How to Get Disclosure for Criminal Charges in Ontario

If you’ve been charged with a criminal offence in Ontario, understanding how to obtain and review disclosure is crucial to building a strong defence. Disclosure refers to the evidence the Crown has against you, and accessing this information is your legal right. At Kruse Law Firm, our experienced criminal defence lawyers can guide you through this complex but essential process.

 

Legal Framework Surrounding Disclosure

In Canada, the landmark 1991 Supreme Court case R. v. Stinchcombe established that the Crown has a duty to disclose all relevant evidence to the accused. This legal principle ensures that individuals facing criminal charges can properly prepare their defence and receive a fair trial.

 

Criminal Code and Disclosure Requirements

While the Criminal Code doesn’t explicitly outline disclosure procedures, the constitutional right to make full answer and defence to criminal charges is the foundation of disclosure requirements. The Crown’s obligation to disclose stems from this right and has been refined through case law over the years.

The duty to disclose includes all relevant evidence in the Crown’s possession, whether it’s helpful or harmful to their case. This means the Crown must provide you with:

• The information or charging document
• Police notes and reports
• Witness statements
• Your own statements to authorities
• Video or audio recordings
• Photographs and physical evidence descriptions
• Expert reports and analysis
• Criminal records of witnesses (where relevant)
• Any other evidence the Crown intends to use against you
• Any other information or evidence that is relevant 

Full and timely disclosure is critical to the proper functioning of our criminal justice system. As a former Crown Prosecutor with over 36 years of criminal trial experience, Michael Kruse understands both sides of the disclosure process and can help ensure you receive all the evidence you’re entitled to.

 

The Procedure For Requesting Disclosure

Getting disclosure for criminal charges in Ontario follows a specific process that begins immediately after charges are laid. Here’s what you need to know to navigate this procedure effectively.

 

Initial Steps After Being Charged

Once you’ve been charged with a criminal offence, the first step toward obtaining disclosure is making a formal request. While the Crown has an obligation to provide disclosure, they typically won’t do so automatically—you must ask for it.

If you’re represented by a lawyer, they will request disclosure on your behalf. At Kruse Law, we handle this process for our clients promptly to ensure all evidence is received as early as possible.

If you’re self-represented, you should contact the Crown Attorney’s office in the jurisdiction where your charges were laid. You’ll need to provide:

• Your full name
• Your date of birth
• The charges against you
• The police occurrence number (found on your release documents)
• Your contact information

 

When to Expect Disclosure

The timing of disclosure can vary significantly depending on the complexity of your case and the local Crown’s office procedures. In straightforward cases, disclosure might be available within a few weeks of charges being laid. For more complex matters, it could take months to receive complete disclosure.

It’s important to note that disclosure is an ongoing obligation for the Crown. As new evidence becomes available or as the investigation continues, the Crown must provide additional disclosure up until and even during the trial.

 

Format of Disclosure Materials

Disclosure typically comes in either paper or electronic format. In recent years, the  Crown has  moved towards digital disclosure, providing materials on USB drives, CDs, or through secure online portals. For  sensitive video evidence such as child pornography, you will be required to view the material at the police station or Crown’s office rather than receiving a copy.

The disclosure package you receive should be organized and searchable. If you’re dealing with a particularly document-heavy case, proper organization becomes even more crucial to effectively review all the evidence.

 

Basic vs. Supplementary Disclosure

Initial disclosure, sometimes called “basic disclosure,” typically includes the core evidence in the Crown’s possession. However, after reviewing these materials, your lawyer may identify gaps or areas where additional information is needed.

In such cases, your lawyer will make a supplementary disclosure request specifying the exact materials being sought. This might include specific witness statements, forensic reports, surveillance footage, or other evidence relevant to your defence.

 

Challenges and Exceptions to Disclosure

While the Crown has a duty to disclose evidence, there are certain limitations and challenges you might encounter in the disclosure process.

 

Issues of Non-Disclosure

One of the most common challenges is incomplete disclosure. The Crown might inadvertently or deliberately withhold certain pieces of evidence. This could happen because:

• Evidence was overlooked in the file
• Materials weren’t properly transferred from police to the Crown
• The Crown doesn’t believe certain information is relevant
• Technical issues with video or audio files

If you suspect the Crown hasn’t provided complete disclosure, your lawyer can file a formal request for specific items. In more serious cases of non-disclosure, your lawyer might bring a Stinchcombe application before the court, asking the judge to order the Crown to provide the missing evidence.

 

Legal Reasons Why Disclosure May be Withheld

There are legitimate circumstances where the Crown may withhold certain information:

• Privileged Information: This includes solicitor-client privilege, informant privilege (protecting the identity of confidential police informants), and public interest privilege.
• Privacy Concerns: In cases involving sexual assault, the Crown may redact identifying information about complainants or withhold certain therapy or counseling records.
• Ongoing Investigations: If disclosure would compromise an ongoing investigation, the Crown may delay providing certain materials.
• National Security: Information that could affect national security may be withheld or heavily redacted.
• Irrelevant Information: The Crown has discretion to withhold information they deem clearly irrelevant to your case.

It’s worth noting that the Crown must disclose the fact that they are withholding information and the general basis for doing so.

 

Breaches of Disclosure Obligations

When the Crown fails to meet its disclosure obligations, there are several potential remedies available:

• Adjournments: The court may grant additional time for the defence to review late disclosure.
• Exclusion of Evidence: Evidence that wasn’t properly disclosed might be excluded from trial.
• Costs: In some cases, the court may order costs against the Crown for disclosure failures.
• Stay of Proceedings: In the most serious cases of disclosure breaches, particularly when they demonstrate abuse of process, the court may stay the charges entirely.

 

Understanding and Using Disclosure Effectively

Once you’ve received disclosure, knowing how to review and use it is crucial to building a strong defence.

 

Working with Your Lawyer to Review Disclosure

The disclosure package in criminal cases can be voluminous and complex. Police notes may be difficult to decipher, technical reports might contain specialized terminology, and video evidence could require careful analysis.

Working with an experienced criminal defence lawyer ensures that all disclosure is thoroughly reviewed with a trained eye. At Kruse Law Firm, we meticulously examine every piece of evidence, looking for:

• Inconsistencies in witness statements
• Gaps in the police investigation
• Procedural errors or Charter violations
• Alternative interpretations of the evidence
• Weaknesses in the Crown’s case

Your lawyer will help you understand what the evidence means for your case and how it might affect your defence strategy. This collaborative review process is vital to preparing effectively for court.

 

Identifying Missing or Problematic Evidence

Sometimes what’s missing from disclosure is as important as what’s included. An experienced criminal lawyer can identify evidence that should exist but wasn’t provided, such as:

• Witness statements mentioned in police notes but not included in disclosure
• Video footage from police body cameras or cruisers
• 911 calls or dispatch records
• Crime scene photographs
• Laboratory test results
• Police disciplinary records that might affect credibility

If important evidence is missing, your lawyer can make further requests or applications to secure this material. The law requires the Crown to disclose all relevant evidence, not just what supports their case.

 

The Role of Disclosure in Plea Negotiations

Thorough review of disclosure is essential even if you’re considering a guilty plea. Understanding the strength of the Crown’s case helps your lawyer negotiate the best possible resolution.

With complete disclosure, your lawyer can:

• Identify weaknesses that might convince the Crown to withdraw or reduce charges
• Assess the likelihood of conviction if the case proceeds to trial
• Negotiate appropriate sentencing positions based on the evidence
• Determine if a plea to a lesser included offence might be appropriate
• Never make decisions about pleading guilty without first reviewing disclosure with your lawyer. 

What initially appears to be a strong case against you might have significant vulnerabilities once properly examined.

 

Defence Obligations Regarding Disclosure

While the Crown has extensive disclosure obligations, the defence also has certain responsibilities in the disclosure process, albeit more limited ones.

 

What the Defence Must Disclose

Unlike the Crown, the defence is not required to disclose its entire case. However, there are specific instances where the defence does have disclosure obligations:

• Alibi Defence: If you plan to present an alibi defence (claiming you were elsewhere when the crime occurred), you must provide advance notice to the Crown, including details of where you were and any supporting witnesses.
• Expert Evidence: If the defence intends to call expert witnesses, details about the expert and their testimony must be disclosed to the Crown before trial.
• Charter Applications: When making Charter applications (claiming your constitutional rights were violated), the defence must provide notice of the specific Charter breaches being alleged.
• Third-Party Records Applications: Applications for records in the possession of third parties require advance notice and specific procedures.
• Prior Sexual Activity of the Complainant:  Applications under s. 276 of the Criminal Code to introduce the prior sexual activity of an alleged victim of a sexual crime also require advance notice before a trial and are governed by specific procedures under the Criminal Code. 

As explained in the “Does the defence have to disclose their case to the Crown?” video on our website, these limited disclosure requirements reflect the fundamental principle that the accused does not have to help build the case against themselves.

 

Maintaining Confidentiality of Disclosure Materials

When you receive disclosure, it comes with an implied undertaking that the materials will only be used for the purpose of making a full answer and defence. This means:

• Disclosure should not be shared with people unrelated to your defence
• Materials should not be posted online or on social media
• Sensitive information about witnesses or victims must be treated with particular care
• Evidence should be stored securely

Violating these confidentiality expectations can result in serious consequences, including potential criminal charges in extreme cases.

 

Frequently Asked Questions

How much does it cost to get disclosure?

In Ontario, basic disclosure is provided free of charge for criminal cases. This includes,  but is not limited to,  the essential evidence the Crown intends to rely on at trial. 

If you’re represented by legal counsel, your lawyer will typically handle obtaining disclosure as part of their services. At Kruse Law Firm, we ensure our clients receive complete disclosure to ensure full answer and defence to their criminal charges.  

 

What if I’m self-represented and need help understanding disclosure?

Navigating the criminal justice system without a lawyer is challenging, especially when it comes to understanding complex disclosure materials. If you’re self-represented, several resources are available:

• Duty counsel at the courthouse can provide basic assistance
• Legal Aid Ontario may be able to help with specific disclosure issues
• Court staff can direct you to resources for self-represented individuals
• Pro bono legal clinics sometimes offer disclosure review services

However, given the critical importance of disclosure review to your defence, we strongly recommend consulting with a criminal lawyer, even if just for a limited scope retainer specifically to help you understand your disclosure.

 

How long should I expect to wait for disclosure?

The timeframe for receiving disclosure varies depending on several factors, including:

• The complexity of your case
• The volume of evidence
• Local court procedures
• Whether specialized reports are needed (e.g., forensic analysis)

For straightforward cases, disclosure might be available within 2-4 weeks of charges being laid. However,  there are no hard and fast rules,  and even for minor criminal charges the disclosure process can sometimes take several  months to complete.  More complex cases can take many months to receive complete disclosure. If you’ve been waiting an unreasonable amount of time, your lawyer can bring this to the attention of the court.

 

What happens if the Crown withholds evidence?

If the Crown fails to disclose relevant evidence, several remedies may be available depending on the severity and impact of the non-disclosure:

• The court may order immediate disclosure
• Trial dates might be adjourned to give the defence time to review late disclosure
• Evidence might be excluded from trial
• In serious cases, the charges might be stayed (temporarily or permanently halted)

To address non-disclosure, your lawyer will typically file a formal application under the Stinchcombe principles, asking the court to intervene.

 

The Importance of Legal Representation in the Disclosure Process

While it’s possible to navigate the disclosure process on your own, having experienced legal representation significantly improves your chances of receiving complete disclosure and using it effectively in your defence.

 

How Kruse Law Can Help with Your Disclosure

At Kruse Law Firm, our team of skilled criminal defence lawyers brings decades of experience to the disclosure process. We understand that proper disclosure is the foundation of a strong defence, and we leave no stone unturned in ensuring our clients receive all the evidence they’re entitled to.

Our approach to disclosure includes:

• Promptly requesting complete disclosure from the Crown
• Meticulously reviewing all materials with a trained eye
• Identifying inconsistencies, gaps, improbabilities, and potential defences
• Determining if our clients’ rights have been violated under the Canadian Charter of Rights and Freedoms
• Making follow-up requests for missing or additional evidence
• Bringing court applications when necessary to secure disclosure
• Explaining the evidence and its implications in clear, straightforward terms
• Using disclosure strategically in negotiations or trial preparation

With offices and experienced criminal lawyers in London, Windsor, Toronto, and Kitchener, we’re well-positioned to assist clients throughout Ontario with their disclosure needs.

 

Next Steps if You’ve Been Charged

If you’ve been charged with a criminal offence in Ontario, taking immediate action to secure proper disclosure is essential. Here’s what you should do:

1. Contact an experienced criminal defence lawyer as soon as possible after being charged.
2. Preserve any evidence in your possession related to the charges.
3. Make notes about what happened while your memory is fresh.
4. Avoid discussing your case with anyone other than your lawyer.
5. Do not accept a plea deal before reviewing disclosure with your lawyer.

To learn more about how Kruse Law Firm can help with your disclosure and overall defence, contact us today for a free consultation. Our experienced lawyers will explain your rights, guide you through the disclosure process, and help you build the strongest possible defence.