Defense Lawyers in Toronto: The Importance of Disclosure

Have you been charged with a criminal offence in Toronto?  If it’s the first time you have been charged, you will need to become familiar with certain legal concepts, as you will hear them being discussed in your case whether or not you retainer a Toronto Criminal Lawyer.

In this article, I will discuss the importance of Disclosure of explaining what it is. 

What is Disclosure in criminal law?

There are two different uses of the word Disclosure in the Canadian criminal law process.  In one sense, Disclosure refers to the process by which the prosecution is required to provide (or disclose) all evidence to the accused or his/her Criminal Defence Lawyer.

Where does the disclosure duty stem from?

Everyone who is charged with a criminal offence in Canada has a constitutional right to disclosure. The right is guaranteed under s. 7 of the Charter of Rights and Freedoms and, more particularly, the right to make “full answer and defence” which is guaranteed under that section.

Disclosure for the Crown Attorney, therefore, is not just optional.  It is mandatory.   Defense Lawyers in Toronto often litigate over disclosure issues in criminal cases, if they believe disclosure is being withheld or not provided in a complete fashion.

What are examples of disclosure?

Disclosure comprises any and all evidence that the police have gathered in a criminal investigation.  Examples of disclosure include:

• Witness statements
• Police notes
• Surveillance videos
• Police car camera videos
• Video from the police station
• Photographs
• Medical records
• Criminal background checks

Defense Lawyers in Toronto will have reviewed a wide range of types of disclosure. This list is certainly not exhaustive, but is meant to provide a general idea on what you can expect for when you receive disclosure in your case.

How long does disclosure take in Ontario?

Generally speaking, disclosure is provided on or around the first appearance in criminal court.  If the person is appearing at the courthouse, a package would be provided to them of disclosure material.  If the person is appearing by Zoom for a first appearance, they can obtain disclosure from the Crown Attorney’s office.

How do I request and obtain disclosure?

As indicated above, disclosure is usually provided by the Crown Attorney’s office at or around the first appearance. If the first appearance has arrived and disclosure is not available, Defense Lawyers in Toronto, or self represented accused people, will normally make that known to the Justice of the Peace at the court date, so a record of that is made.

Requesting disclosure outside of the court process can be done by e-mail to the Crown Attorney’s office at the particular courthouse your case is in.  Each Crown Attorney office has a different e-mail address, so make sure you have the correct one, or your request will not be processed.

What happens after disclosure is provided?

Usually, initial disclosure is provided at the outset, or early on, in a criminal case.  However, initial disclosure is usually not complete.    The Crown Attorney has an ongoing disclosure obligation that does not end just at the first appearance or when initial disclosure is provided. 

Once disclosure is complete, which can take months in some cases, an accused will be able to make informed choices about their case.  Usually, Defense Lawyers in Toronto will advise their clients to wait for complete, or at least substantial, disclosure is provided before they make any crucial decisions about the case.

What is the importance of disclosure?

Disclosure provides an accused person an understanding of what the case is that they have to meet.  Without seeing disclosure, they will be defending a case in the dark. This is why disclosure is so crucial, as it provides the basis for the allegations.  An accused person cannot have a fair trial without knowing what the case is against them.

Defense Lawyers in Toronto need disclosure to be able to adequately provide legal advice to their clients.  Without know what evidence the Crown has in support of the allegations, adequate and thorough legal advice cannot be provided.

I often receive calls from individuals charged with crimes who do not have disclosure yet, but want to know what the “chance of success” is for their case.  The question is impossible to answer, for the reasons stated above. 

Disclosure is important in other ways for experienced Defense Lawyers in Toronto.  If the Crown Attorney is delayed in providing disclosure, or providing late disclosure (such as on the eve of a trial), arguments can be made that this delay affected the accused’s ability to have a trial within a reasonable amount of time.  The right to a trial in a reasonable amount of time is guaranteed by s. 11(b) of the Charter.  In short, the right to disclosure can be used as a “weapon” in attacking a Crown case, ultimately leading to charges being stayed (or dismissed) if the accused’s right to disclosure is not fully satisfied.

What if the police have lost evidence that cannot be disclosed?

There will be the odd case where the police have a duty to collect certain evidence that is clearly relevant, and fail to do so due to error or negligence.  One example that has arisen in the case law before is that the police fail to collect video surveillance which likely captured the offence in question.  In this situation, experienced Defense Lawyers in Toronto will investigate the issue to see if an argument can be made at a trial that the police violated an accused’s right to make full answer and defence.  A “lost evidence” application can be made, asking the Judge to stay (or dismiss) the charges simply on the basis that the evidence in question was lost that may have exonerated the accused. These applications are not common and legally complex. If you feel that there may be lost evidence in your case that may have, on its own, shown your innocence, consult with a Toronto Criminal Lawyer in your area.

Does an accused have any disclosure obligations?

The general rule is that the disclosure obligation only relates to the Crown Attorney.  The accused does not have to disclose evidence, such as photographs, texts or witness statements.  There are a number of exceptions to this rule.  One of the most common ones that Defense Lawyers in Toronto will face from time to time is the need to disclose any alibi evidence to the Crown within a reasonable period before a trial so that it can be investigated by police.  Failure to do this could lead to an adverse inference drawn against the accused person.

In sexual assault cases, the accused may have to disclose documents, such as texts or e-mails, if they refer to prior sexual incidents with the complainant or reveal sensitive information about them.

Andrew Captan – Experienced Defense Lawyer in Toronto

If you’ve been charged with a crime, contact an experienced Defense Lawyer in Toronto with over 10 years of practice.  You can reach him at (647) 878-6355 or visit his website HERE.  He provides a free initial consultation and can explain, in simple terms, the court process, your disclosure rights and what your potential legal options are.