Disclosure and third-party records

Overview

Preparing a defence requires access to information, including information the prosecution does not intend to present at trial. The first task is to identify who holds the material and which legal route governs access. A police interview, a business record held by an uninvolved employer and a complainant's therapeutic file can require different applications even when each appears useful.

Disclosure (divulgation de la preuve), production to the judge and production to the accused are distinct steps. Admissibility is another question again. Receiving a document does not automatically authorize filing it as evidence, questioning a witness about every passage or circulating it outside the proceeding. Keeping these decisions separate protects both full answer and defence and the interests of people whose information appears in the file.

This lesson concerns ordinary adult criminal proceedings. It explains Crown disclosure, the common-law route for third-party records and the current statutory routes for protected records. The date the charge was laid matters for the last category: the July 18, 2026 reforms do not govern every hearing held after that date.

Learning Objectives

• Select the proper access route from the record's holder, connection to the investigation and statutory protection.
• Explain the parties' different burdens and the distinction between judicial inspection, defence access and admissibility.
• Prepare a focused request and connect any disclosure failure to an appropriate, supported remedy.

Begin with the prosecution file

Relevant information extends beyond intended exhibits

The Crown disclosure framework associated with Stinchcombe requires disclosure of relevant, non-privileged information in the prosecuting Crown's possession or control, subject to lawful exceptions. It includes material favouring the accused and material undermining a prosecution witness. The prosecutor cannot withhold an interview merely because that witness will not be called. The duty is continuing; additional information received later requires attention too.

Relevance for disclosure is broad. Information may assist the defence by supporting an investigation, testing credibility or informing a procedural decision even if the information itself will not be admissible at trial. R. v. McNeil, 2009 SCC 3, paras. 17–24, and R. v. Gubbins, 2018 SCC 44, paras. 18–29, explain the governing framework. A request for ordinary disclosure does not require the accused first to prove a defence or obtain a production order.

The Crown bears the justificatory burden when withholding material within this framework. Clearly irrelevant information, privilege and a governing statutory restriction require distinct analysis. A claim that disclosure might be inconvenient is insufficient. Timing or manner may need adjustment to address a demonstrated danger or public interest, but those decisions remain reviewable by the court.

The defence should request disclosure promptly and identify omissions concretely. A useful request names the item or category, connects it to the case and asks whether it exists, where it is held and why it has not been provided. An index, missing attachment or reference in an officer's notes can identify a real gap. Repeated demands for “everything” without addressing the Crown's response do little to resolve an actual disagreement.

Initial disclosure must arrive before the accused is required to elect a trial mode or plead, allowing the information to inform those decisions (McKee, para. 33). The continuing obligation survives trial: relevant information may also assist an appeal (McNeil, para. 17).

If the Crown says it has disclosed everything and denies or does not know of the requested item's existence, the defence must first supply a basis for finding that further potentially relevant material exists. Counsel's supported submissions may suffice; a hearing with evidence may be needed. Once that basis is established, the Crown must justify any continuing refusal. R. v. Chaplin, [1995] 1 SCR 727, paras. 30–33, prevents the ordinary Crown burden from becoming an obligation to disprove speculation.

Police holdings and the duty to inquire

The fruits of the investigation (fruits de l'enquête) include material generated or obtained through the investigation of the charges. Investigating police must transmit relevant material to the prosecutor. The Crown cannot avoid its disclosure responsibility simply by saying that police retained the document. Material outside the investigative file may also belong in first-party disclosure because it bears on the accused's ability to meet the case or decide how to defend it.

However, every public authority is not automatically part of a single prosecuting entity. A government department's unrelated operational file does not become Crown disclosure merely because the department is publicly funded. Gubbins, para. 33, asks whether the Crown possesses or controls the material and whether police or another state entity ought to have supplied it as investigative fruits or relevant information of the required kind.

The Crown's duty to inquire arises when sufficiently grounded information indicates potentially relevant material elsewhere. The prosecutor must inquire and obtain it if reasonably feasible. The duty is not confined to a request from defence counsel. Credible information from another prosecutor or another file can require inquiry. A prosecutor should promptly explain a supported conclusion that the notice is unfounded or the information cannot reasonably be obtained so that the defence can consider its next step.

Police misconduct information after McKee

Edmonton (Police Service) v. McKee, 2026 SCC 24, clarifies that administrative removal of a disciplinary finding does not itself transform relevant police misconduct information into third-party material. The information's age can affect relevance, but its administrative label does not decide the constitutional disclosure route. The question remains its potential assistance to the defence.

The judgment also rejects treating “obvious relevance” as a higher degree of relevance. Police screen and transmit information; they do not replace the Crown's independent assessment. If police withhold misconduct information as irrelevant, they must tell the Crown what is withheld and why. The prosecutor can request particulars and reassess the decision. This does not require indiscriminate disclosure of every police employment file to the accused: relevance, privilege and appropriate privacy safeguards still matter (McKee, paras. 78–90, 96–103 and 124–144).

“Serious misconduct” is assessed by its potential assistance to the defence, not solely by the disciplinary label or penalty. The categories used to screen misconduct information are non-exhaustive, and necessary disclosure is not limited to the date, offence and punishment recorded on a conviction-style summary (McKee, paras. 100–112).

Use the third-party route when required

Establish likely relevance without a speculative search

Third-party production (production de dossiers de tiers) ordinarily requires a judicial application when the material falls outside Crown disclosure and no special statutory regime governs it. The common-law procedure associated with O'Connor, as explained in McNeil, paras. 28–46, begins with likely relevance (pertinence vraisemblable). The accused must show a reasonable possibility that the information has logical value for an issue at trial or a witness's ability to testify.

This threshold prevents speculative searches through another person's records. It does not require the accused to describe the exact passage in a document never seen. The application should explain the factual basis, identify the holder and proposed record, and connect the request to an actual issue. Narrow dates or categories often express that connection more clearly than a demand for a person's entire history.

The record holder must be properly brought before the court, ordinarily through the appropriate subpoena. The application requires appropriate affidavit support; the Crown, the subject of the records and other people with a privacy interest receive notice (McNeil, para. 27). A subpoena is not a licence for the defence to inspect protected documents privately before the production issue is decided. The application belongs before the judge seized with the trial, including before trial begins where appropriate.

Judicial inspection precedes the final access decision

If the threshold is met, the judge can order production for judicial inspection (examen judiciaire). The judge then determines actual relevance and whether, and to what extent, the accused should receive the record. The analysis considers the defence interest and the competing interests in the particular circumstances. Privileged material requires its own protection and cannot be treated as ordinary non-privileged third-party material.

Under McNeil, genuinely relevant non-privileged material will generally be produced, absent an overriding statutory rule or another recognized basis for withholding it. Privacy may justify redaction (caviardage), limits on copying or conditions on use. The existence of personal information does not automatically defeat a justified defence request; neither does relevance justify unnecessary exposure of unrelated personal details.

Application: a delivery log and an officer's notes

Factual Scenario

In a hypothetical non-sexual prosecution, the accused disputes being at a depot at 9 p.m. A delivery driver says he saw the accused while unloading there at that time. Police interviewed the driver, but the disclosure index lists an interview attachment that was not supplied. A separate private carrier, uninvolved in the investigation, retains a dispatch log that may establish when that driver arrived. The defence has an invoice identifying the delivery and its date. No privilege claim or special statutory production regime is assumed.

Recognize protected records and the applicable statutory version

The charge date selects the statutory route

Section 100 of the Protecting Victims Act, SC 2026, c 19, makes the reorganized record provisions applicable only where the charge for the offence is laid on or after July 18, 2026. An October hearing concerning an earlier charge does not itself engage the new scheme. For earlier charges, consult the former provisions and their applicable amendments. Current section numbers cannot safely be inserted into an older application.

The present scheme distinguishes a protected record containing personal information with a reasonable expectation of privacy from a therapeutic record (dossier thérapeutique). Section 278.1 defines the latter by its creation during psychiatric treatment, therapy or counselling provided by a health professional legally entitled to provide that service under provincial or foreign law, regardless of its contents. Its test therefore cannot simply be reduced to whether a particular sentence looks private.

The statutory offence lists and extended sexual-nature or sexual-purpose scope in ss. 278.11 and 278.2 must be checked. The scheme concerns records relating to complainants or witnesses in the covered proceedings; it is not the default for every medical record in every criminal prosecution. The ordinary record definition excludes records made by those responsible for investigating or prosecuting the offence. Classification requires the actual statutory wording and context.

Third-party possession and Crown possession differ

For third-party possession, ss. 278.11–278.19 govern production. For Crown possession, ss. 278.2–278.28 supply a separate route. The Crown's possession therefore does not necessarily make a protected file automatically available through ordinary disclosure. The Crown must give the notice required by s. 278.2(3), subject to the permitted-production exceptions, without disclosing the contents in that notice.

Section 278.2(2) permits production in specified situations: ordinary records or parts the prosecutor intends to adduce or that directly relate to the activity charged; records or therapeutic records whose disclosure the complainant or witness agrees to; and communications between accused and complainant. These categories must be read separately. The first category's ordinary-record wording must not be expanded into blanket permission to disclose every therapeutic record mentioning the incident.

For a record or therapeutic record relating to a complainant that the accused intends to adduce, the statutory admissibility route begins at s. 278.29. Even permitted Crown production does not remove those requirements. The lesson on character and sexual-history evidence addresses the further restrictions on introducing the material or using sexual-activity evidence. An access ruling should never be described as advance permission for unrestricted cross-examination.

Apply the protected-record production tests

Prepare the application and protect participation

Under ss. 278.12 and 278.21, the accused applies in writing to the trial judge. The application identifies the requested material and grounds. These applications cannot be brought before a preliminary inquiry judge. Service ordinarily precedes the hearing by at least sixty days, subject to a shorter interval allowed in the interests of justice. The third-party route also requires the specified subpoena to the holder. The accused cannot personally serve the complainant.

The hearings occur in camera (à huis clos). The affected people have statutory rights to participate, receive information about representation by counsel and remain non-compellable as witnesses at these hearings. They cannot be ordered to pay costs for participating. The judge inspects the material without the parties and may hold a further closed hearing before deciding defence access. Reasons are required for granting or refusing production at either stage. Sections 278.18 and 278.27 prohibit publication of the application and hearing information, with express exceptions, including specified disclosures by complainants or witnesses. Publication of the decision and reasons requires the statutory authorization unless an exception applies.

Unsupported assertions do not establish the threshold. Saying that treatment occurred, that a file might reveal an inconsistency or that the person received psychiatric care is insufficient on its own. The application needs a factual connection to the permissible statutory purpose. Treatment cannot be used as a shortcut to an inference of dishonesty or unreliability.

Keep the two stages and two kinds of record distinct

At the judicial-production stage, ss. 278.14 and 278.23 distinguish ordinary records from therapeutic records. An ordinary record requires likely relevance to an issue at trial or a witness's competence. A therapeutic record requires evidence that could raise a reasonable doubt about guilt. The judge must also be satisfied that production for inspection is necessary in the interests of justice and must consider the listed defence, privacy, equality and security factors.

After inspection, ss. 278.16 and 278.25 govern production to the accused. For an ordinary record, likely relevance and necessity in the interests of justice remain central. For a therapeutic record, the judge must be satisfied that it contains evidence likely to raise a reasonable doubt and unavailable from any other source. “Could” at the first stage and “likely” at the second must not be treated as interchangeable.

An order can cover only part of a record and impose safeguards. The judge may redact unrelated information, restrict access and copying, or direct the place of inspection. The statutory balancing includes the accused's defence rights and the affected person's privacy, equality and personal security. It also recognizes the public interests in reporting sexual offences, obtaining treatment and preserving the integrity of the trial process.

Application: a request for counselling notes

Factual Scenario

Assume a hypothetical sexual-assault charge laid on August 10, 2026. A health professional legally entitled to provide counselling holds notes created during the complainant's counselling. The accused requests all notes from three years because they “might contain contradictions.” Nothing else connects the notes to a disputed fact. The accused has not seen them and offers no basis for saying necessary evidence is unavailable elsewhere.

Match the remedy to the proven problem

Missing, late and lost material need different responses

A disclosure order and workable timetable may resolve an outstanding document. Late disclosure may require time to investigate, recall a witness or reconsider a procedural decision. A lost item requires an account of what existed, how it was lost, what preservation steps were taken and how its absence affects the defence. Loss does not automatically establish either state misconduct or an irremediably unfair trial.

The Crown and police must take reasonable steps to preserve relevant evidence. Where material once held is unavailable, the Crown must explain its loss; the court assesses whether it resulted from unacceptable negligence, considering the circumstances and perceived relevance. Even a satisfactory explanation does not defeat a separately established claim that the loss causes actual prejudice to full answer and defence (R. v. La, [1997] 2 SCR 680, paras. 17–25). The remedy still requires its own justification.

R. v. Bjelland, 2009 SCC 38, paras. 17–27, warns against automatic exclusion for late disclosure. The accused must establish the relevant Charter breach and support the requested remedy. Exclusion under s. 24(1) is exceptional where less intrusive measures cannot protect fairness or where exclusion is necessary to preserve the justice system's integrity. A stay of proceedings (arrêt des procédures) is likewise exceptional for disclosure failures.

Document the concrete prejudice (préjudice): an investigative opportunity lost, a decision that cannot fairly be revisited, or a delay with specified consequences. Explain why a narrower response does or does not cure it. The Charter-remedies lesson supplies the broader framework; a disclosure complaint should not collapse breach, harm and remedy into a single unsupported conclusion.

Practice Checklist

• Identify the holder, the material sought and its connection to the investigation.
• Distinguish ordinary Crown disclosure, common-law third-party production and statutory protected records.
• Verify the charge date and applicable version of the protected-record provisions.
• State the correct threshold, burden, forum, notice and service requirements.
• Separate production to the judge, production to the accused and admissibility.
• Respect privilege, redactions, use restrictions and participation rights.
• Follow up missing material and record the Crown's explanation.
• Support the remedy with evidence of the breach and its concrete consequences.