Disclosure and Charge Screening
Under Canadian law, a person charged with a criminal offence has a right to disclosure. Disclosure is the information in police and Crown possession that may be relied upon in any way to further their prosecution. Put simply, a person charged has the same right to evidence as the person prosecuting it. There are some very limited exceptions to what a person is entitled to in disclosure. Those limits are usually as a result of privilege, complete irrelevancy, or if the material is not in the possession of the Crown or police prosecuting the matter. The leading case on the matter that set the stage for disclosure in Canada is R. v. Stinchcombe. Since that decision, the law on disclosure has expanded into a highly technical and complicated area of jurisprudence.
There are also limits to disclosure when the offence is of a sexual nature and the material sought is highly sensitive such as therapeutic records. There are means to obtain disclosure that is not otherwise provided but it requires applications before the court often framed as a “third party records” application. These means are far too complicated to be discussed with any useful meaning here. There may also be instances where the disclosure is of such a sensitive nature (for example matters of national security, or obscene material and illegal pornography) that the prosecutor will only release the material to a lawyer who provides an undertaking to store and use it in a very limited manner. A person seeking any of this non-disclosed material is best served by retaining an experienced criminal defence lawyer to obtain the information.
What is disclosure, when do I get it, what does it cost, and what is in it?
Initial disclosure Disclosure is typically provided on the first appearance in criminal court. There is no fee for disclosure; however, if disclosure is lost, the Crown will often require a copying fee be paid for the inconvenience. Items typically found in disclosure include, but are not limited to:
- Police notes
- Witness statements
- Video or DVD statements or surveillance
- Forensic evidence
- Radio or 9-1-1 calls
Once initial disclosure if provided, it is prudent to retain a lawyer so they may review it and request any outstanding items from the Crown. Your disclosure package is very important with sensitive material inside. Do not lose your disclosure and do not let anyone else look at it other than your lawyer.
Charge Screening: Indictment of Summary Conviction
When you receive your disclosure, there is often a “charge screening form” on the front of the package. This sets out how the Crown intends to prosecute the charges. There are two ways the Crown may “elect”. The Crown may proceed by way of summary conviction, or by way of indictment.
To understand more about the difference between a “summary election” or a “indictable offence” you can visit our webpage on the matter here. In short, a summary election means the Crown considers it less serious and usually carries a maximum of 6 months imprisonment, although in some instances it may be up to 18 months in jail as a maximum sentence. If the Crown proceeds by indictment, they consider the matter more serious and will often afford the accused the right to a preliminary hearing and jury trial. A Crown election is supposed to be made as soon as possible; however, it is not uncommon for the Crown to hold off until the day of trial on some occasions.
Charge Screening: Plea Bargains and Early Resolution
In addition to the information on how the Crown intends to proceed, the prosector will also typically set out what sort of sentence they would seek in the event of a guilty plea. There are often two positions take on sentence that reflects if the person proceeds to trial, or if they plead guilty before doing so. Consideration is given to an accused who pleads guilty early and therefore receives what is often referred to as a “plea bargain”.
However, the positions taken by the Crown do not necessarily reflect the best position a person may receive before or after trial. Ultimately, the issue of sentence is always up to a judge and not the Crown Attorney. It may be that the initial plea position offered is quite unreasonable in the circumstances and in speaking to an experienced criminal lawyer, they may help you appreciate whether it is a good deal or not, and more importantly whether to plead guilty at all: no deal is a good deal if a person can be acquitted of the charges.
Regardless of how the Crown intends to elect, or what the Crown’s position is on the “plea bargain”, this is always negotiable. There is nothing binding on the Crown to proceed one way or another simply because it is reflected on a charge screening form. Retaining a lawyer can assist an accused in ensuring that the best deal possible is worked out, or in the event the matter proceeds to trial, does so in the most preferred manner by the accused.