If you’ve been charged with a criminal offence in Canada, one of the first and most important steps in the legal process is something called disclosure. The term may sound technical, but it plays a vital role in ensuring a fair trial and protecting your rights under Canadian law.
This article explains what disclosure is, why it matters, what it includes, and what to do if disclosure is delayed or incomplete.
What Is Disclosure?
In Canadian criminal law, disclosure refers to the process by which the Crown prosecutor provides the accused (and their lawyer) with access to all of the evidence in a case. This includes both the evidence the Crown intends to use in court and any information that may be relevant to the defence—even if it weakens the Crown’s case.
Disclosure is a constitutional right under the Canadian Charter of Rights and Freedoms. Section 7 of the Charter guarantees the right to make full answer and defence, which would not be possible without access to the evidence.
Why Is Disclosure Important?
Proper disclosure allows the accused to:
- Understand the case being made against them
- Review the strength or weakness of the evidence
- Decide whether to plead guilty or not guilty
- Build a meaningful defence
- Avoid surprises at trial
Without full disclosure, the accused would be unable to prepare a proper defence, which would violate their right to a fair trial.
What Is Included in Disclosure?
Disclosure typically includes a wide range of materials related to the investigation and alleged offence. Common items found in a disclosure package include:
- Police reports and officer notes
- Witness statements
- Audio and video recordings (e.g., surveillance, interviews)
- Photographs from the scene
- Forensic evidence (e.g., fingerprints, DNA)
- Medical reports, if relevant
- Copies of any statements made by the accused
- Charge sheets and procedural documents
Depending on the complexity of the case, disclosure can be delivered in hard copy, electronic format, or both.
When Does Disclosure Happen?
Disclosure is usually provided early in the court process, it is supposed to be provided at the first court appearance. However, due to the current backlog in the criminal justice system, this is not always the case. Further, it may be provided in stages, particularly if the case involves large amounts of evidence or if new information becomes available.
In some cases, initial disclosure is limited to the basic police report and summary of allegations, with further disclosure arriving later. It is the defence lawyer’s job to request any missing or outstanding disclosure and to ensure it is complete before advising their client on next steps.
Can Disclosure Be Withheld?
In most cases, the Crown must disclose all relevant information. However, there are limited exceptions. Information may be withheld if it:
- Is subject to privilege (such as solicitor-client communications)
- Could compromise witness safety
- Involves ongoing investigations
- Would cause unnecessary harm if disclosed
Even in these cases, a judge may review the materials privately to decide whether non-disclosure is justified.
If disclosure is unfairly withheld or significantly delayed, the defence may apply to the court for remedies. In extreme situations, charges can even be stayed (permanently halted) due to the Crown’s failure to meet disclosure obligations.
What Happens If Disclosure Is Incomplete?
Incomplete disclosure can seriously affect a person’s ability to defend themselves. If key materials are missing—such as video evidence, key witness statements, or expert reports—the defence may be unable to evaluate the case properly.
A defence lawyer can request missing items from the Crown, and if necessary, file an application in court to compel full disclosure. In cases where disclosure is delayed for too long, the defence may argue that the accused’s Charter rights have been violated.
Disclosure and Guilty Pleas
A guilty plea should never be entered before full disclosure has been received and reviewed. The accused must be fully informed about the evidence before making such a significant decision. A lawyer will review the disclosure carefully to determine:
- Whether the evidence supports the charges
- If any defences may apply
- Whether a plea deal might be appropriate
- If the Crown’s case has weaknesses that could lead to a withdrawal or acquittal
How to Review Disclosure Effectively
When disclosure is received, it’s important to:
- Go through the material with a defence lawyer
- Understand the nature of the evidence (both favourable and unfavourable)
- Identify inconsistencies or gaps in the investigation
- Assess whether additional evidence needs to be requested (such as 911 calls, security footage, or phone records)
In some cases, reviewing the disclosure may reveal that the Crown’s case is weaker than expected, opening the door to having charges dropped or resolved favourably.
The Role of a Defence Lawyer in Disclosure
A criminal defence lawyer plays a key role in the disclosure process by:
- Ensuring the Crown provides all legally required evidence
- Identifying any missing or redacted materials
- Filing court applications when disclosure is delayed or incomplete
- Using the disclosure to develop a defence strategy
- Advising the accused on next steps based on the evidence
Without proper legal guidance, an accused person might overlook critical pieces of evidence or misunderstand the strength of the case against them.
Schedule a Free Consultation With Lichtman Law
If you or your child has been charged with a criminal offence, understanding the disclosure process is one of the first and most important steps in your defence. At Lichtman Law, we review every detail of your case to ensure your rights are protected and that nothing is missed. We are committed to providing strategic, experienced legal support at every stage of the criminal justice process.