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==General Principles==
{{seealso|Principles of Fundamental Justice}}
The Crown must disclose all materials and information that is in its possession or control that is not clearly irrelevant, regardless of if the evidence is to be called at trial or is inculpatory or exculpatory.<ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|Sopinka J}} (7:0) at 339 and 343 (Stinchcombe #1)<br>
See also {{ibid1|Stinchcombe #1}}{{atL|1fsgp|20}} ("[w]hile the Crown must err on the side of inclusion, it need not produced what is clearly irrelevant")
{{CanLIIRP|Stinchcombe|1frl8|1995 CanLII 130 (SCC)|[1995] 1 SCR 754}}{{perSCC-H|Sopinka J}} (7:0) at 755 (Stinchcombe #2)<br>
{{CanLIIRP|Wickstead|1fr47|1997 CanLII 370|[1997] 1 SCR 307}}{{perSCC-H|Sopinka J}} (9:0)<br>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC|Charron J}} (8:0){{atL|2254d|17}} d(the crown need not produce records that have no "reasonable possibility" of relevance)<br>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0){{atps|41 to 42}} ("The Crown must disclose to the defence all information whether inculpatory or exculpatory under its control, unless the information is clearly irrelevant or subject to some privilege")<br>
</ref>
The right to disclosures premised upon (1) the right to know the case to meet and (2) the right to make full answer in defence of an offence charged.<ref>
{{CanLIIRP|Bottineau|232gk|2005 CanLII 63780 (ON SC)|32 CR (6th) 70}}{{perONSC|Watt J}}{{atL|232gk|31}}<br>
{{CanLIIRP|Mills|1fqkl|1999 CanLII 637 (SCC)|[1999] 3 SCR 668}}{{perSCC-H|McLachlin and Iacobucci JJ}} (7:1){{atps|682 to 683}} ("the right of an accused ot make full answer and defence is a pillar of criminal justice on which we rely heavily to prevent the conviction of the innocent... The Crown's constitutional and ethical duty to disclose all information in its possession reasonably capable of affecting the accused's ability to raise a reasonable doubt concerning his innocence"<br>
</ref>
Materials in possession of the Crown are not the "property" of the Crown but rather is the "property of the public to be used to ensure that justice is done."<ref>
{{CanLIIRP|Darwish|2843v|2010 ONCA 124 (CanLII)|252 CCC (3d) 1}}{{perONCA-H|Doherty JA}}{{atL|2843|33}}
</ref>
; Purpose
The right to disclosure is founded in the principle of fair play between parties<ref>
{{CanLIIRP|Lemay|21v5b|1951 CanLII 27 (SCC)|[1952] 1 SCR 232}}{{perSCC|Locke J}} (8:1)<br>
{{CanLIIRP|Boucher|1nlk7|1954 CanLII 3 (SCC)|[1955] SCR 16}}{{perSCC|Kerwin J}} (7:2)</ref>
as well as the right to make full answer and defence.
<ref>
{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (SCC)|[1997] 1 SCR 80}}{{perSCC-H|Sopinka J}} (5:4), (stated disclosure by the crown is "one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.")<br>
{{supra2|6hrn|Girimonte}}<br>
</ref>
When the Crown receives evidence it is not information that it holds in trust for the witness, rather it is "property of the public, to ensure that justice is done."<ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|Sopinka J}} (7:0) {{atL|1fsgp|12}}
</ref>
The right to disclosure is "among the most important and fundamental rights guaranteed to an accused in the criminal process."<ref>
{{CanLIIRx|Floria|21fcj|2008 CanLII 57160 (ON SC)}}{{perONSC|Croll J}}{{atL|21fcj|19}}<br>
</ref>
The right is guaranteed by the right to full answer and defence under s. 7 of the Charter.<ref>
{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (SCC)|[1995] 1 SCR 727}}{{perSCC-H|Sopinka J}} (9:0){{atp|742}}<br>
{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (SCC)|[1997] 1 SCR 80}}{{perSCC-H|Sopinka J}}{{atp|106}} ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter. ")<br>
</ref>
The Crown is not an "ordinary litigant". It's "undivided loyalty is to the proper administration of justice."<Ref>
{{CanLIIRx|Esseghaier|jdpfz|2021 ONCA 162 (CanLII)}}{{TheCourtONCA}}{{atL|jdpfz|26}}<Br>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC-H|Charron J}} (8:0){{atsL|2254d|17|, 49}}<Br>
</ref>
There is also a common law duty to provide "full and fair disclosure is a fundamental aspect of the Crown's duty to serve the Court as a faithful public agent, entrusted not with winning or losing trials."<ref>
{{CanLIIRP|O'Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411}}{{perSCC|L'Heureux‑Dubé J}} (6:3)
</ref>
The obligation also arises from "the premise that material in possession of the prosecutorial authorities that is relevant to a criminal prosecution is not the 'property' of the Crown, but is rather 'the property of the public to be used to ensure that justice is done'"<ref>
{{supra1|Darwish}}{{atL|2843v|33}}<br>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326, [1991] SCJ No 83}}{{perSCC-H|Sopinka J}} (7:0){{atp|333}} [SCR]<br>
</ref>
This right is found codified under s. 650(3) and s. 802 of the Criminal Code which state:
{{quotation2|
s.650<br>
{{removed|(1), (1.1), (1.2) and (2)}}
; To make defence
(3) An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
<br>
R.S., {{LegHistory80s|1985, c. C-46}}, s. 650; {{LegHistory90s|1991, c. 43}}, s. 9; {{LegHistory90s|1994, c. 44}}, s. 61; {{LegHistory90s|1997, c. 18}}, s. 77; {{LegHistory00s|2002, c. 13}}, s. 60; {{LegHistory00s|2003, c. 21}}, s. 12.
|{{CCCSec2|650}}
|{{NoteUp|650|3}}
}}
{{quotation2|
; Right to make full answer and defence
802 (1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.
<br>{{removed|(2) and (3)}}
R.S., c. C-34, s. 737.
|{{CCCSec2|802}}
|{{NoteUp|802|1}}
}}
The Crown has an obligation to obtain from an investigative agency any relevant information that it is aware of and must "take reasonable step to inquire about ...relevant information."<ref>
{{supra1|Darwish}}{{atL|2843v|31}}<br>
{{CanLIIRP|LAT|1npp1|1993 CanLII 3382 (ON CA)|84 CCC (3d) 90}}{{perONCA|Lacourcière JA}} (3:0) ("The Crown has a duty to obtain from the police -- and the police have a corresponding duty to provide to the Crown -- all relevant information and material concerning the case.")<br>
{{CanLIIRP|Vokey|fsxmg|1992 CanLII 7089 (NL CA)|72 CCC (3d) 97}}{{perNLCA|Goodridge CJ}} ("The duty rests upon Crown counsel to obtain from the police all material that should be properly disclosed to defence counsel.")<br>
</ref>
The duty to make disclosure creates a duty upon the crown to obtain the disclosure from the police and, likewise, the police have a corresponding duty to provide disclosure to the crown. <ref>
{{supra2|1npp1|LAT}}
</ref>
These obligations are jointly held by both Crown and police.<ref>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC-H|Charron J}} (8:0){{AtL|2254d|14}}</ref>
The "Stinchcombe disclosure regime" only applies to "material relating to the accused’s case" that are "in the possession or control" of the Crown.<ref>
{{supra1|McNeil}}{{atL|2254d|22}}</ref>
When confronted by a "pure fishing expedition", the Crown has no obligation to discover or disclose records.<ref>
{{CanLIIRP|Gingras|1p6kb|1992 CanLII 2826 (AB CA)|71 CCC (3d) 53}}{{TheCourtABCA}}</ref>
Police records from an unrelated file that is not in possession of the prosecuting Crown is not subject to first-party disclosure.<ref>
{{CanLIIRP|Thompson|22s5d|2009 ONCA 243 (CanLII)|243 CCC (3d) 331}}{{perONCA|Goudge JA}} (3:0)<br>
{{CanLIIRx|Schertzer|fvsg9|2011 ONSC 65 (CanLII)}}{{perONSC|Pardu J}}{{atL|fvsg9|41}}<br>
</ref>
The right does not distinguish between inadmissible and admissible evidence.<ref>
{{supra1|Bottineau}}{{atL|232gk|31}}
</ref>
The Crown should advise a self-represented accused of the right to disclosure. The judge should not take a plea until satisfied that the accused has been notified.<ref>
{{supra1|Stinchcombe}}{{atp|343}}
("In the rare cases in which the accused is unrepresented, Crown counsel should advise the accused of his right to disclosure and a plea should not be taken unless the trial judge is satisfied that this has been done.")
</ref>
; Case-to-Meet Principle
The doctrine of the "case-to-meet" is a fundamental requirement of a fair trial. It is protected by the common law and the Constitution.<ref>
{{CanLIIRP|Heaton|gft9g|2014 SKCA 140 (CanLII)|318 CCC (3d) 115}}{{perSKCA|Jackson JA}} (3:0){{atL|gft9g|24}}<br>
{{CanLIIRP|Underwood|1fqwz|1998 CanLII 839 (SCC)|[1998] 1 SCR 77}}{{perSCC|Lamer CJ}} (5:0){{atL|1fqwz|5}}<br>
</ref>
; History
Prior to the 1991 release of the decision of R v Stinchcombe, the general duty to disclosed varied between jurisdictions. The Crown had some discretion to withhold evidence that was deemed uncredible.<Ref>
{{supra1|Stinchcombe}}
</ref>
{{reflist|2}}
==First-Party Disclosure Principles and Obligations ("Stinchcombe")==
The Martin Committee produced a report considering the decision. The report detailed the principles of the case{{atp|146}}:
# The fruits of the investigation which are in the possession of the Crown are not the property of the Crown for the use in securing a conviction, but, rather, are the property of the public to ensure that justice is done.<ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326 (SCC)}}{{perSCC-H|Sopinka J}} (7:0){{atL|1fsgp|12}}</ref>
# The general principle is that all relevant information must be disclosed, whether or not the Crown intends to introduce it in evidence. The Crown must disclose relevant information, whether it is inculpatory or exculpatory, and must produce all information which may assist the accused. If the information is of no use, then it is irrelevant and will be excluded by Crown counsel in the exercise of the Crown's discretion, which is reviewable by the trial judge.
Satisfaction of the obligation to disclosure must be read in context and does not have to be "perfect."<ref>
{{CanLIIRP|Dunn|27nmb|2009 CanLII 75397 (ON SC)|[2009] OJ No 5749}}{{perONSC|Boswell J}} ("Disclosure must be considered within this context. It does not have to be perfect, but it does have to be fundamentally fair and sufficient to allow an accused to exercise his or her constitutional right to make full answer and defence.")<br>
{{CanLIIRP|Eddy|g68wf|2014 ABQB 164 (CanLII)|583 AR 217}}{{perABQB|Acton J}}{{atL|g68wf|177}}<br>
</ref>
; Identity of Crown
In the context of all first party or Stinchcombe disclosure issues, the term "Crown" refers only to the "prosecuting crown" and not all crown entities including police. All  Crown entities other than the "prosecuting crown" are considered "third-parties".
<ref>
{{supra1|Elkins}}{{atL|gxjv3|27}}<br>
{{CanLIIRP|Jackson|gmblf|2015 ONCA 832 (CanLII)|332 CCC (3d) 466}}{{perONCA-H|Watt JA}}{{atL|gmblf|80}}<br>
{{supra1|Quesnelle}}{{atL|g7xds|11}}<br>
{{supra1|McNeil}}{{atL|2254d|22}}<br>
</ref>
; Disclosure to Crown
The obligations upon the Crown are not reciprocal and there is no obligations upon the defence to disclose anything prior to trial.<ref>
{{CanLIIRx|Mitchell|hqcp0|2018 BCCA 52 (CanLII)}}{{perBCCA|Fisher JA}}{{atL|hqcp0|51}}<br>
</ref>
{{reflist|2}}
===Preservation of Evidence===
Stinchcombe obligation also requires the Crown to preserve all relevant evidence.<ref>
{{CanLIIRP|La|1fr18|1997 CanLII 309 (SCC)|[1997] 2 SCR 680}}{{perSCC-H|Sopinka J}}{{atL|1fr18|17}}<br>
{{CanLIIRP|FCB|1zrpp|2000 NSCA 35 (CanLII)|142 CCC (3d) 540}}{{perNSCA|Roscoe JA}} (3:0){{atL|1zrpp|10}}</ref>
At common law, there is a principle of “Omnia praesumuntur contra spoliatorem” that suggests that a party who destroys documents must rebut the presumption that the documents were unfavourable to their case.
{{reflist|2}}
===Sufficiency for Election and Plea===
Initial disclosure should be provided before the accused should be required to make election and plea.<ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|Sopinka J}} (7:0){{atps|342-3}}<br>
{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (SCC)|[1993] 2 SCR 451}}{{perSCC-H|Sopinka J}} (5:0){{atsL|1fs37|19| to 20}}<br>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0), ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure. However, as is recognized in {{supra1|Stinchcombe}}{{atp|343}} [SCR]{{atp|221}} [CRR]{{atp|14}} [CCC], the Crown will often be unable to make complete disclosure at the initial stage of the disclosure process")<br>
{{CanLIIRP|NNM|1n6mj|2006 CanLII 14957 (ON CA)|209 CCC (3d) 436}}{{perONCA|Juriansz JA}} (3:0){{atL|1n6mj|37}} ("Even when the Crown has clearly failed to make mandated disclosure, the defence is not necessarily entitled to refuse to proceed to the next step or to set a date for trial.  .”")<br>
{{CanLIIRP|Kovacs-Tator|1j99g|2004 CanLII 42923 (ON CA)|192 CCC (3d) 91}}{{TheCourtONCA}} (3:0){{atL|1j99g|47}} (Ont. C.A.) ("the Crown is not obliged to disclose every last bit of evidence before a trial date is set")<br>
</ref>
This is so that the accused can make an informed decision at "all fundamental steps that affect his rights in a crucial way."<ref>
{{supra1|Egger}}{{atsL|1fs37|19| to 20}}<br>
{{CanLIIRP|Lahiry|fntws|2011 ONSC 6780 (CanLII)|283 CCC (3d) 525}}{{perONSC|Code J}}{{atL|fntws|114}} ("It is only when the missing disclosure is truly material to "crucial steps" in the process, like election and plea, that it will justify delay at these early stages.")<br>
</ref>
Many tactical factors can come into play that would influence the choice of manner of trial.<ref>
e.g. {{CanLIIRP|Black|6g7v|1998 CanLII 5042 (NS SC)|515 APR 297}}{{perNSSC|Saunders J}}- judge lists tactical factors that come into play in making election<br>
</ref>
{{reflist|2}}
===Delaying and Withholding Disclosure===
The entitlement to disclosure "is neither absolute or unlimited."<ref>
{{CanLIIRP|Basi|26mxq|2009 SCC 52 (CanLII)|[2009] 3 SCR 389}}{{perSCC-H|Fish J}} (7:0){{atL|26mxq|1}}<br>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC|Charron J}} (8:0){{atL|2254d|18}} <br>
</ref>
Where disclosure is delayed or withheld is it the burden of the Crown to justify it.<ref>
{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (SCC)|[1993] 2 SCR 451}}{{perSCC-H|Sopinka J}} (5:0){{atp|466}}
</ref>
; Delayed Disclosure
The Crown has a limited discretion to delay disclosure in "rare circumstances" in order "to protect the integrity of an ongoing investigation."<ref>
{{supra1|Stinchcombe}}{{atp|339}}<br>
</ref>
Or where it is necessary to protect the safety of certain witnesses.<ref>
{{CanLIIRP|Vokey|fsxmg|1992 CanLII 7089 (NL CA)|72 CCC (3d) 97}}{{perNLCA|Goodridge CJ}}
</ref>
The Crown also has discretion to determine the most effective manner in which to produce disclosure.<ref>
{{supra1|Stinchcombe}}{{atp|339}}<br>
{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (SCC)|[1995] 1 SCR 727}}{{perSCC-H|Sopinka J}} (9:0){{atL|1frl0|21}}<br>
{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (SCC)|[1993] 2 SCR 451}}{{perSCC-H|Sopinka J}} (5:0)<br>
{{CanLIIRP|Durette|1frv9|1994 CanLII 123 (SCC)|[1994] 1 SCR 469}}{{perSCC-H|Sopinka J}} (4:3)<br>
</ref>
A great amount of deference should be given to the manner and timing of disclosure.<ref>
{{supra1|Stinchcombe}}{{atp|340}}<br>
</ref>
The defence's choice to have a preliminary inquiry before setting a matter for trial cannot be used as an excuse for delay of disclosure.<ref>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0)
</ref>
; Withheld Disclosure
The most obvious reasons for withholding disclosure in where it is (1) "clearly irrelevant"; (2) the information was privileged; (3) disclosure of the information was governed by law; and (4) premature disclosure may result in harm to an individual or public interest.<ref>
{{supra1|McNeil}}
</ref>
Where any disclosure is withheld, the Crown must make it know that they are in possession of those records.<ref>
{{CanLIIRP|Piaskowski|1r2nz|2007 MBQB 68 (CanLII)|213 Man R (2d) 283}}{{perMBQB|Sinclair J}}{{atL|1r2nz|84}} ("The Crown’s disclosure obligation requires that it must make known to an accused all relevant materials in its possession or under its control.")
</ref>
{{reflist|2}}
==When the Obligations Exist==
The Crown will only be subject to disclosure obligation where there is evidence in its possession or control ''and'' is sufficiently relevant. This is will only apply once the defence seeks to exercise its right to disclosure.
Information in possession of the government but not discovered in the course of the investigation is ''not'' governed by Stinchcombe.
<ref>
{{CanLIIRx|Elkins|gxjv3|2017 BCSC 245 (CanLII)}}{{perBCSC|Sewell J}}{{atL|gxjv3|24}}<br>
</ref>
Stincombe will generally  only apply to the "fruits of the investigation."<ref>
{{ibid1|Elkins}}{{atL|gxjv3|25}}<br>
</ref>
The exception to this exists for records in the possession or control of Crown that is "obviously relevant" to the accused's case.<ref>
{{CanLIIRx|Pascal|j6xcn|2020 ONCA 287 (CanLII)}}{{atL|j6xcn|106}} ("However, the police obligation of disclosure to the prosecuting Crown extends beyond the “fruits of the investigation”. The police should also disclose to the prosecuting Crown any additional information that are “obviously relevant” to the accused’s case. This “obviously relevant” information is not within the investigative files, but must be “disclosed under Stinchcombe because it relates to the accused’s ability to meet the Crown’s case, raise a defence, or otherwise consider the conduct of the defence”: Gubbins, at para. 23.")<br>
{{CanLIIRP|Gubbins|hvqb7|2018 SCC 44 (CanLII)|[2018] 3 SCR 35}}{{perSCC|Rowe J}}
</ref> The meaning of "obviously relevant" does not create a new standard of relevance, but applies the normal standard of relevance. However, the certainty to which it would go to full answer and defence is beyond merely "likely" and is something where the use if "easily seen or understood."<Ref>
{{CanLIIRx|Sandhu|j94nx|2020 ABQB 459 (CanLII)}}{{perABQB|Achkerl J}}{{atL|j94nx|36}}
</ref>
{{reflist|2}}
===Defence Engaging Disclosure Obligations===
The initial burden rests on the defence to invoke their right to disclosure.<Ref>
R v Atwell, 2022 NSSC 304 at para 10 ("Mr. Dennis has a right to disclosure of possibly relevant information. However, it is a right that must be asserted...")<br>
{{CanLIIR|Eadie|2cl9j|2010 ONCJ 403 (CanLII)}}{{perONCJ|Keast J}}{{AtL|2cl9j|42}}
</ref>
The right to disclosure is triggered once defence counsel requests it.<ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|Sopinka J}} (7:0),{{atp|342}} ("The obligation to disclose will be triggered by a request by or on behalf of the accused.  Such a request may be made at any time after the charge.")<br>
{{CanLIIRP|O'Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411}}{{perSCC|Lamer CJ and Sopinka J}} (dissenting on other issues){{atL|1frdh|5}} ("The Crown's duty to disclose information in its possession is triggered when a request for disclosure is made by the accused")<br>
{{CanLIIRP|Anderson|g0hcq|2013 SKCA 92 (CanLII)|300 CCC (3d) 296}}{{perSKCA|Ottenbreit JA}} (3:0){{atL|g0hcq|17}} ("The obligation to disclose will be triggered by a request by or on behalf of the accused")<br>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0), ("The Crown's obligation to disclose is triggered by a request for disclosure from counsel for an accused.")<br>
</ref>
After that the burden moves to Crown to disclose all Stinchcombe relevant materials.<REf>
{{supra1|Atwell}} at para 10 ("Once a request is made the onus shifts to the Crown to comply with the request")<Br>
{{{supra1|Eadie}} at para 44
</ref>
The obligation will exist for all evidence for which there is a "reasonable possibility" that the evidence will used in making full answer and defence.<ref>
{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (SCC)|[1995] 1 SCR 727}}{{perSCC-H|Sopinka J}} (9:0){{atsL|1frl0|26| to 27}} ("The Crown's disclosure obligations are triggered when there is a ''reasonable possibility'' the evidence will be useful to the accused in making full answer and defence.")<br>
see also {{CanLIIRP|Taillefer|1g992|2003 SCC 70 (CanLII)|[2003] 3 SCR 307}}{{perSCC|LeBel J}} (9:0){{atL|1g992|61}}<br>
</ref>
The duty to disclose is engaged once the accused requests information from the crown any time after the charge has been laid. <ref>
{{supra1|Stinchcombe #1}}{{Atp|342}}</ref>
If the defence fails to raise the issue and remains passive, they are less able to claim that non-disclosure affected trial fairness.<ref>
{{CanLIIRP|Dixon|1fqvj|1998 CanLII 805 (SCC)|[1998] 1 SCR 244}}{{perSCC|Cory J}} (5:0){{atL|1fqvj|38}} ("Whether a new trial should be ordered on the basis that the Crown’s non‑disclosure rendered the trial process unfair involves a process of weighing and balancing.  If defence counsel knew or ought to have known on the basis of other disclosures that the Crown through inadvertence had failed to disclose information yet remained passive as a result of a tactical decision or lack of due diligence it would be difficult to accept a submission that the failure to disclose affected the fairness of the trial.  ...")</ref>
; Duty of Diligence
The defence has an obligation to diligently pursue disclosure by actively seeking and pursuing disclosure once they become aware or ought to have been aware of it.<ref>
{{supra1|Stinchcombe #1}}{{atp|341}}<br>
{{supra1|Dixon}}{{atL|1fqvj|37}} ("In considering the overall fairness of the trial process, defence counsel’s diligence in pursuing disclosure from the Crown must be taken into account.  A lack of due diligence is a significant factor in determining whether the Crown’s non‑disclosure affected the fairness of the trial process. ... The fair and efficient functioning of the criminal justice system requires that defence counsel exercise due diligence in actively seeking and pursuing Crown disclosure.  The very nature of the disclosure process makes it prone to human error and vulnerable to attack.  As officers of the court, defence counsel have an obligation to pursue disclosure diligently.  When counsel becomes or ought to become aware, from other relevant material produced by the Crown, of a failure to disclose further material, counsel must not remain passive.  Rather, they must diligently pursue disclosure.")</ref>
This means the defence should bring any failure to disclose to the Court's attention at the earliest opportunity so that the judge can remedy any trial unfairness.<ref>
{{supra1|Stinchcombe}} at 341</ref>
The defence should review the disclosure and identify anything missing as soon as possible.<ref>
{{CanLIIRx|Barbour|h4t69|2017 ABCA 231 (CanLII)}}{{TheCourt}}{{atL|h4t69|32}} ("Once disclosure is obtained, the accused has an obligation to review that disclosure, and identify anything that appears to be missing. The defence must 'exercise due diligence in actively seeking and pursuing Crown disclosure'")<br>
{{supra1|Dixon}}{{atL|1fqvj|37}}<br>
{{supra1|Stinchcombe}}{{atp|341}}<br>
</ref>
The defence cannot claim a lack of disclosure affected trial fairness when they remain passive a tactical decision or due to lack of diligence.<ref>
{{supra1|Dixon}}{{atL|1fqvj|38}}<br>
{{supra1|Barbour}}{{atL|h4t69|32}} ("If the Crown disclosure, or the facts of the case, make it apparent that third parties may have records that will assist in making answer and defence, the accused must act diligently in obtaining that information or in bringing an O’Connor application. The court will not be sympathetic where a tactical decision was made not to pursue known documents")<br>
</ref>
A failure to read the disclosure and discover defects cannot be used to support a finding that there was a Crown breach of the duty to disclose.<ref>
{{supra1|Barbour}}{{atL|h4t69|32}}
</ref>
; Fishing Expeditions
The defence should not engage in disclosure requests that amount to mere "fishing expeditions" as they tend to "undermine the good faith and candour which should govern the conduct of counsel."<ref>
{{supra1|Girimonte}}<br>
</ref>
; Duty When Full Disclosure Not Provided
Where there is specific evidence that was not disclosed, the defence has the obligation to particularize the evidence that they are seeking.<ref>
{{supra1|Atwell}} at para 10 ("The onus is on the defence to particularize any further disclosure requests")<br>
{{{supra1|Eadie}}
</ref>
The process is an "entwined in a mutual, continuous and reciprocal process" where both parties are obligated to cooperate in a reasonable and timely manner.<ref>
{{supra1|Atwell}} at para 11 <br>
{{{supra1|Eadie}}{{AtL|2cl9j|48}} ("It is clear, as a matter of law, the Crown and defence are entwined in a mutual, continuous and reciprocal process, wherein they each have a duty to reasonably and timely co-operate in the disclosure process.")
</ref>
The duty of defence to cooperate flows from the obligation to avoid delay.<Ref>
{{supra1|Atwell}} at para 11<Br>
</ref>
{{Reflist|2}}
===Burden===
Once the right to disclosure has been invoked by the Defence the onus is upon the Crown to comply with the obligation. The Crown may refuse to disclose certain information, but has the burden of proving why full disclosure should not be applied.<ref>
{{CanLIIRP|Durette|1frv9|1994 CanLII 123 (SCC)|88 CCC (3d) 1}}{{perSCC-H|Sopinka J}}{{atL|1frv9|44}}<br>
In contrast, if the disclosure is third-party records, the burden is upon the accused.</ref>
; Bases for Refusing Disclosure
The information will not be considered disclosure where it is:
<ref>
{{supra1|Chaplin}}{{atL|1frl0|25}} (The Crown "must justify non-disclosure by demonstrating either that the information sought is beyond its control, or that it is clearly irrelevant or privileged")<br>
see also {{CanLIIRP|Bottineau|232gk|2005 CanLII 63780 (ON SC)|[2005] OJ No 4034}}{{perONSC|Watt J}}{{atL|232gk|45}}</ref>
# Irrelevant
# Not in the control of the Crown
# Privileged
# Barred by statute
Satisfying any one of these requirements will eliminate any disclosure obligations upon the Crown. The Crown may then refuse the request.<ref>
{{supra1|Stinchcombe}}{{atp|339}}<br>
{{supra1|Stinchcombe #2}}{{atp|755}}<br>
</ref>
; Standard of Proof
The grounds to disclose must be established on a balance of probabilities.<ref>
{{CanLIIRP|Dixon|1fqvj|1998 CanLII 805 (SCC)|[1998] 1 SCR 244}}{{perSCC|Cory J}} (5:0) {{atL|1fqvj|32}}
</ref>
; Crown Disputing Relevance
If the crown disputes the existence of any particular material, the applicant "must establish the basis that could enable to court to conclude that further material exists that is potentially relevant. The existence of the disputed material must be sufficiently identified, not only to reveal its nature but also to permit the court to conclude that it made meet the test required for prosecutorial disclosure."<ref>
{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (SCC)|[1995] 1 SCR 727}}{{perSCC-H|Sopinka J}} (9:0){{atsL|1frl0|30| to 33}}
</ref>
The Crown must satisfy the court that the evidence sought is "clearly irrelevant."<ref>
{{CanLIIRP|Gubbins|hvqb7|2018 SCC 44 (CanLII)|[2018] 3 SCR 35}}{{perSCC|Rowe J}} (8:1){{atL|hvqb7|29}}<br>
{{CanLIIRP|Stipo|hwtx4|2019 ONCA 3 (CanLII)|370 CCC (3d) 311}}{{perONCA-H|Watt JA}}{{atL|hwtx4|79}}<br>
In comparison the standard for third party disclosure is "likely relevant" (see Stipo{{atL|hwtx4|80}})<br>
</ref>
{{reflist|2}}
===Possession or Control===
{{seealso|Disclosure of Third Party Records}}
Just because a record is in the possession of a Crown entity, does not amount to possession or control.<ref>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC-H|Charron J}} (8:0)<br>
{{CanLIIRP|Oleksiuk|g1qr6|2013 ONSC 5258 (CanLII)|55 MVR (6th) 107}}{{perONSC|James J}}{{atL|g1qr6|26}}<br>
</ref>
The  law cannot impose an obligation of the crown in relation to materials that "does not have or cannot obtain".
<ref>
{{CanLIIRx|Elkins|gxjv3|2017 BCSC 245 (CanLII)}}{{perBCSC|Sewell J}}{{atL|gxjv3|25}}<br>
{{supra1|McNeil}}{{atL|2254d|22}}<br>
</ref>
Where evidence is not in the control of the Crown it may be the subject of a common law third party records application, also known as an "O'Connor Application."<ref>
{{CanLIIRP|O’Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411 (SCC)}}{{perSCC|L'Heureux‑Dubé J}}<br>
{{supra1|McNeil}}</ref>
In an ''O'Connor'' application, the Defence must show that the evidence is "likely relevant."<ref>
{{supra1|O'Connor}}</ref>
The prosecuting Crown has an obligation to "make reasonable inquiries of other Crown entities and other third parties" of whether they may be in possession of relevant evidence.<ref>
{{supra1|McNeil}}{{AtsL|2254d|13|}}, {{atsL-np|2254d|49|}}<br>
</ref>
{{reflist|2}}
===Relevance===
{{seealso|Right to Make Full Answer and Defence}}
Not all information in possession of police must be disclosed. It must only be "relevant" evidence.<ref>
{{CanLIIRP|Banford|fnr45|2011 SKQB 418 (CanLII)|[2012] 3 WWR 835}}{{perSKQB|McLellan J}}{{AtL|fnr45|5}} citing Stinchcombe, among others</ref>
The "threshold question in any instance of non-disclosure is whether the evidence was relevant"<ref>
{{CanLIIRP|Banford|2c4sk|2010 SKPC 110 (CanLII)|363 Sask R 26 (SKPC)}}{{perSKPC|Toth J}}{{atL|2c4sk|13}}
</ref>
The threshold of relevancy is quite low. The relevancy exists where there is "a reasonable possibility of the information being useful to the accused in making full answer and defence."<ref>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC-H|Charron J}} (8:0){{AtL|2254d|14}} (includes “any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.”)<br>
{{CanLIIRP|Taillefer|1g992|2003 SCC 70 (CanLII)|[2003] 3 SCR 307}}{{perSCC|LeBel J}} (9:0){{atL|1g992|60}}<br>
{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (SCC)|96 CCC (3d) 225}}{{perSCC-H|Sopinka J}} (9:0){{atp|236}}<br>
{{CanLIIRP|Dixon|1fqvj|1998 CanLII 805 (SCC)|(1998) 1 SCR 244}}{{perSCC|Cory J}} (5:0){{atsL|1fqvj|20| to 22}}<br>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0){{atps|41 to 42}} (information is relevant if "there is a reasonable possibility that withholding the information will impair the accused's right to make full answer and defence.")<br>
{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (SCC)|[1993] 2 SCR 451}}{{perSCC-H|Sopinka J}} (5:0){{atp|467}}<br>
{{CanLIIRP|Banford|fnr45|2011 SKQB 418 (CanLII)|386 Sask R 141}}{{perSKQB|McLellan J}}{{atL|fnr45|5}}<br>
</ref>
Full answer and defence is engaged where the evidence can be used:<ref>
{{supra1|Egger}}{{atp|467}}<br>
{{supra1|Dixon}}{{atsL|1fqvj|20| to 22}}<br>
{{CanLIIRP|Anderson|g0hcq|2013 SKCA 92 (CanLII)|300 CCC (3d) 296}}{{perSKCA|Ottenbreit JA}} (3:0)
</ref>
# in meeting the Crown's case;
# "advancing a defence";
# "otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence".
The scope of relevancy is "broad" and will include materials that "may have only marginal value to the ultimate issues at trial."<ref>
{{supra1|Dixon}}{{atL|1fqvj|23}}<br>
</ref>
The Crown "must err on the side of inclusion" when deciding whether to include the materials in disclosure.<ref>
{{supra1|Chaplin}}
</ref>
Relevance is not limited solely to inculpatory evidence nor only evidence that the Crown would adduce at trial. "Relevant materials" includes all materials for which there is a "reasonable possibility" that it may be useful for the defence. All possible exculpatory evidence must be provided as well, however, this obligation does not extend to a duty to examine the exculpatory evidence.<ref>
{{CanLIIRP|Daley|1zkbl|2008 BCCA 257 (CanLII)|[2008] BCJ No 1341}}{{perBCCA|Lowry JA}}{{atsL|1zkbl|13| to 15}} and by the Ontario Court of Appeal in {{CanLIIRP|Darwish|2843v|2010 ONCA 124 (CanLII)|252 CCC (3d) 1}}{{perONCA-H|Doherty JA}} (3:0)<br>, 252 CCC (3d) 1{{atsL|2843v|28| to 30}} and {{AtsL-np|2843v|39| to 40}} leave to SCC denied</ref>
Relevance can be related to the usefulness for defence as far as decisions on conducting the defence including whether to call evidence.<ref>
{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (SCC)|[1993] 2 SCR 451}}{{perSCC-H|Sopinka J}} (5:0){{atp|467}} ("if it is of some use, it is relevant and should be disclosed ...This requires a determination by the reviewing judge that production of the information can reasonably be used by the accused either in meeting the case for the Crown, advancing a defence or otherwise in making a decision which may affect the conduct of the defence such as, for example, whether to call evidence.")</ref>
Relevant evidence is not limited to admissible evidence and can include that evidence which is not inadmissible at trial.<ref>
{{CanLIIRP|Barbosa|1wctb|1994 CanLII 7549 (ON SC)|92 CCC (3d) 131}}{{perONSC|Hill J}}{{atp|140}}<br>
{{CanLIIRP|Derose|5r17|2000 ABPC 67 (CanLII)|264 AR 359}}{{perABPC|Allen J}}<br>
</ref>
; Limitations on Relevance
Relevancy however can be limited by the need for a "realistic standard of disclosure consistent with fundamental fairness."<ref>
{{supra1|O'Connor}}{{atL|1frdh|194}}<br>
</ref>
It must still permit the sustem to be "workable, affordable and expeditious". It should not be so broad as to include "anything that might conceivably be used in cross-examination."<ref>
{{supra1|O'Connor}}{{atL|1frdh|194}}<br>
</ref>
It is not meant to include "every scintilla of information" that may have utility to the defence.<ref>
{{supra1|O'Connor}}{{atL|1frdh|194}}<br>
</ref>
There is some authority to suggest that when the relevancy only relates to a voir dire on admissibility of evidence, and not the trial itself, the burden is upon the accused.<ref>
{{CanLIIR-N|Ahmed|, 2012 ONSC 4893}} - disclosure of source handler notes<br>
{{CanLIIRP|Cater|fnvz4|2011 NSPC 86 (CanLII)|985 APR 46}}{{perNSPC|Derrick J}}{{atL|fnvz4|26}}<br>
</ref>
; Refusal to disclose clearly irrelevant disclosure
The burden is upon the Crown to prove that the information was "clearly irrelevant."<ref>
{{CanLIIRP|Stinchcombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326 (SCC)}}{{perSCC-H|Sopinka J}} (7:0)<br>
{{CanLIIR-N|Pena|, 1996 CarswellBC 2885}}{{at-|17}}
</ref>
Refusal to disclose is reviewable by the trial judge.<ref>
{{supra1|Stinchcombe}}{{atp|12}}</ref>
{{reflist|2}}
===Privilege===
{{seealso|Privilege}}
Privileged materials can take many forms:<ref>e.g. {{CanLIIRP|Eddy|g68wf|2014 ABQB 164 (CanLII)|583 AR 217}}{{perABQB|Acton J}}{{atL|g68wf|23}}<br></ref>
# protection of persons from harassment or injury<ref>see {{supra1|Stinchcombe #1}}{{Atp|336}}</ref>
# protect informer privilege <ref>see {{supra1|Stinchcombe #1}}{{Atp|336}}</ref>
# protect confidential investigative techniques <ref>{{CanLIIRP|Richards|6h8f|1997 CanLII 3364 (ON CA)|115 CCC (3d) 377}}{{TheCourtONCA}} </ref>
# protection of confidential information while an investigation is ongoing <ref>
{{CanLIIRP|Egger|1fs37|1993 CanLII 98 (SCC)|[1993] 2 SCR 451}}{{perSCC-H|Sopinka J}} (5:0)</ref>
# [[Litigation Privilege]], Crown work-product privilege
# statutory privilege such as under the Code and CEA
Any materials in control of the Crown that is claimed to be privileged cannot be compelled to disclose to either the defence or the court unless there are proper grounds.
<ref>
{{CanLIIRP|Polo|1k3fk|2005 ABQB 250 (CanLII)|195 CCC (3d) 412}}{{perABQB|Clackson J}}{{atL|1k3fk|27}}<br>
{{CanLIIRP|McClure|5228|2001 SCC 14 (CanLII)|[2001] 1 SCR 445}}{{perSCC-H|Major J}} (9:0){{atL|5228|27}}<br>
</ref>
The McClure threshold test determines the grounds which requires the materials could raise a reasonable doubt of guilt.<ref>
{{supra1|McClure}}{{atL|5228|27}}</ref>
The threshold test requires:<ref>
{{supra1|Polo}}{{atL|1k3fk|15}}</ref>
# there be no other source of the information sought;
# the accused cannot raise a reasonable doubt in any other way.
Materials that "may put at risk the security and safety of persons who have provided prosecution with information" is protected by informer privilege.<ref>
{{CanLIIRP|Stinchombe|1fsgp|1991 CanLII 45 (SCC)|[1991] 3 SCR 326}}{{perSCC-H|Sopinka J}} (7:0){{atL|1fsgp|16}}<br>
</ref>
Where the materials are privileged there is no need to address threshold relevance.<ref>
{{CanLIIRP|Leipert|1fr41|1997 CanLII 367 (SCC)|[1997] 1 SCR 281}}{{perSCC-H|McLachlin J}} (9:0){{atL|1fr41|36}}<br>
</ref>
; Burden
Where the defence seek disclosure of claimed privileged materials, "the accused has the burden of demonstrating ''why'' privilege is wrongly claimed."<ref>
{{CanLIIRP|Eddy|g68wf|2014 ABQB 164 (CanLII)|583 AR 217}}{{perABQB|Acton J}}{{atL|g68wf|92}}<br>
See also {{CanLIIRP|Polo|1k3fk|2005 ABQB 250 (CanLII)|195 CCC (3d) 412}}{{perABQB|Clackson J}}<br>
</ref>
; Crown Counsel's Notes
Where the interview of Crown witnesses discloses new information to the Crown or police, any notes of counsel may be subject to disclosure.<ref>
{{CanLIIR-N|Reagan|, [1991] N.S.J. No 482}}<br>
{{CanLIIR-N|Ladouceur| (1992), B.C.J. No 2854 (S.C.)}}<br>
{{CanLIIRP|O'Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411, 103 CCC (3d) 1}}{{perSCC| L'Heureux‑Dubé J}}<br>
</ref>
{{reflist|2}}
==Duration of the Obligation==
The obligation to provide disclosure only begins once charges have been laid. There is no right prior to that.<ref>
{{CanLIIRP|Gillis|2dbqj|1994 ABCA 212 (CanLII)|91 CCC (3d) 575}}{{perABCA|Fraser CJ}} (3:0){{AtL|2dbqj|7}}<br>
</ref>
The duty is engaged upon the request of the accused. It is continuous throughout the proceedings up to and including the trial. The Crown may object to the request on the basis that it is irrelevant, outside of their control, or otherwise privileged.<ref>
{{CanLIIRP|Chaplin|1frl0|1995 CanLII 126 (SCC)|[1995] 1 SCR 727}}{{perSCC-H|Sopinka J}} (9:0)</ref>
The burden is on the Crown to justify the refusal to disclose.
The duty to disclose is ongoing and so any new information received must also be disclosed.<ref>
{{supra1|Stinchcombe #1}}{{Atp|343}}</ref>
Once the Crown alleges that it has fulfilled the disclosure obligation it has no obligation to justify the "non disclosure of materials the existence of which it is unaware or denies." Unless the applicant is able to "establish a basis  which could enable the presiding judge to conclude that there is in existence further material which is potentially relevant...."<ref>
{{supra1|Chaplin}}{{atp|743}}<br>
</ref>
{{reflist|2}}
===After Verdict===
:''[[Appeals#Fresh Evidence|Fresh Evidence]]''
The right to disclosure may not extend to the into a conditional sentence breach hearing as there is less of a right to full answer and defence.<ref>
{{CanLIIRP|Sitaram|fl4r3|2011 ONCJ 199 (CanLII)|277 CCC (3d) 421}}{{perONCJ|Nakatsuru J}}
</ref>
The obligation to disclose remains in effect through the appellate process.<ref>
{{CanLIIRP|Trotta|1v6pb|2004 CanLII 60014 (ON CA)|23 CR (6th) 261}}{{perONCA-H|Doherty JA}} (3:0)<br>
{{CanLIIRx|Meer|ghlc8|2015 ABCA 163 (CanLII)}}{{perABCA|Veldhuis JA}} (alone)<br>
</ref>
This obligation covers any materials in the possession of the crown that "may reasonably assist the appellant in the prosecution of his or her appeal, subject to any privilege or overriding third-party privacy interest."<ref>
{{supra1|Trotta}}{{atL|1v6pb|25}}<br>
{{supra1|Meer}}{{AtL|ghlc8|8}}<br>
{{CanLIIRx|Johnston|hznmd|2019 BCCA 107 (CanLII)}}{{atsL|hznmd|56| to 61}}<br>
</ref>
There are some "reasonable parameters" around disclosure post-conviction. The court must be mindful that the "justice system does not become disproportionately overburdened" and cause delay in addressing the "more important issues."<ref>
{{supra1|hznmd|Johnston}}{{atL|hznmd|64}}
</ref>
Where in applicant seeks further disclosure on appeal to support a fresh evidence application, he must establish that:<ref>
{{supra1|Trotta}}{{atL|1v6pb|23}}<br>{{supra1|Meer}}{{AtL|ghlc8|9}}</ref>
* There is a connection between "the request for production and the fresh evidence proposed, or in other words the applicant must show that there is a reasonable possibility that the material sought could assist on the application for fresh evidence"
* There is some reasonable possibility that the evidence to which the production request is linked may be received as fresh evidence on appeal.
{{reflist|2}}
==Timing of Disclosure==
:''see also: Delayed Disclosure, above''
Conceptually, Disclosure can be divided into three phases:<ref>
{{CanLIIRx|Valdirez-Ahumada|1dh3t|1992 CanLII 875 (BC SC)}}{{perBCSC|''unknown'' J}}
</ref>
# "Initial disclosure": evidence required before there can be an election of mode of trial;<ref>
See also {{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0) ("Initial disclosure must occur sufficiently before the accused is called upon to elect or plead so as to permit the accused to make an informed decision as to the mode of trial and the appropriate plea. In a perfect world, initial disclosure would also be complete disclosure.")</ref>
# "Intermediate disclosure": evidence required before a plea is entered; and
# "Final disclosure": all Disclosure must be provided prior to trial.
It is not always necessary to provide full disclosure prior to a preliminary inquiry as long as full disclosure is made early enough before trial so as not to violate the right to full answer and defence.<ref>
{{CanLIIRP|Nova Scotia Pharmaceutical Society|1tgkg|1992 CanLII 4513 (NS SC)|320 APR 431}}{{perNSSC|A Boudreau J}}<br>
{{CanLIIRP|Biscette|2dc3z|1995 ABCA 234 (CanLII)|99 CCC (3d) 326}}{{perABCA|Côté JA}} (2:1)<br>
{{CanLIIRP|Adam|1mt4b|2006 BCSC 350 (CanLII)|70 WCB (2d) 1008}}{{perBCSC|Romilly J}}
</ref>
Where sufficient but incomplete evidence is disclosed, the defence are not entitled "to refuse to proceed to the next step or to set a date for trial."<ref>
{{CanLIIRP|NNM|1n6mj|2006 CanLII 14957 (ON CA)|209 CCC (3d) 436}}{{perONCA|Juriansz JA}} (3:0)
</ref>
; Consequence of Late Disclosure
Where the late disclosure does not amount to a Charter breach that would require a stay of proceedings, the judge can consider a mistrial, a refusal to admit the evidence or an adjournment.<ref>
{{CanLIIRP|Barrette|1z6cp|1976 CanLII 180 (SCC)|29 CCC (2d) 189}}{{perSCC|Pigeon J}}<br>
{{CanLIIRP|Davis|27pv9|1998 CanLII 18030 (NL CA)|159 Nfld & PEIR 273 (NLCA)}}{{perNLCA|Green JA}}<br>
</ref>
; Witnesses Changing Evidence
Where the Crown learns of a recanting witness and provides immediate notice to the defence counsel on the night before the witness is to testify, it does not violate the right to full answer and defence.<ref>
{{CanLIIRP|Buric|6jf5|1996 CanLII 1525 (ON CA)|106 CCC (3d) 97}}{{perONCA|Labrosse JA}} (2:1)
</ref>
{{reflist|2}}
==Sufficiency of Existing Disclosure==
It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate.<ref>
see below regarding "Where the Obligation Does Not Exist"
</ref>
; Experts
See [[Expert Evidence#Notice to Call Expert Evidence]] for details on sufficiency of disclosure summarizing the expert's evidence. A failure to provide sufficient disclosure in relation to the experts could result in a mistrial.<ref>
e.g. {{CanLIIRx|BB|gvnpd|2016 ABQB 647 (CanLII)}}{{perABQB|Pentelechuk J}} - motion for mistrial denied<br>
{{CanLIIRP|LAT|1npp1|1993 CanLII 3382 (ON CA)|84 CCC (3d) 90}}{{perONCA|Lacourcière JA}} (3:0) - new trial ordered for calling rebuttal witness without sufficient disclosure of rebuttal witness.
</ref>
{{reflist|2}}
==Duty to Inquire and Obtain Disclosure ("McNeil" Obligations)==
{{seealso|Disclosure of Third Party Records}}
In "appropriate cases", the Crown has an obligation "to make reasonable inquiries" with third-party state authorities who are believed to be in possession of threshold relevant materials and it would be "reasonably feasible to do so."<ref>
{{CanLIIRP|McNeil|2254d|2009 SCC 3 (CanLII)|[2009] 1 SCR 66}}{{perSCC-H|Charron J}} (8:0){{atL|2254d|13}} and {{AtL-np|2254d|49}}<Br>
{{CanLIIRP|Ahluwalia|1fbj5|2000 CanLII 17011 (ON CA)|149 CCC (3d) 193, 138 OAC 154 (CA)}}{{perONCA-H|Doherty JA}}{{AtsL|1fbj5|71| to 72}}<Br>
</ref>
This duty may also extend to making inquiries as to the existence of some fact.<ref>
e.g. {{CanLIIRx|Esseghaier|jdpfz|2021 ONCA 162 (CanLII)}}{{TheCourtONCA}}{{AtL|jdpfz|27}}
</ref>
For the purpose of first-party disclosure obligations, the "Crown" refers to the "prosecuting Crown" only.<ref>
{{CanLIIRP|Quesnelle|g7xds|2014 SCC 46 (CanLII)|[2014] 2 SCR 390}}{{perSCC|Karakatsanis J}} (7:0)<br>
{{supra1|McNeil}}
</ref>
It is not a valid argument to simply assert that the inquiry should be made because it is "easy."<ref>
{{CanLIIRx|Woods|gg6pq|2015 ABPC 23 (CanLII)}}{{perABPC|Lepp J}}{{atL|gg6pq|31}} ("it is important to remember that the accused does not overcome the hurdle of providing evidence that the information sought actually exists and is relevant by showing only that the inquiry is easy to make.  If it were otherwise, “easy inquiries” would quickly become the equivalent of first party disclosure and the authorities would suffer death by a thousand cuts.")
</ref>
;Threshold relevance
Where the evidence is “obviously relevant” the Crown must disclose unprompted.<ref>
{{supra1|McNeil}}
</ref>
The test for McNeil record is “likely relevant” or “reasonably possible” relevance. <Ref>
{{supra1|McNeil}}{{atsL|2254d|43| and 44}}
</ref>
This standard includes all materials that have a "reasonable possibility" to be useful in making full answer and defence.<Ref>
{{supra1|McNeil}}{{atL|2254d|44}} ("As we have seen, likely relevance for disclosure purposes has a wide and generous connotation and includes information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence.")
</ref>
; Duty of Inquiry
Where an inquiry has failed the crown must notify the accused.<ref>
{{supra1|McNeil}}</ref>
The duty is engaged once the prosecuting Crown becomes aware of the relevancy of certain records.<ref>McNeil</ref>
; Example organizations
Relevant records held by Health Canada would be considered McNeil records that the Crown is obliged to seek out.<ref>
{{CanLIIRx|King (No. 5)|h2q8n|2017 CanLII 15296 (NLSCTD)}}{{perNLSC|Marshall J}}{{atL|h2q8n|53}}<br>
</ref>
This may include the provincial securities commission who are known to have undertaken a investigation related to the prosecution. <ref>
{{CanLIIRx|Clarke, Colpitts and Potter|g7f59|2013 NSSC 386 (CanLII)}}{{perNSSC|Hood J}}
</ref>
{{reflist|2}}
==Procedure For Enforcing Right==
Where disclosure issues arise, the court should consider the issues as follows:
<ref>
{{CanLIIRP|Ginnish|g2wkz|2014 NBCA 5 (CanLII)|1076 APR 156}}{{perNBCA|Green JA}} (3:0) {{atL|g2wkz|24}}
</ref>
# establish a violation of the right to disclosure;
# demonstrate on a balance of probabilities that the right to make full answer and defence was impaired as a result of the failure to disclose;
# discharge this burden by demonstrating that there is a reasonable possibility that the non-disclosure affected the outcome at trial or the overall fairness of the trial process.
; Jurisdiction
A preliminary inquiry judge has no jurisdiction to order the crown to provide disclosure.<ref>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0)<br>
</ref>
Only the ''trial'' judge may make an order directing the Crown to disclose information in its control.<ref>
{{CanLIIRP|SSS|1wcvn|1999 CanLII 15049 (ON SC)|136 CCC (3d) 477}}{{perONSC|Watt J}}{{atL|1wcvn|34}}<br>
</ref>
Accordingly, a provincial court judge cannot order disclosure unless the mode of trial was by provincial court judge.
A preliminary inquiry judge has no power to order disclosure and is ''not'' a "court of competent jurisdiction" to make such an order.<ref>
{{ibid1|SSS}}{{atL|1wcvn|36}}<br>
{{supra1|Girimonte}}{{atp|43}}<br>
</ref>
Where defence believe initial disclosure is insufficient for making election, the justice may adjourn the election to allow the accused to seek remedy from a superior court.<ref>
{{supra1|Girimonte}}
</ref>
Where a superior court is the trial court, it will be a "court of competent jurisdiction" under s. 24(1) of the Charter.<ref>
{{CanLIIRP|Mills|1cxmx|1986 CanLII 17 (SCC)|[1986] 1 SCR 863}}{{perSCC-H|McIntyre J}}<br>
{{CanLIIRP|Rahey|1ftp7|1987 CanLII 52 (SCC)|[1987] 1 SCR 588}}{{perSCC|Lamer J}} (superior courts have "constant, complete and concurrent jurisdiction" with respect to s. 24(1) of the Charter, even when the matter is still before an inferior court)<br>
</ref>
A superior court should generally defer motions until the matter is before the trial court rather than still with the inferior court.<ref>
{{CanLIIRP|Smith|1ft1f|1989 CanLII 12 (SCC)|[1989] 2 SCR 1120}}{{perSCC-H|Sopinka J}} (9:0)<br>
{{supra1|Rahey}}{{atL|1ftp7|16}} ("But it was therein emphasized that the superior courts should decline to exercise this discretionary jurisdiction unless, in the opinion of the superior court and given the nature of the violation or any other circumstance, it is more suited than the trial court to assess and grant the remedy that is just and appropriate.")
cf. {{CanLIIRP|Blencowe|1w4vv|1997 CanLII 12287 (ON SC)|118 CCC (3d) 529}}{{perONSC|Watt J}} - the superior court has "constant, complete and concurrent jurisdiction with the trial court for applications under Charter s. 24(1)"
</ref>
In "unusual" or "exceptional" cases a superior court justice may exercise jurisdiction under s. 24(1) of the Charter to order disclosure while the matter is still before a preliminary inquiry judge.<ref>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0) - CA dismisses appeal on disclosure order<br>
{{CanLIIRP|Mohammed|1qn5f|2007 CanLII 5151 (ON SC)|152 CRR (2d) 129}}{{perONSC|Dawson J}}{{atL|1qn5f|2}} - relates to application while matter is before preliminary inquiry judge<br>
{{CanLIIRP|Hallstone Products Inc|1wfk2|1999 CanLII 15107 (ON SC)|140 CCC (3d) 145}}{{perONSC|LaForme J}}<br>
{{CanLIIRP|Mincovitch|g194d|1992 CanLII 7585 (ON SC)|74 CCC (3d) 282}}{{perONSC|A Campbell J}}<br>
</ref>
The limited jurisdiction to order disclosure does not affect the Crown obligation to provide timely disclosure.<ref>
{{supra1|Girimonte}}
</ref>
Issues relating to the "manner of disclosure tend to fall within the category of exceptional cases."<ref>
{{supra1|Mohammed}}{{atL|1qn5f|2}}<br>
{{supra1|Hallstone}}<br>
{{supra1|Blencowe}}<br>
</ref>
; Laporte Inventory
Where there is a dispute over whether there disclosure is complete, the defence may request a "Laporte Inventory", which itemizes all records in the possession of the Crown identifying which records have been disclosed and which records are being held back.<ref>
{{CanLIIRP|Laporte|20tm0|1993 CanLII 6773 (SK CA)|113 Sask R 34 (CA)}}{{perSKCA|Sherstobitoff JA}}<br>
{{CanLIIRP|Anderson|g0hcq|2013 SKCA 92 (CanLII)|300 CCC (3d) 296}}{{perSKCA|Ottenbreit JA}} (3:0){{atL|g0hcq|10}}<br>
</ref>
{{reflist|2}}
===Crown Disclosure Decisions===
; Review of Decisions
It is the Crown's decision to determine "what material is properly subject to disclosure to the defence."<ref>
{{CanLIIRP|SSS|1wcvn|1999 CanLII 15049 (ON SC)|136 CCC (3d) 477}}{{perONSC|Watt J}}{{atL|1wcvn|33}}<br>
{{CanLIIRP|Girimonte|6hrn|1997 CanLII 1866 (ON CA)|121 CCC (3d) 33}}{{perONCA-H|Doherty JA}} (3:0){{atp|42}}<br>
</ref>
The decisions of Crown to disclosure certain information and not other is reviewable the ''trial'' judge.<ref>
{{supra1|SSS}}{{atL|1wcvn|34}}<br>
{{supra1|Girimonte}}{{atp|43}}<br>
{{CanLIIRP|Laporte|g9jq0|1993 CanLII 9145 (SK CA)|84 CCC (3d) 343}}{{perSKCA|Sherstobitoff JA}}<br>
</ref>
In exceptional circumstances any superior court of criminal jurisdiction may review the disclosure under s. 24(1) of the Charter.<ref>
{{supra1|SSS}}{{atL|1wcvn|34}}<br>
{{supra1|Stinchcombe}}{{atps|11 to 12}}<br>
{{CanLIIRP|Mohammed|1qn5f|2007 CanLII 5151 (ON SC)|152 CRR (2d) 129}}{{perONSC|Dawson J}}{{atL|1qn5f|2B}}<br>
{{CanLIIRP|Hallstone Products Inc|1wfk2|1999 CanLII 15107 (ON SC)|140 CCC (3d) 145}}{{perONSC|LaForme J}}{{atL|1wfk2|17}}<br>
{{CanLIIRP|Mincovitch|g194d|1992 CanLII 7585 (ON SC)|74 CCC (3d) 282}}{{perONSC|A Campbell J}} ("The Supreme Court of Canada and the Court of Appeal have consistently preferred the trial court to resolve Charter applications because trial courts are best suited to resolve conflicting viva voce evidence and because of the great risk of delay and fragmentation of the trial process inherent in the likelihood of interlocutory appeals.")
</ref>
Remedy for improper disclosure decisions are "largely, but not exclusively, Charter based."<ref>
{{supra1|Girimonte}}<br>
</ref>
{{reflist|2}}
==Form and Types of Disclosure==
* [[Types of Disclosable Materials]]
==Where the Obligation Does Not Exist==
It is not appropriate for the "Stinchcombe obligations" to be interpreted as creating any sort of duty investigate or defend.<ref>
{{CanLIIRP|Eddy|g68wf|2014 ABQB 164 (CanLII)|583 AR 217}}{{perABQB|Acton J}}{{atL|g68wf|137}}<br>
{{CanLIIRP|Darwish|2843v|2010 ONCA 124 (CanLII)|252 CCC (3d) 1}}{{perONCA-H|Doherty JA}} (3:0){{atsL|2843v|32| to 40}}<br>
{{CanLIIRP|Dias|2dw7f|2010 ABCA 382 (CanLII)|265 CCC (3d) 34}}{{TheCourtABCA}} (3:0){{atL|2dw7f|38}}<br>
</ref>
{{reflist|2}}
===Vetting Disclosure===
When documents are to be released for disclosure, the police and crown are permitted to vet the materials for the purpose of removing information that may not be disclosable. Types of information that can be validly redacted from the disclosure before going out to the defence include:
# clearly irrelevant information
# information tending to identify a confidential police source
# police investigative techniques
# advice that would be covered by solicitor-client privilege (either defence counsel or crown counsel)
See further details on [[Privilege]] section.
==Restricting Access to Disclosure==
* [[Limitations on Access to Disclosure]]
==Breach of Disclosure Obligation==
To engage Stinchcombe the Applicant accused has the burden of proving that there was a "reasonable possibility" that his right to make full answer and defence was impaired by the Crown's actions.<ref>
{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (SCC)|[1997] 1 SCR 80}}{{perSCC-H|Sopinka J}}
</ref>
Not every failure to comply with Stinchcombe obligations will result in a Charter breach. There will no Charter breach if the failure "could not possibly affect the reliability of the result
reached or the overall fairness of the trial process."<ref>
{{CanLIIRP|Greganti|1wcvs|2000 CanLII 22800 (ON SC)|142 CCC (3d) 77}}{{perONCJ|Stayshyn J}}
</ref>
Where relevancy is in dispute, the burden rests on the accused to prove on a balance of probabilities that breach of the Charter right to disclosure has been violated.<ref>
see {{CanLIIRP|O'Connor|1frdh|1995 CanLII 51 (SCC)|[1995] 4 SCR 411 (SCC)}}{{perSCC|L'Heureux‑Dubé J J}}<br>
{{CanLIIRP|Bjelland|24wcw|2009 SCC 38 (CanLII)|[2009] 2 SCR 651}}{{perSCC|Rothstein J}} (4:3)<br>
</ref>
Where a breach of the right to full disclosure is found it does not necessarily follow that the right to make full answer and defence was violated.<ref>
{{supra1|Dixon}}{{atsL|1fqvj|23| and 24}}</ref>
Where the right to make full answer and defence is not implicated, the usual remedy is either an adjournment or order of production.<ref>
see {{supra1|Dixon}}{{atsL|1fqvj|31| and 33}}</ref>
In fact in general, where disclosure has not been given or is given late, the usual remedy is an adjournment.<ref>
{{CanLIIRP|Demeter|g14jp|1975 CanLII 685 (ON CA)|(1975) 10 OR 321 (CA)}}{{TheCourtONCA}}<br>
{{CanLIIRP|Caccamo|1mzj4|1975 CanLII 11 (SCC)|[1976] 1 SCR 786}}{{perSCC|de Grandpré J}}<br>
{{supra1|Bjelland}}{{atL|24wcw|25}}
</ref>
Where there is a failure on the part of the Crown to meet the Stinchcombe obligations, there is an obligation on the part of the defence to raise the issue.<ref>
{{supra1|Greganti}} ("When the defence is aware of a failure ... to disclose relevant material, there is an obligation to bring that failure to disclose to the attention of the Crown, and ... the Court.")</ref>
A failure to disclose will invoke s. 7 and 11(d) of the Charter.<ref>
{{supra1|O'Connor}}}{{atL|1frdh|73}}<br>
{{CanLIIRP|Khela|1frgf|1995 CanLII 46 (SCC)|[1995] 4 SCR 201}}{{perSCC|LeBel J}}{{atL|1frgf|18}}<br>
</ref>
To establish a breach of s. 7 due to non-disclosure does not require that the claimant show actual prejudice.<ref>
{{CanLIIRP|Carosella|1fr3p|1997 CanLII 402 (SCC)|[1997] 1 SCR 80}}{{perSCC-H|Sopinka J}}{{atL|1fr3p|37}} ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.  Breach of that obligation is a breach of the accused’s constitutional rights without the requirement of an additional showing of prejudice.")<br>
</ref>
However, a remedy under s. 24(1) to a breach to s. 7 or 11(d) of the Charter "will generally require a showing of actual prejudice to the accused's ability to make full answer and defence."<ref>
{{ibid1|Carosella}}{{atL|1fr3p|37}}<br>
{{supra1|O'Connor}}{{atL|1frdh|74}}<br>
{{CanLIIRP|La|1fr18|1997 CanLII 309 (SCC)|[1997] 2 SCR 680}}{{perSCC-H|Sopinka J}}{{atL|1fr18|25}}<br>
</ref>
When considered in the civil context, not all breaches of disclosure are equivalent.<Ref>
{{CanLIIRPC|Henry v British Columbia (Attorney General)|ghdq1|2015 SCC 24 (CanLII)|[2015] 2 SCR 214}}{{atL|ghdq1|69}}
</ref>
{{Reflist|2}}
==Defence Counsel Duties==
{{seealso|Role of the Defence Counsel}}
; Obligation to Raise Disclosure Issues
The accused should openly communicate with the court on any issues with disclosure. Likewise, the Crown is entitled to rely on those representations to determine whether disclosure has been completed.<ref>
{{CanLIIRx|Barbour|4t69|2017 ABCA 231 (CanLII)}}{{TheCourtABCA}} (3:0){{atL|h4t69|32}}
("The accused must communicate openly with the Court and Crown with respect to disclosure issues. The Court and the Crown are entitled to take assurances by the accused at face value. When the appellant represented that she had disclosure, and had spent significant amounts of time reviewing it, the Crown was entitled to assume that its obligation to disclose had been discharged.")
</ref>
; Change of Counsel
When there is a change of counsel or a loss of counsel, previous counsel has a duty to facilitate the transfer disclosure to the accused or their new counsel.<ref>
{{ibid1|Barbour}}{{atL|h4t69|32}} ("When there is a change of counsel, or the accused becomes self-represented, there is an obligation on counsel and the accused to ensure that the disclosure is passed along or otherwise obtained by the new counsel or the accused")<br>
{{CanLIIR-N|Dugan| (1994), 149 AR 146}}{{At-|5}}<br>
</ref>
{{reflist|2}}
==See Also==
* [[Disclosure (Cases)]]
* [[Production of Records for Sexual Offences]]
* [[Types of Disclosable Materials]]
; External Links
* [http://blogs.adobe.com/adobeingovernment/files/adobeingovernment/lesage_code_report_en.pdf Lesage Code Report] (2008)
* [https://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/crimjr/ Report of the Criminal Justice Review Committee, Executive Review ] (1999)
Récupérée de « https://carnetdroitpenal.ca/fr/index.php/Obligation_de_la_Couronne_de_divulguer »