Someone charged with a criminal offence usually knows only a sliver of the case at the start: a charge on a release document, a court date, perhaps a sentence or two from an officer. The police, meanwhile, may have statements, video, phone records and notes. Disclosure is the process that closes that gap. It is the Crown’s obligation to give you the material it holds, so you can answer the allegation with your eyes open.
For many people, the first appearance at the Brampton courthouse at 7755 Hurontario St. is where the word comes up for the first time. A duty counsel or a Crown says the matter should be adjourned “for disclosure,” the court gives another date, and you leave wondering what just happened. That adjournment is routine. The reason behind it is one of the most important protections in Canadian criminal law.
What follows is general information and not legal advice about your charge. What a package contains and how it should be used depends on the allegation and the evidence in your particular file.
Where the Right Comes From
The leading decision is R. v. Stinchcombe, decided by the Supreme Court of Canada in 1991. It held that the fruits of a police investigation are not the Crown’s property to use as it pleases. They belong to the public, to be used to make sure justice is done. The right to make full answer and defence, protected by section 7 of the Charter, depends on knowing the case you have to meet.
Three points from that line of cases are worth keeping in mind:
- The Crown must disclose all relevant information in its possession, whether it helps or hurts the prosecution. Information pointing away from guilt is included.
- The test is generous. Material should be disclosed unless it is clearly irrelevant, privileged, or protected by another recognized rule.
- The duty continues. If the police find something after the first package goes out, the Crown is expected to pass it along.
Ontario’s Crown Prosecution Manual reflects the same approach. It tells prosecutors that delays in providing disclosure should be rare and must never be used as a tactic.
What a Package Usually Contains
Disclosure is not a standard form, and a shoplifting file looks nothing like a large fraud investigation. Still, some items turn up again and again.
The synopsis is usually the first document anyone reads. It is a police summary of the allegation, often the same one read to a justice at a bail hearing. People tend to treat it as the case itself, and it is not. A synopsis is an officer’s condensed account. It can contain errors, skip over things that help you, and state as fact what a witness only suggested.
Officers’ notes are the handwritten or electronic records each officer made during the investigation. They show the sequence of events: when you were stopped, what you were told, when you were given your rights, and when you spoke to a lawyer. Those small timing details can matter a great deal in a Charter argument.
Witness statements may be written, audio recorded, or video recorded. Comparing a witness’s first version with later versions is often where the real work happens. The same is true for a complainant in an assault file, where the disclosure may include a recorded interview and photographs of any injuries.
Recordings can include 911 audio, body-worn camera footage, in-car camera footage, store security video and booking room video. Other common items are your own statement to police, search warrants and the sworn information used to get them, forensic reports, breath test documents in an impaired driving case, and phone or bank records.
Your criminal record, if you have one, is usually disclosed too, because it affects how the Crown views the case and what sentence it may seek.
How to Get It in Peel
You or your lawyer normally has to ask. Disclosure does not always arrive automatically, and it can come in stages. Your release papers or the Crown’s office can point you to the local process, and you can ask duty counsel at the courthouse how requests are being handled at that time. If you have hired a lawyer, the lawyer’s office will typically make the request and collect the package for you.
Stinchcombe says initial disclosure should generally be made before you are asked to choose how to be tried or to enter a plea. In practice, that is why early appearances are so often short. The court wants to know that the defence has what it needs before the case moves forward, and many people attend more than one short date while material comes in.
Keep every piece of paper, and write down each court date and what you were told. If you received a package without a lawyer, do not assume it is complete. Look for clues that something is missing, such as a note that says “video seized” with no video in the package.
Reading It Without Panicking
The first read is often upsetting. Disclosure is built by the people investigating you, so it naturally reads as though the case is airtight. Seeing a complainant’s words in writing or watching yourself on video can be hard. Try to read it twice: once to absorb it, then again a day or two later with a pen and a notepad.
On the second read, build your own chronology. Note who says what, and when they said it. Mark anything you know to be wrong, and record why you know that. Make a list of people or records that could confirm your account, such as a coworker who was present, a gym check-in, a transit fare record or a text message with a timestamp. Evidence of that kind can disappear if nobody preserves it, so identify it early.
Do not contact witnesses or complainants to discuss what you read. Release conditions commonly forbid it, and even where they do not, the contact can look like an attempt to influence testimony. Pass your notes to your lawyer instead. And treat the package itself with care. Do not post it, forward it to friends, or leave it where children or roommates can find it. Some material is highly personal to other people, and for certain recordings the Crown may require that the defence accept restrictions on how they are used.
What the Crown Can Hold Back
The duty is broad but not unlimited. The Crown can withhold or edit material that is clearly irrelevant or protected by privilege. Common examples are information that would identify a confidential informer, material whose release could put a person’s safety at risk, and details that could compromise an ongoing investigation. You will often see this as blacked-out text.
Timing can be delayed for good reason too, as can the form in which something is provided. The manual directs special care with recordings that depict or recount a sexual offence or child abuse. Those may be released to a lawyer only after an undertaking, and an unrepresented accused generally needs a court order to get a copy, though arrangements can be made to review the material.
Some records are outside the Crown’s file altogether. A doctor’s chart, a counsellor’s notes, or a school record held by a third party cannot simply be demanded. Separate procedures apply, and for sexual offence cases the Criminal Code sets detailed rules that include notice to the complainant. Records about police misconduct can also raise special questions. The Supreme Court addressed this in R. v. McNeil, explaining when the police must pass that kind of information to the Crown.
When Something Is Missing
Gaps are common, and many are simple oversights. A typical sequence runs like this:
- Your lawyer writes to the assigned Crown listing the missing items and explaining why they matter.
- The issue may be raised at a Crown pre-trial, a meeting where the prosecutor and defence discuss the file.
- If that fails, a judge can be asked to step in. This may happen at a judicial pre-trial, or by formal application if the dispute is real.
Requests should be specific. “Send everything” gets a slower response than “please provide the body-worn camera footage of the second officer between 11:40 p.m. and 12:15 a.m.” If a recording has been lost or destroyed, separate questions arise about whether the loss was unacceptable negligence and whether it harmed your ability to defend yourself. A court can respond in several ways, depending on the harm.
Be prompt about all of this. A defence that waits months to follow up on a known gap may find that the delay is counted against it, which brings up the next point.
Disclosure and the Clock on Your Case
Section 11(b) of the Charter guarantees a trial within a reasonable time. In R. v. Jordan, the Supreme Court set presumptive ceilings of 18 months for cases in the Ontario Court of Justice and 30 months for cases in the Superior Court of Justice, with adjustments for defence delay and exceptional circumstances. Parliament has since added a part to the Criminal Code on unreasonable delay. It requires courts to consider what makes a case complex, excludes certain periods from the calculation, and says a stay may be ordered only in accordance with that part. Common law principles continue except where the statute changes them.
Late disclosure can be a real cause of delay, and time lost to it may not count against you. But waiting silently is risky. Courts expect both sides to move the matter along. If your lawyer has what is needed to set a trial date, that date should normally be set, even if smaller items are still outstanding, with the outstanding items tracked in writing.
How the File Shapes Your Choices
Almost every serious decision in a criminal case should be made after reading disclosure. That includes whether a charge can be resolved through a diversion program, whether a guilty plea makes sense, whether to go to trial, which Charter applications are realistic, and whether you should testify. Someone who pleads guilty on day one to “get it over with” may give up a viable defence they never had a chance to see, and may also take on consequences for travel, employment or immigration status that they did not expect.
There is also an obligation running the other way, of a limited kind. You generally do not have to give the Crown your defence evidence in advance, though specific rules apply for matters like alibi and expert evidence. A lawyer can advise when early notice to the Crown is required or strategically useful. A criminal defence lawyer can also translate the file for you, separating what looks alarming from what actually matters at trial.
Questions to Bring to a Lawyer
If you are preparing to speak with a lawyer, these questions can focus the conversation:
- Is this package complete, and what is still missing?
- Does the evidence support each element of the offence I am charged with?
- Do the police notes show that my rights were respected?
- Which of my own records or witnesses should be preserved now?
- Does this file open up a diversion or early resolution discussion?
- What is the timeline, and how does outstanding disclosure affect it?
Bring the full package, your release papers, and your own notes. Being charged means you have been accused, and the Crown still has to prove the case beyond a reasonable doubt. Disclosure is how you find out what that proof really looks like, and it deserves a slow, careful reading before you decide anything.