What the Crown Must Disclose

In a criminal case, "disclosure" means the evidence and information the Crown must share with the accused person and their lawyer. This includes evidence the Crown plans to use at trial, and evidence it does not plan to use.

Disclosure is usually requested early in the case and may be provided before, at, or after the first court appearance. It can arrive in stages and the Crown’s duty continues as the case develops. It applies whether the charge is summary, indictable, or a hybrid offence.

The duty to disclose comes from a Supreme Court of Canada decision, R. v. Stinchcombe, [1991] 3 S.C.R. 326. The Crown must disclose all relevant, non-privileged information in its possession or control, whether it tends to support the prosecution or the defence. The duty continues as the case develops. It does not mean that every record held by any public or private body is automatically part of ordinary Crown disclosure.

This means the Crown cannot hold back evidence just because it does not support a conviction. The rule is meant to give the accused a fair chance to answer the charge.

The Crown’s duty to disclose does not end once the first package is handed over. If police or the Crown find new relevant material later, they must share that too. This can happen at any stage of a case, including close to trial.

Because of this, a defence lawyer often checks for updated disclosure as a case moves forward, not only once at the start.

What is in a disclosure package depends on the case. It often includes police notes and reports, statements from witnesses, video or audio recordings, photographs, and expert reports where they exist.

Not every case has all of these. A simple case may have a short package. A more complex case may involve thousands of pages, hours of video, or other records.

Disclosure is broad, but it is not unlimited. Some material is privileged and does not have to be shared, such as certain communications between a lawyer and their client. Some private records concerning a complainant or witness are governed by separate statutory or third-party-record procedures. They are not automatically disclosed under the ordinary Stinchcombe process. These limits exist to balance fairness to the accused with other important interests, such as privacy.

Reviewing disclosure matters because it shows what evidence exists against the accused person. Deciding how to plead without seeing that evidence means deciding without the full picture.

A lawyer can review the disclosure package, explain what it shows, and talk it through before helping a client think about plea options. This step usually happens before preparing for trial, since it shapes what a trial would involve.

Sometimes the defence believes disclosure is missing something. A person’s lawyer can ask the Crown directly for material that appears to be missing.

If the Crown does not provide requested material, the defence may ask a court to decide whether it must be disclosed. The judge can review questions about relevance, possession or control, privilege, timing, and the appropriate remedy.

The defence does not have the Crown’s broad disclosure obligation and generally does not have to reveal its full evidence or strategy in advance. Specific notice or disclosure requirements can still apply, including for some expert evidence, Charter applications, and an intended alibi.

One area where disclosure by the defence can matter is an alibi — evidence that the accused was somewhere else when the offence happened. An accused does not have to prove an alibi or personally give police a statement. If the defence intends to rely on an alibi, however, disclosure that is timely and detailed enough to permit a meaningful investigation can affect how the court assesses the alibi evidence. Inadequate disclosure can weaken the weight of an alibi, but it does not make the evidence inadmissible or remove the Crown’s burden to prove guilt. The Supreme Court of Canada explained this rule in R. v. Cleghorn, [1995] 3 S.C.R. 175.

A lawyer can review a disclosure package, explain what it shows, and advise on next steps, including plea options. See Know Your Lawyer for help finding one and understanding what a first meeting usually covers.

This page is general legal information for Canada. It is not legal advice. Every case is different, and only a lawyer who has reviewed the disclosure can advise on a specific case.