You have been charged with a domestic assault and your lawyer says “Let’s make an appointment to review the disclosure”. You are wondering what you are going to be reviewing. Disclosure is all the relevant evidence, on your case, that the Crown has in their possession. It will include a summary of the Crown’s version of the incident, all the police notes and reports, witness statements, any video or audio evidence, expert reports, business records and any photos. The Crown must provide to your lawyer all evidence that will be used to prosecute you on the charges you are facing.
Your constitutional right to be able to make full answer and defence is the basis for the Crown’s obligation to disclose all relevant evidence. This relevant information includes evidence that supports their case as well as evidence that would be useful to you in defending the case. The reason the Crown’s disclosure obligations are much more onerous than that of the defence is as a result of the different roles each play. The Crown’s role is to ensure all credible evidence that is relevant to whether a crime was committed is placed before the trier of fact (Judge or Jury) so that an informed decision on guilt or innocence can be rendered. The Crown’s role, despite the appearance sometimes, is not to obtain a conviction but make sure the Court has all the evidence to enable them to make the proper decision.
The Crown’s disclosure obligations are far broader than those of the accused. Except for in a few situations the defence has no obligation to provide the Crown with any information. Their role is strictly adversarial. The Crown’s disclosure duty is to provide timely disclosure. That duty is also continuous and does not end with the initial disclosure package. As they come into possession of relevant disclosure they must disclose even as the trial is proceeding. If the Crown breaches their disclosure obligation it is an infringement of your Charter rights and there are a number of different remedies that could be obtained. There are three exceptions to the Crown’s disclosure obligation they are as follows: clearly irrelevant information, privileged information and disclosure otherwise governed by law.
Your lawyer will initially review the disclosure to determine what is missing and what other disclosure is required. They will then request that additional disclosure from the Crown. Reviewing the disclosure with your lawyer is very important; however, remember this is the evidence collected by the police and likely will not include your side of what happened. Collecting your own evidence and providing your lawyer with your witnesses is important. After your review of the disclosure you may be able to fill in some of the gaps with your knowledge and your lawyer may also ask for your version of the incident. Your lawyer, after reviewing the disclosure with you, will be able to give you advice on the strength and weaknesses in the Crown’s case and your possible defences.