Limitations on Access to Disclosure

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This page was last substantively updated or reviewed January 2018. (Rev. # 84294)

General Principles

See also: Crown Duty to Disclose

Normally, the Crown must give the accused copies of disclosure without conditions. Any deviation, such as imposing "trust conditions" or undertakings, must be justified by the Crown.[1]

The "facts and complexity" of the case should dictate the "nature and extent" of the crown disclosure.[2]

When considering whether to impose any restrictions on disclosing sensitive materials, a balance of factors are considered including the right to full answer and defence, privacy rights of third parties, and the administration of justice.[3]

  1. R v Mercer, 1992 CanLII 7230 (NLSCTD), 105 Nfld. & PEIR 1; 331 APR 1 (Nfld. T.D.), per AyIward J
    R v Little, 2001 ABPC 13 (CanLII), 82 CRR (2d) 318, per Meagher J, at paras 33 to 34
    Christopher Sherrin and Philip Downes, “The Criminal Lawyers’ Guide to Disclosure and Production” (Aurora: Canada Law Book Inc, 2000) at 53
  2. R v Petten, 1993 CanLII 7763 (NL CA), 81 CCC (3d) 347, per Gushue JA, at para 8
    R v Luff, 1992 CanLII 7113 (NL CA), 11 CRR (2d) 356, per Gushue JA
  3. R v Blencowe, 1997 CanLII 12287 (ON SC), 118 CCC (3d) 529, per Watt J

Undertakings and Trust Conditions

The discretionary imposition of explicit conditions upon defence counsel is reviewable by the court.[1]

The Crown has an obligation to protect the privacy of victims when affecting disclosure obligations.[2]

A court may also order "trust conditions" to be binding upon a self-represented accused.[3]

Requirements to Return Disclosure

A trust condition requiring defence counsel to return all disclosure to the Crown should the accused obtain new counsel is not unreasonble.[4] Under this condition, the Crown's refusal to make a second copy for new counsel does not breach the duty to disclose.[5]


Where access is given for the purpose of analysis by a defence expert, the court may order that the expert be identified.[6]

Excessive Conditions

Where the conditions of an undertaking are too onerous, they may be in violation of the Charter including the right to full answer and defence.[7] Remedy can include judicial direction to amend the proposed undertaking.[8]

Example undertakings: R v Floria, 2008 CanLII 57160 (ON SC), per Croll J

  1. R v WAO, 2001 SKCA 64 (CanLII), 154 CCC (3d) 537, per Cameron JA, at para 17
    R v Vokey, 1991 CanLII 6987 (NLSCTD), (1991), per Bartlett J, at p. 18 ("The manner of disclosure must, for now, be regarded as one of reviewable discretion on the part of Crown counsel. It ought generally to be accomplished by the delivery of photostatic copies of the materials required to be disclosed. There will be circumstances where the provision of photostatic copies is not desirable.")
  2. R v Smith, 1994 CanLII 5076 (SKQB), [1994] SJ 38, per Walker J
  3. R v Muirhead, 1995 CanLII 4064 (SK CA), 134 WAC 242, per Jackson JA
  4. R v Barbour, 2017 ABCA 231 (CanLII), per curiam (3:0), at para 33
  5. Barbour, ibid.
  6. e.g. R v Hathway, 2006 SKQB 206 (CanLII), per Rothery J
  7. R v Mohammed, 2007 CanLII 5151 (ON SC), 152 CRR (2d) 129, per Dawson J
  8. e.g. Mohammed, ibid.

Defence Obligations Accepting Disclosure

The defence must be made aware of the existence of all disclosure including circumstances where the Crown exercises discretion not to release certain parts of it.[1]

  1. R v Petten, 1993 CanLII 7763 (NL CA), 81 CCC (3d) 347, per Gushue JA, at para 8

Limiting Sensitive Videos

In sensitive cases of sexual assault involving self-represented accused, the Crown obligation to disclose video statements of a complainant may be satisfied by allowing for a viewing at the Crown office so long as there is no reasonable possibility of impeding the right to full answer and defence.[1]

  1. e.g. R v Papageorgiou, 2003 CanLII 52155 (ON CA), 176 CCC (3d) 246, per curiam

Limiting Child Pornography

See also: Types of Disclosable Materials

It is not settled in law whether the defence should get copies of the alleged child pornography in order to prepare for their defence.

It is recognized that child pornographic imagery "do not depict the crime — they are the crime."[1]

Possession and access to child pornography is permitted under s. 163.1(6):

[omitted (1), (2), (3), (4), (4.1), (4.2), (4.3) and (5)]


(6) No person shall be convicted of an offence under this section if the act that is alleged to constitute the offence

(a) has a legitimate purpose related to the administration of justice...; and
(b) does not pose an undue risk of harm to persons under the age of eighteen years.

[omitted (7)]
1993, c. 46, s. 2; 2002, c. 13, s. 5; 2005, c. 32, s. 7; 2012, c. 1, s. 17; 2015, c. 23, s. 7.


Note up: 163.1(6)

Courts have been divided on what form the disclosure of alleged child pornographic materials should take in order to satisfy disclosure obligations. Certain jurisdictions have found that disclosure of the recordings must be given in full subject to a restrictive undertaking.[2] Others have found that simply permitting the accused counsel to review the materials in a controlled, private setting is sufficient. The defence is not therefore entitled to a copy of the materials.[3]

Where the defence seeks mirror copies of the hard drives to perform their own forensic analysis, the Crown is obliged to provide them.[4]

Courts in England and Wales have permitted the limited disclosure of child pornography to defence counsel to prepare for trial.[5]

  1. R v Hunt, 2002 ABCA 155 (CanLII), 166 CCC (3d) 392, per curiam, at para 16
  2. R v Blencowe, 1997 CanLII 12287 (ON SC), 118 CCC (3d) 529, per Watt J
    R v Garbett, 2007 ONCJ 576 (CanLII), 165 CRR (2d) 165, per MacDonnell J, at para 9
    R v Cassidy, 2004 CanLII 14383 (ON CA), , 69 OR (3d) 585, per curiam
  3. R v WAO, 2001 SKCA 64 (CanLII), 154 CCC (3d) 537, per Cameron JA, at paras 32 to 34 - re video tape of sex assault
    R v Papageorgiou, 2003 CanLII 52155 (ON CA), 176 CCC (3d) 246, per curiam - re video tape statements
  4. R v Cassidy, 2004 CanLII 14383 (ON CA), 182 CCC (3d) 294, per curiam
  5. see Crown Prosecution Service v LR [2010] EWCA Crim 924 (28 April 2010) URL:

Self-represented Accused

Self-represented accused are generally entitled to the same materials as counsel except where "safety, security or privacy interests of any person" are endangered. [1]

However, the courts may restrict a self-represented accused's access to disclosure in certain circumstances.[2]

Where the accused has a history of inappropriate use of disclosure it may be appropriate to impose restrictions such as:[3]

  • accessing disclosure at the crown office in a private setting. No copies can be made but they may take notes;
  • accessing a copy of disclosure kept in the courtroom during trial;
  • keeping copies of transcripts and exhibits;
  1. e.g. see R v Papageorgiou, 2003 CanLII 52155 (ON CA), 176 CCC (3d) 246, per curiam
  2. R v Kelly, 2015 ABCA 200 (CanLII), 325 CCC (3d) 136, per curiam, at paras 6 and 7
  3. Kelly, ibid., at para 7