Understanding Disclosure

How It Works

Overview of Disclosure

Definition:

Disclosure refers to the process by which the prosecution and defence exchange evidence and information relevant to the case. This process ensures that both sides are aware of the evidence that will be used in court, promoting transparency and fairness in the legal proceedings.

Purpose:

  • Transparency: To ensure that both the prosecution and defence have access to all relevant evidence, allowing for a fair trial.

  • Fairness: To prevent surprises in court and enable each side to prepare their case effectively.

2. Legal Framework for Disclosure

Criminal Code of Canada:

  • Section 650(1): The Criminal Code outlines the disclosure obligations of the prosecution. This section mandates that the Crown must provide the defence with all relevant evidence that it intends to use in court, as well as any evidence that may be helpful to the defence.

  • Constitutional Rights: Disclosure also aligns with the accused’s constitutional rights under Section 7 of the Canadian Charter of Rights and Freedoms, which guarantees the right to a fair trial.

Types of Disclosure

1. Prosecution’s Disclosure:

  • Evidence in Chief: The prosecution is required to disclose evidence it intends to use in its case-in-chief. This includes witness statements, documents, physical evidence, expert reports, and any other material that will be presented to prove the charges.

  • Disclosure Obligations: The prosecution must also disclose any evidence that could be favourable to the defence, even if it is not intended to be used in the prosecution’s case. This is known as “exculpatory evidence” or “Brady material.”

2. Defence’s Disclosure:

  • Witness List: The defence may also be required to disclose a list of witnesses it intends to call, along with their statements or summaries of their expected testimony.

  • Evidence: While the defence has less stringent disclosure requirements compared to the prosecution, it must still provide the prosecution with evidence it plans to use in its defence.

Disclosure Process

1. Timing:

  • Initial Disclosure: The prosecution must provide initial disclosure shortly after charges are laid, allowing the defence to begin preparing for the case. The timing of this disclosure is crucial for the defence to assess the evidence and formulate a defence strategy.

  • Ongoing Disclosure: As the case progresses, additional disclosure may occur if new evidence emerges or if the prosecution decides to introduce additional material. Both parties are responsible for keeping each other informed of significant updates.

2. Method of Disclosure:

  • Document Exchange: Evidence is typically exchanged through formal documents, including written statements, police reports, and physical evidence. The exchange is often conducted through legal counsel to ensure that all parties receive accurate and complete information.

  • Electronic Disclosure: In modern practice, much of the disclosure may be handled electronically, with evidence being shared through secure digital platforms or file transfers.

Disclosure and Disclosure Orders

1. Requests for Disclosure:

  • Formal Requests: The defence can make formal requests for additional disclosure if they believe that the prosecution has not provided all relevant evidence. These requests are typically made through motions to the court.

  • Disclosure Orders: If there are disputes over the completeness or adequacy of disclosure, the defence may request a disclosure order from the court, compelling the prosecution to provide specific evidence.

2. Voluntary Disclosure:

  • Proactive Disclosure: The prosecution is expected to be proactive in providing all relevant evidence, including material that may not be favourable to its case. Failure to disclose relevant evidence can result in legal challenges or adverse consequences in court.

Impact of Disclosure

1. Fair Trial:

  • Preparation and Strategy: Proper disclosure allows the defence to prepare an effective defence strategy, challenge the prosecution’s evidence, and identify any weaknesses in the case.

  • Avoiding Surprises: Full disclosure helps prevent surprises during trial, which could otherwise undermine the fairness of the proceedings.

2. Legal Challenges:

  • Disclosure Violations: If there are violations of disclosure obligations, it may lead to legal challenges, such as motions to exclude evidence, requests for a mistrial, or appeals based on the argument that the accused did not receive a fair trial.

  • Remedies: Courts may impose remedies for non-disclosure, such as ordering additional disclosure, excluding improperly disclosed evidence, or in extreme cases, staying the proceedings.

Role of the Defence Lawyer

Disclosure is a fundamental component of the Canadian criminal justice system, designed to ensure that all parties have access to relevant evidence and that the accused receives a fair trial. Understanding the disclosure process helps ensure that the legal proceedings are transparent and equitable, allowing both the prosecution and defence to prepare their cases effectively.

1. Reviewing Evidence:

  • Evaluation: Defence lawyers thoroughly review all disclosed evidence to assess its impact on the case. They analyze the prosecution’s evidence, identify potential weaknesses, and determine the best strategy for challenging the evidence.

  • Strategic Decisions: Legal counsel uses the disclosed evidence to make informed decisions about cross-examining witnesses, presenting counter-evidence, and negotiating plea deals.

2. Ensuring Compliance:

  • Advocacy: Defence lawyers ensure that the prosecution complies with its disclosure obligations and advocate for additional evidence if necessary.

  • Client Communication: They keep the accused informed about the evidence and its implications for the case, providing guidance on how to proceed.