Questions particulières liées à la divulgation

Fr

Cette page a été mise à jour ou révisée de manière substantielle pour la dernière fois January 2021. (Rev. # 11633)

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Defence Duty to Disclose to Crown

There are limited obligations on defence to disclose evidence to the Crown. The primary obligation to disclose defence evidence is when alibi evidence will be advanced.

Where defence is calling expert evidence supported by a report, the report and any other foundation materials must be disclosed to the Crown no later than the time at which the witness is called.

Normally, the accused is entitled to retain an expert or conduct independent investigations without any obligation to disclose any of the results or any materials the independent third party relied upon. These materials are considered covered by litigation privilege.

When the accused elects to call such a witness to testify, the act of calling the expert constitutes waiver of litigation privilege.

There are several disclosure obligations. An expert witness who is to testify for the defence must provide 30 days notice of the intention to call the expert witness and provide the report or summary of evidence no later than at the close of the Crown's case.

When an expert testifies at trial, the party calling them must disclose any material considered by the expert in coming up with their opinion.

It does not matter whether the particular document was made for the use of counsel or for the assistance of the experts, it is only whether the records relate to information that the expert relied upon. So for example, if defence possessed a recording made in an interview with a person who's evidence the expert relied upon, then it will constitute disclosable records. It is not necessary that the expert put weight on the particular record.

Defence obligation is not satified by merely disclosing a summary of the record.

Although the accused is entitled to withhold the records until the moment the expert is called, the Crown may seek an order for disclosure pre-emptively and may be entitled to an adjournment to review the materials alone or with a Crown expert.

Records disclosed by defence can be used by the Crown for any legimitate purpose and not solely for the purpose of cross-examining the expert witness.

Pre-Charter and Pre-Stinchcombe Disclosure

Under the common law the Crown has a general duty to disclose material evidence to the defence regardless of whether it is favourable to the Crown and whether the witness will be called by the Crown. A breach of the common law duty render the trial unfair and be ground for appeal.

Uses of Disclosure Other Than For Defence

When defence take possession of disclosure there is an implied undertaking "not to disclose its contents for any purpose other than making full answer and defence in the proceedings." They have an obligation as officers of the court to not disclose any materials to the public. Disclosure to third-parties is only available where their "examination or possession of the material is in good faith necessary to prepare and conduct the defence."

The Crown can petition the Court to order that defence counsel return any disclosure given to them once the entitlement to the materials have expired.

Return of Disclosure

Once proceedings have completed there is no entitlement to the disclosure.

Access to Disclosure by Third Parties

Typically disclosure constitutes confidential government records. They are obtainable from parties other than the Crown or Defence counsel by way of a request through the appropriate freedom of information or privacy legislation.

A third party request for the production of materials that are part of a proceeding must be made to the presiding judge.

Where a matter has been concluded, the superior court does not have jurisdiction to order the release or production of any documents or evidence to third party applicants.