Disclosure is the foundation of every criminal defence. Before counsel can advise, develop strategy, or prepare for trial, they must know what the Crown’s case contains. In sexual assault cases, disclosure is particularly important because much of the evidence is sensitive, the issues often turn on credibility, and parts of the file are governed by additional statutory regimes.
The Stinchcombe Rule
In R v Stinchcombe, the Supreme Court of Canada held that the Crown has a constitutional duty to disclose all relevant information in its possession to the defence. This duty is not discretionary. The defence does not need to request relevant material for it to be disclosed.
Relevance is assessed broadly. If information may reasonably assist the defence in preparing for trial, considering possible defences, or making informed decisions about resolution, it must be disclosed. The threshold is low.
The duty is ongoing. As new information becomes available, the Crown is required to continue disclosing it. Failure or delay in disclosure may result in remedies under section 24(1) of the Charter.
What Disclosure Looks Like in a Sexual Assault Case
In a typical sexual assault file, the disclosure package may include:
- Police occurrence reports and supplementary reports
- Officer notes from all involved officers
- Witness statements, often with audio or video recordings
- The complainant’s statement to police, usually video recorded
- Any statement made by the accused
- Forensic results, including DNA and toxicology reports
- Sexual Assault Evidence Kit reports, where a kit was completed
- Body-worn camera footage
- Surveillance video collected by police from nearby cameras
- Hospital or medical records related to the alleged offence
- Photographs of injuries, scenes, or other relevant items
- Communications between police and the complainant after the report was made
Files vary in size. Some sexual assault files run to a few hundred pages of disclosure, while others involve thousands of pages and many hours of video material.
First-Party and Third-Party Records
Disclosure law distinguishes between two categories of records.
First-party records are those in the possession of the Crown or police. The rule in R v Stinchcombe applies. The Crown must disclose all relevant information in its possession, subject to privilege and other recognized legal exceptions.
Third-party records are held by individuals or institutions outside the state, such as hospitals, schools, or counsellors. The Stinchcombe obligation does not apply to these records. To obtain them, the defence must proceed through the section 278 regime.
The distinction is not always straightforward. Records originating from third parties may become first-party records once obtained by police or the Crown. In other situations, material that has been reviewed but not formally obtained by the Crown may fall into a grey area. Counsel must therefore carefully think about each piece of material and how it travelled to the Crown’s file.
Common Disclosure Problems
Disclosure issues arise frequently in sexual assault cases. Some recurring problems can include:
- Late disclosure: Material is sometimes provided to the defence shortly before trial, leaving little time to review and respond. Where the material is significant, remedies may include an adjournment, costs, or in rare cases a stay of proceedings
- Missing officer notes: Multiple officers may attend an investigation or scene. If notes from any officer are missing, the defence may be unable to properly test inconsistencies in the police evidence
- Body-worn camera gaps: Body-worn cameras have become a key investigative tool. Missing footage from relevant periods can be highly significant
- Forensic delays: DNA and toxicology results can take months to be completed. Trials are sometimes scheduled before key forensic evidence is available, creating challenges for case preparation
- Communications with the complainant: Police may have ongoing communications with complainants after the initial report. Text messages, emails, and call logs are sometimes not included in the initial disclosure package
Reviewing Disclosure
Disclosure review is one of the most labour-intensive parts of a sexual assault defence. Counsel must review all documents, watch all video footage, listen to all audio recordings, and identify inconsistencies, gaps, and investigative leads. A careful review often reveals issues not identified by the Crown, including potential witnesses, records that may need to be sought under section 278, and possible concerns about how the investigation was conducted.
Counsel must also assess what is missing. Disclosure is not only about what has been provided, but also about what should exist and has not been disclosed. In many cases, this requires follow-up requests, written disclosure demands, or formal applications to compel production.
How Disclosure Connects to the Section 278 and 278.92 Regimes
The disclosure package often identifies records that the defence may seek through section 278. References to therapy in a witness statement, notes in the police file about counselling, or comments in forensic materials can all signal third-party records that may be relevant.
Disclosure may also identify records already in the accused’s possession. Mentions of text messages, social media communications, or photographs in the complainant’s statement can point to material that may be subject to section 278.92.
In this sense, disclosure is often the starting point for much of the pre-trial work in a sexual assault case. A careful review of the file shapes the applications, strategy, and issues that follow.
Worried about what is in your disclosure?
A thorough disclosure review can change the trajectory of a sexual assault case. Contact us to talk about how we can help you understand what is in your file and what to do about it.
