Anyone facing a criminal charge in Ontario will hear the word "disclosure" early and often. It is one of the most important parts of the criminal process, since it is generally how an accused person and their lawyer learn what evidence the Crown has. This guide explains what disclosure means, what it generally includes, and why reviewing it carefully matters. It is general information only and does not replace legal advice about the disclosure in a specific case.
People sometimes assume that being charged means the Crown already has an airtight case, ready to present in full. In reality, an accused person and their lawyer usually only see the details of that evidence once disclosure is reviewed, which is one of the reasons this stage of a case is so important.
What Is Disclosure?
Disclosure refers to the evidence and information the Crown provides to an accused person, generally through their lawyer, regarding the case against them. This obligation exists because Canadian law recognizes that a person cannot properly respond to an allegation, or make informed decisions about how to proceed, without knowing the evidence the Crown intends to rely on and, generally, other relevant material gathered during the investigation.
Disclosure is not the same as a full explanation of the Crown's legal argument or strategy. Rather, it is generally focused on the underlying evidence and information, such as police notes, statements, and other materials connected to the investigation, that the defence is entitled to review.
The obligation to disclose generally applies to relevant material the Crown has or can reasonably obtain, not only to evidence that helps the Crown's case. In other words, disclosure is generally expected to include material that could assist the defence as well, not just material that supports the prosecution. This reflects the broader principle that a criminal trial should be a fair process, not a one-sided presentation of evidence.
Why Disclosure Matters
Disclosure matters because it is generally the foundation for every major decision in a criminal case. Without reviewing disclosure, it is difficult to meaningfully assess the strength of the Crown's case, identify potential issues or defences, or make an informed decision about whether to consider a resolution or proceed toward trial. Decisions made before disclosure has been reviewed are generally considered premature.
This is one of the main reasons criminal lawyers generally caution against deciding how to plead, or agreeing to anything with the Crown, before disclosure has been received and reviewed. A case can look very different once the underlying evidence is actually seen, compared to how it might have appeared based on the charge alone.
Reviewing disclosure can also affect decisions well beyond a plea, including whether to bring a pretrial application, whether certain evidence may be challenged, and how realistic a trial would be if the matter were not resolved earlier. In this sense, disclosure is not just a formality; it is generally the working material that shapes almost every strategic decision in a criminal case.
What Disclosure Generally Includes
The specific contents of disclosure vary by case, but common categories include:
- Police officer notes and reports related to the investigation
- Witness statements, including those from a complainant
- Video or audio recordings, such as body-worn camera footage or 911 calls, where they exist
- Photographs relevant to the investigation
- Forensic or expert reports, where applicable
- A record of the accused person's own statements to police, if any were made
- Any criminal record information relevant to the case
This is a general list rather than a guarantee of what any specific case will include. The scope and volume of disclosure can range from a few pages in a straightforward matter to a large volume of material in a more complex case.
When Disclosure Is Provided
Disclosure is generally requested by the defence early in the process, often around the time of the first court appearance, and the Crown is generally expected to provide it within a reasonable time afterward. Exactly how long this takes can vary considerably depending on the complexity of the case, the volume of material involved, and how busy the specific Crown's office and police service are.
It is common for disclosure to arrive in more than one package, particularly in more complex cases, as additional material becomes available or as previously requested items are located and processed. This is a normal part of the process rather than necessarily a sign of a problem with the case.
Different types of evidence can also arrive on different schedules. Basic police notes and witness statements are often available relatively early, while items such as forensic reports, specialized expert analysis, or data extracted from electronic devices can take considerably longer to process. A lawyer tracking a file will generally have a sense of what is still outstanding and can follow up with the Crown as needed.
Disclosure timelines can feel frustrating, especially early in a case. A lawyer can help track what has been requested, what has been received, and what is still outstanding, and can raise delays with the Crown or the court where appropriate.
Disclosure and Digital Evidence
Criminal investigations increasingly involve digital evidence, such as text messages, social media activity, cell phone location data, and surveillance or doorbell camera footage. When this type of evidence exists and is relevant, it is generally included as part of disclosure, though digital evidence can take longer to process and produce than paper records, particularly where it needs to be extracted from a device or downloaded from a third party.
Reviewing digital evidence often requires particular attention, since context matters a great deal. A short video clip or an isolated text message can look very different once it is understood alongside the surrounding footage, messages, or circumstances. A lawyer will generally want to see the complete relevant material, not just excerpts, before drawing conclusions about what it shows.
Reviewing Disclosure With a Lawyer
Once disclosure is received, a lawyer will generally review it carefully with an eye to the elements the Crown would need to prove, any inconsistencies or gaps in the evidence, and any potential legal issues, such as questions about how evidence was gathered. This review forms the basis for advice about the general strengths and weaknesses of the case.
Clients are generally encouraged to review disclosure with their lawyer rather than alone, since a lawyer can help interpret technical language, police terminology, and the legal significance of specific pieces of evidence that might not be obvious on a first read.
It is normal to have a strong emotional reaction while reviewing disclosure, particularly material such as statements or recordings connected directly to the alleged incident. Taking time to process that reaction, and returning to specific questions with a clear head, often leads to a more productive conversation with a lawyer than trying to respond to everything at once during a first read.
Ongoing and Additional Disclosure
Disclosure obligations do not necessarily end after the first package is provided. If additional relevant material comes to light later in the process, such as further witness statements or newly obtained records, the Crown generally has an ongoing obligation to disclose it. A lawyer will typically continue to request and review updated disclosure as a case proceeds, particularly as it gets closer to a resolution discussion or trial.
If Disclosure Is Incomplete or Delayed
If disclosure appears incomplete, or if it is significantly delayed, a lawyer can raise the issue directly with the Crown and, if necessary, with the court. Courts generally have tools available to address disclosure problems, including adjourning a matter to allow more time, or, in more serious situations, other remedies where a delay has caused genuine unfairness. What remedy, if any, is appropriate depends heavily on the specific circumstances and is a matter for a lawyer to assess and argue if needed.
It is generally a good idea to keep a simple written record of what disclosure has been requested and received, including dates, so that any pattern of delay is easy to demonstrate if it becomes necessary to raise the issue formally. This kind of record-keeping is something a lawyer will typically maintain as a matter of course, but it can also help a client stay informed about where their case stands.
Disclosure and Third-Party Privacy
Some disclosure involves sensitive personal information about complainants, witnesses, or other third parties, such as medical or counselling records. Canadian law includes specific processes for how this type of sensitive third-party material is handled, which can involve additional steps or a separate application before certain records are produced. This area is legally detailed, and general statements about it can easily be inaccurate for a specific case, so it is best addressed directly with a lawyer when it arises.
This balance exists because the law recognizes competing interests: an accused person's right to make full answer and defence, and the privacy interests of complainants and witnesses, particularly in sensitive cases. How that balance is struck in a specific case depends on the type of record, the nature of the charge, and the arguments presented, which is another reason this is an area where a lawyer's guidance matters a great deal.
Making Disclosure Requests
In general, requests for disclosure are made in writing, often by a lawyer, and are directed to the Crown's office handling the case. Keeping a clear record of what has been requested and when can help identify gaps and support any argument that disclosure has been unreasonably delayed. A person without a lawyer can also request disclosure, often with help from duty counsel, though having a lawyer manage this process is generally more effective, particularly in more complex cases.
A disclosure request generally does not need to specify every individual document by name, since the requesting party often does not yet know exactly what exists. Instead, a request typically asks for all relevant material connected to the investigation, with more specific follow-up requests made once an initial package has been reviewed and any gaps identified.
If You Don't Have a Lawyer Yet
People without a lawyer can still request and receive disclosure, often with assistance from duty counsel, but reviewing it effectively without legal training can be difficult. Disclosure often includes technical language, police shorthand, and legal terminology that is not always intuitive to someone outside the legal system. Retaining a lawyer, or at least getting help from duty counsel to review key documents, is generally worthwhile once disclosure is received.
Legal Aid Ontario may be able to help cover the cost of a lawyer for people who qualify financially, and applying as early as possible can help avoid delays once disclosure arrives. Waiting until disclosure is already in hand to start the process of finding a lawyer can add unnecessary time to a case.
Disclosure in More Complex Cases
In more complex cases, such as those involving multiple accused people, extensive digital evidence, or lengthy investigations, disclosure can run to thousands of pages or more, along with substantial amounts of audio or video material. Courts and Crown offices generally have processes in place to manage large volumes of disclosure, including staged production and, in some cases, specialized software to organize and search through material.
For an accused person, a large volume of disclosure does not necessarily mean the case against them is stronger; it often simply reflects the scope of the underlying investigation. A lawyer experienced with complex disclosure can help identify the portions most relevant to a specific case, rather than treating every page as equally significant.
Common Misunderstandings
- "No disclosure means no case." A delay in receiving disclosure does not mean a charge will be dropped. It generally means more time is needed before the case can move forward meaningfully.
- "Disclosure tells me everything about the Crown's strategy." Disclosure generally covers the underlying evidence, not the Crown's legal arguments or internal reasoning.
- "I should decide how to plead before seeing disclosure." Reviewing disclosure first is generally considered an important step before making that kind of decision.
Frequently Asked Questions
How long does it take to get disclosure in Ontario?
This varies considerably depending on the complexity of the case and the volume of material involved. There is no single fixed timeline that applies to every case.
Can I get a copy of my disclosure to keep?
This can depend on the type of material and any restrictions that apply, particularly for sensitive material. A lawyer can advise on what is appropriate for a specific case.
What if the disclosure contradicts what I remember happening?
This is common and is exactly the kind of issue disclosure is meant to help identify. Discussing any inconsistencies with your lawyer is an important part of preparing your case.
Do I have to pay for disclosure?
Disclosure practices can vary, and specific costs, if any, depend on the courthouse and the format of the material. A lawyer or duty counsel can explain the practice in a specific jurisdiction.
Can disclosure be used to negotiate a resolution?
Yes, reviewing disclosure often informs resolution discussions between the Crown and defence, since it helps both sides understand the strength of the evidence.
What if I disagree with something in the disclosure?
Disagreeing with details in disclosure is common and expected. Discuss any disagreements with your lawyer, since they can be important for building your defence or identifying issues with the evidence.
Does disclosure include text messages and social media?
Where relevant and available, this type of digital evidence is generally included as part of disclosure, though obtaining and processing it can sometimes take additional time.