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Disclosure: What does that even mean?

You are charged with a criminal offence, such as a domestic assault. You are released from the police station, given a date to appear in court and told that if you fail to appear in court, you could be subject to a bench warrant. But really what you are not told is about the next steps in the process and what to expect from this whole process. One of the most important steps after you have been released from custody is to receive the disclosure in your matter. Your disclosure is essentially the evidence gathered by the police to support the laying of the charges against you. It may involve written witness statements, police notes, photographs, video statements, video surveillance, or anything else that the police gathered during the course of their investigation.

In the early 1990s, the Supreme Court of Canada unequivocally held that the Crown had a legal duty to disclose all relevant information to the defence, regardless of whether it was helpful for the Crown or the defence. While this duty is not absolute with regards to all information, the expectation is that an accused person will have the fruits of the investigation early on in their case to be able to make full answer and defence and to help them decide how they should proceed with their case. At paragraph 12 of the case, the Court explained the rationale for what is now known as the Crown's Stinchcombe disclosure obligation (named after the decision):

I would add that the fruits of the investigation which are in the possession of counsel for the Crown 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. In contrast, the defence has no obligation to assist the prosecution and is entitled to assume a purely adversarial role toward the prosecution. The absence of a duty to disclose can, therefore, be justified as being consistent with this role.

Apart from providing initial disclosure to the accused, the Supreme Court of Canada explained that the duty of the Crown was an ongoing duty. Therefore, where an investigation continues or where the police and the Crown come into possession of further disclosure, the Crown has a duty to disclose this new information.

Typically, after you are charged, given a court date and retain counsel, the next important step is to receive your disclosure. It is important to not only know the allegations or charges, but to understand the strength of those allegations. What are the witnesses saying they saw? Is there any documentary evidence to support the case? Is there video surveillance or photos? Equally important is to see whether there is disclosure that exculpates you of the allegations. A lawyer will be able to guide you through the court process and ensure that your rights to full answer and defence are being protected. Furthermore, a lawyer can go through the disclosure, discuss with you the strengths and weaknesses of the case against you and defend you against the allegations.

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Disclosure: What does that even mean? | Bayne Sellar Ertel Carter