The Right to Disclosure in Canadian Criminal Law: What Every Accused Person Should Know
If you’ve been charged with a crime in Canada, one of the most important parts of your defence is something called disclosure. Whether you’re facing charges in Calgary, elsewhere in Alberta, or anywhere in Canada, you are entitled to know the evidence the Crown has against you—and that’s where the law of disclosure comes in.
In this blog post, we’ll explain:
What disclosure is
Why it's a constitutional right
How the law changed after R. v. Stinchcombe (1991)
What counts as relevant information
What happens when the Crown withholds disclosure
What an O’Connor application is
How disclosure is handled in Alberta courts
What Is Disclosure?
Disclosure is the process by which the Crown (the prosecution) shares with the defence all the information it has related to the charges. This includes:
Police reports
Witness statements
Audio and video evidence
Expert reports
Photographs
Any other information relevant to the accused’s guilt or innocence
The purpose of disclosure is simple but powerful: to ensure that the accused receives a fair trial.
Why Is Disclosure So Important?
When someone is accused of a criminal offence, they face the full power of the state. Without disclosure, they would be left defending themselves in the dark.
The Supreme Court of Canada has made it clear: the Crown must not seek a conviction at all costs, but must act fairly and in the interest of justice.
Stinchcombe: The Case That Changed Everything
The modern law of disclosure in Canada was shaped by the landmark Supreme Court case R. v. Stinchcombe, [1991] 3 S.C.R. 326.
The Case at a Glance:
In Stinchcombe, a lawyer was charged with breach of trust and fraud. A key witness gave a statement to the Crown that was favourable to the defence, but the Crown refused to hand it over. The Supreme Court ruled this was unfair and unconstitutional.
What Did the Court Decide?
The Court found that:
The Crown has a constitutional duty to disclose all relevant information to the defence, whether helpful or harmful to the Crown’s case.
This duty stems from the accused’s right to make full answer and defence, guaranteed by Section 7 of the Canadian Charter of Rights and Freedoms.
Key Takeaway:
Full and timely disclosure is essential to a fair trial.
Disclosure Is an Ongoing Obligation
Disclosure isn’t just a one-time event. The Crown’s obligation to provide disclosure is continuous. This means:
If new evidence arises before or during trial, it must be disclosed as soon as possible.
Late disclosure can result in adjournments, exclusion of evidence, or even a stay of proceedings in serious cases.
What Is “Relevant” Disclosure?
Not every scrap of paper in the Crown’s file needs to be disclosed. The Crown is required to disclose all relevant information, which is broadly defined as:
Anything that could reasonably be used by the defence in preparing their case
Information that might assist the defence, or
Anything that could affect the strength of the Crown’s case
This includes both inculpatory (suggesting guilt) and exculpatory (suggesting innocence) material.
But sometimes, the Crown takes the position that certain information is irrelevant—and that’s when things can become contentious.
When the Crown Refuses Disclosure: The O'Connor Application
Sometimes, information the defence wants is in the hands of a third party, such as:
A hospital
Child and Family Services
A school
A counselling centre
Police outside the investigating service
Or, the Crown may argue that the material is private or not relevant.
In these cases, the defence may need to bring what’s called an O’Connor application, based on R. v. O’Connor, [1995] 4 S.C.R. 411.
What Is an O’Connor Application?
An O’Connor application is a two-step legal process used to obtain records from third parties:
The defence must show the material is likely relevant.
If the court agrees, the judge reviews the material privately (called judicial vetting) to decide what, if anything, should be shared with the defence.
This process tries to balance the right of the accused to make full answer and defence with the privacy rights of third parties.
How Disclosure Works in Alberta
Alberta follows the same constitutional rules as the rest of Canada, but local practice and timelines can vary. In Alberta:
Disclosure is often provided electronically through portals like Disclosure Management (DMS) or by email from the Crown.
Early disclosure is often limited, with supplemental disclosure arriving later as the investigation progresses.
For more serious cases, particularly those proceeding in King’s Bench, disclosure may be incomplete until a preliminary inquiry or pre-trial conference.
Alberta Case Law on Disclosure
Courts in Alberta have emphasized that:
Delays in disclosure can violate an accused's rights under Section 7 and Section 11(b) of the Charter (the right to a timely trial).
If the Crown fails to meet its obligations, judges can order disclosure, adjourn the trial, or stay the charges entirely.
Notable Alberta cases include:
R. v. Vassell, 2015 SCC 53 (while national, this Alberta-originating case highlights how late disclosure affected trial fairness)
R. v. Vallentgoed, 2016 ABCA 358 (addressing ongoing disclosure and timing in impaired driving cases)
Final Thoughts: Don’t Fight Blindfolded
Facing criminal charges is daunting. Without access to full disclosure, you're fighting blindfolded. The Crown has a legal and ethical duty to share relevant information—but it’s not always automatic. Sometimes, you need a skilled lawyer to demand, negotiate, or apply to the court for the materials you’re entitled to.
If you're charged with a crime in Alberta and concerned about what information you're getting—or not getting—from the Crown, contact my office today. I'll make sure your rights are protected and that you receive the disclosure you need to mount a full and proper defence.