Crown’s Disclosure Obligations in Respect of an In-Custody, Unrepresented Accused

An accused has the constitutional right to disclosure of all material that could reasonably be of use in making full answer and defence of the case against her, as guaranteed by s. 7 of the Canadian Charter of Rights and Freedoms.


Because pre-trial custody may involve institutional rules that are inhospitable to accessing disclosure, as well as unpredictable events, such as lockdowns, an unrepresented accused person has little scope for exercising initiative in relation to disclosure.

As a result, it falls to the Crown to take positive steps to ensure that the relevant materials make in into the hands of an in-custody accused. 

What steps are required will depend on the circumstances of each case but may include the following:

·         a readiness hearing held reasonably in advance of the trial in order to alleviate or eliminate any inadequate disclosure;

·         personal service of materials;

·         further court appearances including videoconferences, to ensure that disclosure is complete and the case is ready for trial;

·         as well, the set-date judge should make ongoing inquiries on the state of Crown disclosure and expected delivery dates.

R. v. Tossounian, 2017 ONCA 618, at para. 22.

Stuart O’Connell, O’Connell Law Group, www.leadersinlaw.ca






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