Disclosure

Question 1

What section of the Charter guarantees the right to disclosure?

Answer 1

Section 7, as part of the accused’s right to a fair trial

Question 2

The obligation to disclose rests on

Answer 2

the Crown, responsible for ensuring the accused received full and timely disclosure of information in the Crown’s possession

Question 3

What landmark case stated that the “fruits of investigation are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done”?

Answer 3

R v Stinchcombe

Question 4

The general purpose of disclosure is

Answer 4

to ensure the accused’s ability to make full answer and defence

Question 5

When is the defence entitled to receive disclosure?

Answer 5

At an early stage after the laying of charges and before electing a mode of trial or entering a plea

Question 6

The crown, at their discretion, may refuse to disclose information that is

Answer 6

• privileged
• clearly irrelevant
• otherwise subject to another statutory regime

Question 7

When is the Crown’s duty of disclosure triggered?

Answer 7

WHen defence requests disclosure. This does not require an application to the court. It is typically made in writing, to ensure the creation of a record of the request and to allow for easier processing of the request

Question 8

Specific requests for some information may be made as it is not generally included in disclosure:

Answer 8

• audio visual disclosures
• police recordings
• 911 calls

Question 9

What kind of authority does the pre-trial judge have in disclosure?

Answer 9

The authority to set timelines for complete disclosure or for the exchange of materials on a pre-trial motion if a disclosure issue cannot be resolved.

Question 10

Is the defence obligated to pay for basic disclosure costs?

Answer 10

No, but circumstances will arise where the Crown may request payment for additional copies or disclosure in different forms

Question 11

Do the official language choices apply to disclosure documents?

Answer 11

No, as determined in R v Rodrigue, the accused is not entitled to receive disclosure in the language of their choice. The right to receive disclosure in French is approached on a case by case/item by item basis

Question 12

The Crown must interpret the relevance of information

Answer 12

generously, and err on the side of inclusion of information rather than exclusion

Question 13

Is the Crown’s duty of disclosure satisfied after intial disclosure?

Answer 13

No, the duty is ongoing. If new, relevant information arises, it must be disclosed.

Question 14

The Crown has a duty to disclose

Answer 14

All relevant, non-priveleged information in its possession or control

Question 15

What information may be deemed outside the requirements of disclosure?

Answer 15

Information in possession of the police in the form of records, unrelated to the charges the accused is facing

Question 16

How are third party records requested/obtained

Answer 16

Through written application for third party records, which must be brought/heard at the beginning of trial per rule 25 of the Ontario Courts of Justice Act

Question 17

For certain offences like sexual assault, records relating to personal information for which there is a reasonable expectation of privacy will not be made upon request, but rather

Answer 17

The Crown will notify the accused that these records are in their possession but cannot disclose them until there is an application for disclosure before the trial judge.

Question 18

An application for production, the supporting affidavit and subpoena must be served

Answer 18

At least 60 days before the hearing

Question 19

What is the two stage test conducted by judges when determining whether to grant a third-party record application?

Answer 19

• LIKELY RELEVANCE: the accused must establish that the document ought to be produced to the trial judge
• BALANCING: the trial judge must examine the records with a view to determining whether to order the production to the defence. (probative value vs prejudicial effect)

Question 20

Police misconduct records are

Answer 20

always relevant, and must be disclosed to determine if there is any material that could reasonably have an impact on the case against the accused (R v MacNeil)

Question 21

The accused’s paralegal should make a

Answer 21

detailed and specific demand for further disclosure, avoiding broad language

Question 22

What are the consequences of non-disclosure?

Answer 22

a remedy or relief may be granted, depending on:
- stage of the proceedings
- the cause for non-disclosure
- the conduct of the parties involved and
- the effect the non-disclosure has had on the conduct and outcome of the proceedings

Question 23

Who reviews the disclosure decisions of Crown?

Answer 23

typically trial judges. in exceptional cases, a judge of the superior court of criminal jurisdiction may review the disclosure under Charter section 24(1), but this is outside paralegal scope of practice

Question 24

In cases where non-disclosure may have affected the conduct of the defence, what may be granted?

Answer 24

A mistrial

Question 25

When is the remedy of exclusion of evidence granted?

Answer 25

In exceptional cases where - the late disclosures render the trial process unfair, and that unfairness cannot be remedied through an adjournment and disclosure order, or

• where the exclusion is necessary to maintain the integrity of the justice system

Question 26

When is the defence required to disclose?

Answer 26

When calling an expert witness, the defence is obligated to:
- provide the Crown with the expert’s report, if one is prepared, or
- if no report, provide a summary of the expert’s opinion no later than the close of the Crown’s case

Question 27

When is the accused’s paralegal required to give notice of arguments?

Answer 27

when seeking relief under the Charter, in an application under section 276 of the Code for evidence of a complainant’s sexual history, and in an application under section 278.93 where the complainant’s records are in the possession of the accused and the accused seeks to adduce them

Question 28

When must the accused’s paralegal seriously consider disclosing the defence?

Answer 28

When it is one of alibi. Failure to give the police or Crown notice of the alibi with sufficient detail so that it can be investigated may result in the trial judge drawing an adverse inference againstthe truth of the alibi