Special Disclosure Issues
Disclosure to Crown
There are limited obligations on defence to disclose evidence to the Crown. The primary obligation to disclose defence evidence is when alibi evidence will be advanced.
Where defence is calling expert evidence supported by a report, the report and any other foundation materials must be disclosed to the Crown no later than the time at which the witness is called.
Pre-Charter and Pre-Stinchcombe Disclosure
Under the common law the Crown has a general duty to disclose material evidence to the defence regardless of whether it is favourable to the Crown and whether the witness will be called by the Crown. A breach of the common law duty render the trial unfair and be ground for appeal.
Uses of Disclosure Other Than For Defence
When defence take possession of disclosure there is an implied undertaking "not to disclose its contents for any purpose other than making full answer and defence in the proceedings". They have an obligation as officers of the court to not disclose any materials to the public. Disclosure to third-parties is only available where their "examination or possession of the material is in good faith necessary to prepare and conduct the defence".
The Crown can petition the Court to order that defence counsel return any disclosure given to them once the entitlement to the materials have expired.
R v Basi, 2011 BCSC 314 (CanLII), at para 42 ("...I would affirm that an accused who receives disclosure material pursuant to the Crown’s Stinchcombe obligations, or to a court order, does so subject to an implied undertaking not to disclose its contents for any purpose other than making full answer and defence in the proceeding.")
R v Little, 2001 ABPC 13 (CanLII)
R v Mossaddad, 2017 ONSC 5520 (CanLII) at para 38 ("...the time has come for this court to recognize that whether or not the Crown disclosure provided to defence counsel or a self-represented accused is the subject of a written undertaking, that a deemed undertaking nonetheless would apply such that the only basis upon which the Crown disclosure may be used would be in the context of providing a full answer and defence to the criminal proceedings.")
Home Office v Harman (H.O.(E.)),  A.C. 280 (H. L.) at p.304 - in civil context, breach of implied undertaking amounts to contempt of court. Adopted in Canada in Worth Ltd. v Acadia Pipe and Supply Corp., et al (1991), 1991 CanLII 5837 (AB QB), 113 A.R. 298 (Q.B.)] and in Goodmani v Rossi (1995), 1995 CanLII 1888 (ON CA), 125 D.L.R. (4th) 613, 24 O.R. (3d) 395 (C.A.)
- R v Smith (1994), 1994 CanLII 5076 (SK QB), 146 Sask. R. 202 (Q.B.) ("One of those duties [to the court], in my view, is not to give disclosure materials to the public. To do so would fall short of acting responsibly as an officer of the court. ") see also Report of the Attorney General’s Advisory Committee on Charge Screening Disclosure, and Resolution Discussions
Smith at p. 205
Return of Disclosure
Once proceedings have completed there is no entitlement to the disclosure.
- R v Basi, 2011 BCSC 314 (CanLII)
Access to Disclosure by Third Parties
Typically disclosure constitutes confidential government records. They are obtainable from parties other than the Crown or Defence counsel by way of a request through the appropriate freedom of information or privacy legislation.
A third party request for the production of materials that are part of a proceeding must be made to the presiding judge.
Where a matter has been concluded, the superior court does not have jurisdiction to order the release or production of any documents or evidence to third party applicants.
Federal (RCMP, etc): Privacy Act, RSC 1985, c P-21 and Access to Information Act, R.S.C., 1985, c. A-1
Ontario: Municipal Freedom of Information and Protection of Privacy Act, RSO 1990, c M.56
Nova Scotia:Freedom of Information and Protection of Privacy Act, SNS 1993, c 5
Alberta: Freedom of Information and Protection of Privacy Act
Personal Information Protection Act
- Canadian Broadcasting Corporation v Canada (Attorney General), 2009 NSSC 400 (CanLII) upheld at 2010 NSCA 99 (CanLII)