Disclosure is the body of evidence the police have gathered during the course of their investigation into the charges against you. Once you have been charged, all this evidence is forwarded to the Crown Prosecutor’s office. The Crown Prosecutor is required to “disclose” all this information to you or your defence lawyer. Beyond some minor limitations, you have a constitutionally protected right to review all relevant evidence in the possession of the Crown, whether it is inculpatory or exculpatory. In other words, you are entitled to review everything the Crown has about the incident, whether it hurts or helps your case. This includes the police report, police notes, witness statements, recordings of police interviews, video footage, etc.
Our clients sometimes ask us if the police or prosecutors are allowed to bring new evidence or witnesses to court that they have not given us information about. The answer is no. Whatever they intend to present to the judge, they have to present to us first.
Note, however, that disclosure is technically the property of the government, and you are only entitled to use your disclosure for one purpose: to defend against the criminal charges you are facing. Sometimes when our lawyers receive disclosure from the Crown, we are asked by our clients if they can have a copy of the disclosure package. We always have to check why they are asking. If it’s to prepare a defence, this is typically an acceptable reason. If it is for the purpose of a lawsuit, or a child custody battle, on the other hand, we cannot provide a copy of the disclosure materials.
How to get disclosure:
Disclosure is provided by the Crown prosecutor’s office. It is not provided automatically, and must be expressly requested. This is most commonly done with the assistance of duty counsel at the first court appearance. This can also be done by attending the Crown prosecutor’s office and submitting a paper request. If you retain a lawyer, your lawyer will request disclosure on your behalf.