Whether you’re a fan of Boston Legal or Law and Order, you’ve no doubt seen an episode where a Crown Prosecutor wins his or her case by producing a surprise piece of evidence or witness during a trial. The Defence Lawyer usually has no idea this evidence or witness exists and is helpless to respond, tipping the scales of justice in favor of Courtroom shock and awe.
Spoiler alert – we lawyers who practice criminal law can’t pull these shenanigans in real life. In the Canadian Criminal Justice System, the Crown has a legal duty to disclose all relevant information to the defence. In practice, each Accused (or his or her Defence lawyer) is given information called Disclosure by the Crown Prosecutor at the outset of a criminal matter. Disclosure is a copy of the police file containing all of the relevant information and documents (such as one’s prior criminal record, witness statements, videos, and police officers’ notes) the police and Crown have relating to the criminal charges.
Most Accused who attend their first Court appearance without a lawyer will be given their Disclosure by the Crown in Court. When this happens, an Accused may ask the Judge to adjourn the matter to a later Court date. It is extremely important to take time to read Disclosure carefully – it contains the information the Crown will use to conduct the criminal prosecution.
If consulting a criminal defence lawyer, be prepared to provide him or her with the Disclosure. We need it to provide legal advice, as we use this information to confirm what the criminal charges are and to determine if the alleged facts meet the legal requirements for a conviction. A lawyer will also look at Disclosure to see if any legal defences are available to an Accused and whether the Disclosure is complete and the proper steps and protocol were followed during the criminal investigation.