Guides / BC criminal process
What does disclosure mean, and why does it matter to your defence?
Disclosure is the Crown's obligation to hand over everything the police gathered in your investigation, the material that helps you along with the material that hurts you. It matters because until that file is in front of you, nobody knows what the case against you is worth, and that includes me.
In British Columbia the first package has a name. It is called the particulars. Crown counsel here approve charges before they are sworn, which means a Crown lawyer has already read a police summary called the Report to Crown Counsel and decided the file meets the charge assessment standard. The particulars are where you start reading the same material. Officer notes. Witness statements. The 911 audio. Booking video from the detachment. Whatever the investigation produced and kept.
Most of what I do in the first three months of a file is read.
What is the Crown required to hand over?
Everything relevant that is not privileged. That rule comes from the Supreme Court of Canada in R. v. Stinchcombe, decided in 1991, and it has governed criminal files in this country ever since. The Crown must disclose relevant material whether it intends to use it at trial or not, and whether it builds its case or damages it. The duty is ongoing. Something that surfaces in month eight has to be disclosed in month eight.
Two features of that rule do more work than people expect.
First, the obligation runs one direction. I do not have to tell the Crown what the defence is, hand over my client's version of events, or explain what I intend to do in cross-examination. There are narrow exceptions, expert reports being the one that comes up most, but the general position holds. The Crown builds its case in the open, and I get to read all of it before my client decides anything.
Second, relevance is not measured by what suits the Crown. In R. v. McNeil, decided in 2009, the Supreme Court confirmed that the police carry their own duty to pass the fruits of the investigation to the Crown, and that findings of serious misconduct by an officer involved in the case can be disclosable as well. The Crown does not get to hand you the parts of the file that read well and keep the rest.
Why does it matter if I already know what happened?
Because you were there for your twenty minutes. The case against you is built out of everybody else's twenty minutes, written down by strangers, months before anyone asks you a question in a courtroom.
Here is the concrete version. A client tells me the officer never gave him a chance to call a lawyer. That is his memory, and I take it seriously. Then the notes come in: caution read at 11:52, call to counsel declined at 11:58, initialled in the margin. Now there is a conflict that is worth something, because it sits on paper, and the booking area video either supports those notes or it does not. I cannot get any of that from my client. It comes out of the disclosure.
That is the shape of most files. The defence rarely comes from what my client remembers. It comes from the distance between what the police wrote down at the time, what the witnesses said before anyone was thinking about a trial, and what the Crown needs a judge to accept a year later. You find that distance by reading, line by line, in the Crown's own paper.
I will not pretend disclosure only ever helps. Sometimes the package lands and it is worse than the client hoped. There is video nobody mentioned, or a second statement, or a text message thread that closes off the version we were building. That is a bad day. It is a bad day fourteen months before trial rather than on the morning of it, which is the difference between negotiating a resolution from a position you understand and walking into a courtroom to be surprised.
The disclosure you receive is not proof of everything that exists. Video systems overwrite themselves on a cycle measured in weeks. Dispatch audio gets purged. A witness's phone stays in the witness's pocket. Records held by a third party, a hospital or a school or a private business, sit outside the Crown's file altogether and take a separate application to reach. Every one of those windows closes on a clock that starts running the day of the incident, which is the reason a defence lawyer wants the file early rather than a month before trial.
What happens when disclosure is late or missing?
You do not go to trial blind, and you do not have to accept the file as it arrives.
The first step is unglamorous and it works more often than people assume. I write to Crown counsel and ask for the missing material by name: the dispatch log, the full 911 recording rather than the clip, the officer's original notes rather than the typed summary, the body worn camera footage where the detachment has it. Naming the item matters. A general request for outstanding disclosure produces a general answer.
Where a letter does not do it, the request goes in front of a judge. The right to disclosure is part of the right to make full answer and defence protected by section 7 of the Charter, and a trial judge can order the Crown to produce, adjourn the trial so the defence has time to work with late material, or grant a remedy under section 24(1). A judicial stay of proceedings for a disclosure failure is possible and it is rare, and I would not build a strategy around one. The everyday value of the rule is that Crown counsel know the obligation is enforceable, so most of these fights end in a letter and a supplementary package.
One practical point, and it is the reason clients call me after they have already been to court once. Do not enter a plea before you have read the disclosure. The pressure to resolve a matter early is real, and it is at its strongest when you have seen nothing but the charge sheet and want the stress to end. A guilty plea is close to permanent. The file that supports it can turn out to be thinner than the officer's summary suggested, and you will not know that until you read it.
What this means for your file
The Crown's package is the ground the whole case is fought on. Every Charter application, every cross-examination, every decision about whether to run a trial or negotiate comes out of what is in it, and out of what is missing from it. Getting that material, in full and early, is the first real work on any criminal file in this province. It is also the work that decides how much of everything else is available to you. If you want the wider picture of how a file moves through the system, the guides on what happens at a first appearance and on how bail works in BC pick up where this one leaves off.
You cannot answer a case you have not read.
This is general information, not legal advice, and every case turns on its own facts. If you are facing a criminal charge in BC and want advice on your situation, the first conversation is free and confidential.
Common questions
What is the difference between the particulars and disclosure in BC?
The particulars are the first disclosure package the Crown provides in a British Columbia criminal case, usually the Report to Crown Counsel along with core witness statements and officer notes. Disclosure is the wider ongoing obligation. The particulars are the start of it, not the end of it, and further material has to be produced as the file develops.
Do I have to give the Crown my defence in return?
No. The disclosure obligation runs one direction. The defence does not have to hand over the accused's version of events or explain its trial strategy, subject to narrow exceptions such as notice of expert evidence. The Crown builds its case in the open and the defence reads all of it first.
Can I be asked to plead before I have received disclosure?
You can be asked, and you should not answer until you have read the file. A guilty plea is close to permanent, and the evidence behind a charge often turns out to be weaker than the police summary suggested. Reading the disclosure first is the only way to know what you are agreeing to.
What can I do if the Crown has not disclosed something I need?
Ask for it by name in writing to Crown counsel, which resolves most requests. Where it does not, a trial judge can order production, adjourn the trial so the defence can work with late material, or grant a remedy under section 24(1) of the Charter. The right to disclosure is part of the right to make full answer and defence under section 7.