additional copies or disclosure in a different form. Printouts of materials (otherwise available in an electronic form) are not relied upon by the prosecution, generally.
Take, for instance, large, complex fraud cases involving disclosure in an electronic media, such as CD-ROM or some other format, both because the disclosure is easier to access and more cost-effective. Even then, defence for their own reasons request production of disclosure in hard copy.
Besides relevancy, the Crown could also exercise its discretion to refuse disclosure on the ground that the information requested is not within its control or is privileged. If the non-disclosure is claimed for reasons like these, the defence should be notified of the existence of that material. Because, if questions are raised over the non-disclosure, the onus is on the Crown to justify the non-disclosure.
As for relevance, it may not be readily apparent to Crown counsel, yet be highly relevant to the defence. But, then, the defence may not be willing to divulge their strategies so early. Having regard to the Crown’s obligation to disclose, any undisclosed information should be disclosed if and when the relevance of the information later becomes apparent or additional relevant information is obtained from interviews of Crown witnesses. This obligation to disclose does not go away; it continues through the appeal process. Even after the conclusion of all proceedings, if exculpatory information comes to the attention of Crown counsel raising a doubt as to the accused’s guilt, or which may have assisted the accused in his or her defence, it should be divulged.
Getting all the info in the possession, control or knowledge of the Crown is the first step to providing a defence! Contact the lawyers at Levy Zavet PC to ensure no delay in obtaining full and complete disclosure in your criminal matters.