Limitations on Access to Disclosure

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General Principles

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.

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

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.

Undertakings and Trust Conditions

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

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

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

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. Under this condition, the Crown's refusal to make a second copy for new counsel does not breach the duty to disclose.

Experts

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

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. Remedy can include judicial direction to amend the proposed undertaking.

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

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.

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.

Limiting Child Pornography

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."

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

163.1
...

Defence

(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.

– CCC

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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. 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.

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

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

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.

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

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

• 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;