Disclosure For Criminal Charges: Timeline and Process

What is disclosure in a criminal case? That’s a common question that clients talk to us about. We’re always talking about the disclosure. What exactly is it? So let’s take a hypothetical. You’ve been charged with sexual assault, the police conduct an investigation. They you know, they’re going to get the hospital records of the complainant and a sexual assault evidence kit. That’s part of the disclosure. They’re going to get a video statement from her. There may be other forensic testing, there may be fingerprints, maybe expert reports, there may be other narrative witnesses. So the police have a complete investigative file. You are entitled to receive every single aspect of that file. That’s the disclosure. So whatever the police have gathered, as long as it’s relevant, you’re entitled. Now sometimes there’s disputes about things that might not be relevant not disclosed, and that’s up to your lawyer to find out at court. But what happens then is, when you’re charged and you hire a lawyer, your lawyer will immediately write the Crown. Typically most Crown’s office have a form that we apply for disclosure. We also do a detailed letter, and they’re required to give us everything relevant from their case. That’s a case from the Supreme Court of Canada called Stinchcombe. An old case that requires the Crown to hand over the entire investigative file from the police as long as it’s relevant for you to make full answer and defence. Anything that could conceivably remotely be helpful to the defense has to be headed over. They can’t hold back anything. There’s rare exceptions to that. I won’t get into all of the details in this. That’s maybe perhaps that topic of another video. So that’s Stinchcombe. 

So what happens in terms of timelines? Well, if it’s a minor, non-complex criminal case, let’s say it’s impaired driving,  the crown, you know, let’s see if you’ve got an upcoming court date first appearance four weeks from now, your lawyer has requested disclosure. Will the crown have that to you, the initial disclosure before the first court date? Sometimes they’ll have it probably shortly after the first court date in most cases. 

Now, the initial disclosure package that we get, often it’s not complete. Often we have to review that A, B, C, D is missing, and we have to write the crown for that. And the crown will usually agree with us if they don’t agree with us. I us, we may need to bring a disclosure application to argue in front of a Judge that they’re withholding disclosure that’s relevant. The Crown might have a particular argument, legal argument to make why it’s not relevant, and we have to go in front of a Judge to do that.

On more complex cases, disclosure takes longer. An initial disclosure package on a serious charge like a murder charge might take months to provide. There’s typically going to be a lost of missing disclosure. Sometimes these cases have 3000 documents and videos and you name it, and it’s up to your lawyer to carefully scrutinize that go through and that figure out what’s missing and keep on the crown and keep bothering. Disclosure is so important for you to make a full answer and defence, because your lawyer and you needs to know every single aspect of the Crown’s case in order to break it down and attack credibility and reliability of witnesses. And that’s the importance of disclosure. You know, before Stinchcombe disclosure was really hit and miss in Canada and depending on the province and the particular office, sometimes you might just get 10 sheets of paper on a very complex case.  Stinchcombe came out years ago and said we are entitled to full disclosure. We’re a democratic country. You need to know the case that you are going to meet. 

And what I typically do is, once I get enough disclosure, I meet with the client, have them pour over it with me. I explain the defences to them, explain their options, explain what’s missing. At that point, I’m ready to at least take an initial statement from the client about their version of events. I don’t want the client really getting they’re complete version of events until they fully understand every aspect of the Crown’s case, what the complainant is saying, what the other witnesses are saying, because, you know, it’s just you don’t want to be pinning down your client version events, where they go, oh, there’s that little piece of evidence, because we have to answer to all that evidence. 

So every case is different, but we always advise clients so don’t necessarily to expect disclosure by the first court appearance that may be coming after that. That’s not unusual. Sometimes it takes months to get the missing disclosure. We have time. We’re in the Ontario Court of Justice management intake court, you know, remand court and disclosure can take months on some occasions to get complete disclosure and in complex cases, I’ve got a case I’m working on right now that there’s 1000s of documents I have poured through that case multiple times and each time I pour through that there could be a little missing piece of disclosure. So I’ve written like, literally, 20, 30, 40, letters to the crown about little missing pieces of disclosure. We now have complete disclosure, and the trial will take place about four months from now. So it’s a very careful process. Your lawyer has to know what you’re doing they’re doing. They have to know what they’re looking for. And for you as a client, that’s so important to know the complete case that’s being against you so that so that you can fully respond to every aspect. So that is what disclosure in Canada is. It can be a complex process. It can be a simple process or somewhere in between depending on the complexity of the case. Thank you for watching our video, we are absolutely committed to bringing the best possible criminal. and DUI education.