What is disclosure in criminal law?

When an individual is charged with a criminal offence in Alberta, one of the first steps in the court process is obtaining “disclosure”. That refers to the information and material in the Crown’s possession about one’s case. It’s sometimes referred to as the “police file” or “disclosure package”.

The package typically includes:

  • The charges laid against the accused.
  • Police notes, witness statements, and other information gathered by police during their investigation, such as photographs.
  • The accused’s criminal record.
  • The results of any tests performed, such as a breathalyzer or drug screening.
  • Audio and video recordings, such as the recording of a 9-1-1 call.

If you are contacted by police about making a statement, it’s important to understand your rights. See Talking to the Police in Alberta: Know Your Rights.

The Crown has a duty to disclose this package, including all materials and information that are in its possession or control that are not clearly irrelevant. That applies whether or not the evidence is to be called at trial or is inculpatory or exculpatory. It is important to note that the materials in the possession of the Crown are not the property of the Crown. Rather, the materials are the property of the public to ensure that justice is achieved.

Types of evidence that don’t need to be disclosed

While the Crown has an obligation to disclose the material in their possession, certain types of information need not be disclosed. For instance, evidence protected by solicitor-client privilege cannot be disclosed. The Crown also does not need to disclose irrelevant materials in its possession. Finally, the Crown may request to withhold evidence to protect privacy or safety of other individuals, such as in the case of protecting the identity of informants or undercover officers. The Crown does not need court approval to withhold this type of information. However, the Crown must be able to justify its decision, and the accused can ask the court to review it.

The importance of timely disclosure

Disclosure must be made in a timely manner, and there is an obligation on the Crown for disclosure to be made on an ongoing basis, as any new evidence arises. Disclosure must be provided before trial, and before an accused can decide how they wish to proceed in the case against them, such as deciding to plead guilty or proceed to trial.

It is important to understand that in very limited circumstances, Crown counsel may delay disclosure. This may occur if a criminal investigation is still underway after charges are laid against an accused individual. In this case, the Crown may choose not to disclose all information relating to the active investigation, and only provide an initial disclosure package, on the grounds that they do not want to jeopardize the investigation.

In Alberta, a prosecutor can only delay disclosure with the approval of a Chief Prosecutor. The delay must never be for tactical reasons, the accused must be given timely notice, and the information must be disclosed as soon as the reason for the delay ends.

While delayed disclosure is rare, it could result in a disclosure package being incomplete. Further disclosure must then be requested by the accused or their counsel.

Consequences of non-disclosure

Failing to provide disclosure can have severe consequences for the Crown’s case. The right to disclosure is founded in two key rights. The first is the right to know the case to meet. The second is the right to make a full answer and defence of the offence charged. These rights are guaranteed by section 7 of the Charter, which states: “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”

Since the right to disclosure is an enshrined Charter right, if the Crown fails to provide disclosure, the accused may have a Charter claim. If an accused can establish that their Charter rights were violated, there are multiple possible avenues of redress.

Remedies for non-disclosure

If the Crown fails to provide timely and full disclosure, subject to relevancy and limited exceptions, there are several remedies available to the accused. The court can order the disclosure of evidence and an adjournment can be granted to the accused to review the evidence with their lawyer.

During a trial, the court can order that certain evidence be excluded where it was not properly disclosed by the Crown. In extreme situations, a stay of proceedings can be granted where the non-disclosure has had a fundamental impact on the accused’s right to a fair trial, and no other remedy is adequate to address the unfairness.

Where the accused individual is convicted at trial and non-disclosure of evidence plays a significant role in that conviction, the accused individual has the right to appeal the trial decision. If the Court of Appeal of Alberta (or the Court of King’s Bench of Alberta, for summary conviction appeals) agrees that the non-disclosure of certain evidence may have changed the trial outcome, they have the power to quash the conviction and order a new trial.

Landmark cases and precedents

The legal principles that apply to disclosure in criminal cases are derived from the landmark Supreme Court of Canada case in R. v. Stinchcombe, [1991] 3 S.C.R. 326. This case concerned a Calgary lawyer who was charged with theft and fraud.

In the course of the police investigation, the lawyer’s former secretary was interviewed twice, with one interview being tape-recorded and a written statement taken at the other. The defence counsel requested a recording of the interview, which was repeatedly denied by the Crown. The lawyer was ultimately convicted at trial. The case was heard by the Alberta Court of Queen’s Bench (now the Court of King’s Bench of Alberta) and the Court of Appeal of Alberta before it reached the Supreme Court of Canada.

In overturning the decision of the trial judge, the Supreme Court of Canada held that the Crown has a legal duty to disclose all relevant information to the defence. The court further found that information obtained through investigation is the property of the public, to be utilized in a manner that ensures justice is achieved. Furthermore, R. v. Stinchcombe established that the general principle for disclosure is that information should not be withheld if there is a reasonable possibility that it will impair the right of the accused to make full answer and defence.

The right to disclosure is not absolute, however. The Supreme Court also found that the Crown has a duty to protect privileged information, and can refuse to disclose information that is covered by “informer privilege” or solicitor-client privilege. Timing of disclosure was also noted to be relevant by the Supreme Court, as they found that the Crown has limited discretion to delay disclosure that may impede the completion of an ongoing investigation if disclosed too early.

Following the Supreme Court’s decision in R. v. Stinchcombe, the Alberta Court of Justice, the Court of King’s Bench of Alberta and courts across Canada have followed its principles closely, which has resulted in a significant body of case law on disclosure obligations. This includes cases which define what “relevant” information is (and thus required to be disclosed), and decisions about the appropriate remedy for non-disclosure.

Defence counsel duties and obligations

Disclosure is provided by the Crown prosecutor’s office. In Alberta, this is usually the Alberta Crown Prosecution Service. It is not provided automatically, and must be expressly requested. One of the first steps for any criminal defence lawyer who is retained to represent the accused individual is to request disclosure from the Crown. In Alberta, defence lawyers can request and receive disclosure online from select Crown prosecutor offices through the Alberta Crown Prosecution Service’s e-Disclosure service.

If the accused has not retained a lawyer before their first court appearance, they will likely be assisted by duty counsel in requesting their disclosure. Alberta prosecutors must make sure that accused persons without a lawyer are told that disclosure is available on request. An accused individual may also receive their disclosure by attending the Crown prosecutor’s office and submitting a paper request.

Once the defence lawyer has received the initial disclosure package, they will typically review it with the accused individual to advise them of its contents and what it means for their case. At this point, the defence lawyer will consider whether they need to request further disclosure from the Crown, determine whether there are any issues with the disclosure, advise the individual of any defences available to them, and consider resolving the charges with the Crown Prosecutor.

It is important to note that disclosure is technically the property of the public, and you are only entitled to use your disclosure for the purpose of defending against the criminal charges you are facing. The Alberta Crown Prosecution Service only provides disclosure on this condition. An Alberta court has also confirmed that defence lawyers may only use disclosure for the case it was provided for (R v Little, 2001 ABPC 13).

Sometimes, when our lawyers receive disclosure from the Crown, we are asked by our clients if they can have a copy of the disclosure package. We always have to check why they are asking. If it’s to prepare a defence, this is typically an acceptable reason. If it is for the purpose of a lawsuit or a parenting dispute, on the other hand, we cannot provide a copy of the disclosure materials.

Procedure for enforcing rights to disclosure

If the Crown has failed to provide full disclosure of relevant information to an accused individual, the procedure for enforcing your rights to full disclosure depends on when the violation of the disclosure duty is discovered.

When the Crown has failed to provide timely disclosure of evidence before trial, the typical response is to make an additional request for disclosure, and seek an adjournment to review the new disclosure. The defence has an obligation to diligently pursue additional disclosure once they become aware or ought to be aware of its existence. The Court of Appeal of Alberta confirmed this duty in R v Barbour, 2017 ABCA 231.

Through additional disclosure requests, the defence is able to ensure that it has all the information available to make a full answer and defence. If the Crown refuses to fulfill the additional disclosure request, the accused individual may make an application to the court for an order requiring the disclosure.

If the failure to disclose is discovered during the trial, more serious remedies can be available. The court may order that certain evidence is excluded due to the unfairness caused by the non-disclosure. In the most serious cases, and where no other remedy is sufficient to address the unfairness of non-disclosure, the court may order a stay of proceedings.

However, if the defence fails to raise the issue prior to the trial and remains passive, the possibility of successfully raising that non-disclosure affected trial fairness is much less likely. Thus, it is important to raise all known disclosure issues prior to the trial, and to comprehensively review the disclosure to determine if any further disclosure requests are necessary.

Form and types of disclosure

Disclosure from the Crown comes in many different forms and is dictated by the types of evidence that are gathered during the investigation of criminal charges. The disclosure will always include the charges laid against the accused individual, as well as a summary of the evidence that supports the charge. The disclosure may also include the following information:

  • Handwritten notes taken by officers during their investigation.
  • Written statements from any relevant witnesses.
  • The accused individual’s criminal record.
  • Expert testimony or reports (for example, a forensic expert’s report in a case where DNA evidence is necessary).
  • Results of any tests performed, such as a breathalyzer or drug screening.
  • The complainant’s medical records (in sexual offence cases, the Crown must tell the accused if it has these records, but can only share their contents with the complainant’s informed consent or a court order).
  • Photographs or video footage of the incident or any other relevant time.
  • Audio recordings and/or transcriptions from calls made to 9-1-1.
  • Any other documents or records that the Crown believes are relevant to the criminal charges laid against the accused.

Because every case is different, the contents of a disclosure package will depend on the charges and the evidence gathered. A criminal defence lawyer can review it with an accused person to see if anything is missing.