Full disclosure is a constitutional right under Section 7 of the Canadian Charter of Rights and Freedoms. When facing criminal charges, this right protects your ability to mount a full and fair defence.
Law enforcement and Crown prosecutors are obligated to preserve and disclose all evidence that is likely relevant to your case—even if it doesn’t support the prosecution’s position. When evidence is lost, destroyed, or never preserved, it may amount to a breach of your Charter rights. Critically, proving this kind of breach does not require showing actual prejudice to your defence—only that the fairness of the trial process is at risk.
In this article, we break down what constitutes a breach of the right to disclosure, how courts assess these violations, and what remedies may be available when your rights are compromised.
Table of Contents
- What Is a Breach of the Right to Disclosure?
- Abuse of Process – Sections 7 and 11(d)
- Charter Notice Requirements
- Types of Breaches
- Deliberately Destroyed Evidence
- Inadvertently Destroyed Evidence
- Evaluating Charter Rights Violations
- Examples of Clearly Relevant Evidence
- Establishing That Evidence Was Lost or Destroyed
- Conclusion
What Is a Breach of the Right to Disclosure?
Under Section 7 of the Charter, full disclosure is a core component of the right to make full answer and defence. This means the Crown must:
- Preserve evidence collected during an investigation
- Disclose all materials likely to be relevant—even those that do not support their case
If relevant evidence is lost, destroyed, or never preserved, this can constitute a Charter breach. Importantly, the accused does not need to prove actual harm to their defence—just that the loss could impact the fairness of the trial.
Abuse of Process: Section 7 and Section 11(d) of the Charter
Section 11(d) of the Charter guarantees the right to a fair trial, while Section 7 guarantees the right to make full answer and defence. Together, these rights protect an accused person from being deprived of all likely relevant evidence that may impact their defence or other issues at trial.
The main category of Charter violations due to lost or destroyed evidence involves situations where, without that evidence, a fair trial is impossible. The more integral the missing evidence is to making full answer and defence, the more likely it is that an extraordinary remedy, such as a stay of proceedings, will be granted.
The residual category of Charter breaches applies when allowing the prosecution to continue would undermine the integrity of the justice system. These cases typically involve state conduct that offends societal standards of decency and fairness. This category does not require proof that the accused’s ability to defend themselves was impaired—only that the state’s actions violated the rules of fair play required in Canada’s justice system.
Charter Notice Requirements
The lawyers at BW Law are well equipped to review your case and determine:
- What specific breaches the accused can assert
- What evidence is available to establish these breaches
- What remedy should be sought
Types of Breaches
Deliberately Destroyed Evidence
In some cases, third parties may possess relevant evidence. A fact-dependent situation arises when a third party follows a policy of destroying evidence to avoid its use in prosecutions and to circumvent disclosure obligations. The Supreme Court of Canada has held that in such cases, the appropriate remedy is often a stay of proceedings.
Inadvertently Destroyed Evidence
For example, a police interview recording of a witness, conducted during a separate investigation involving the same accused, may be lost. Similarly, forensic exhibits can be tainted or damaged during collection, handling, or testing.
Evaluating Charter Violations Due to Lost or Destroyed Evidence
Lawyers begin by reviewing the available disclosure and requesting more if needed. To learn more about the significance of disclosure in building a strong defence, click here.
If it’s determined that relevant evidence is missing, lost, or destroyed, the next step is assessing the cause:
- Was the loss deliberate?
- Was it due to unacceptable negligence?
- Was it simply oversight?
If due to unacceptable negligence, the onus shifts to the Crown to prove otherwise. Even if the Crown shows the loss wasn’t negligent, the analysis doesn’t end there.
The significance of the missing evidence to the accused’s defence is then assessed. The more crucial the missing item, the more serious the remedy may be. In clear cases, courts will order a stay of proceedings. Lesser violations can still lead to remedies like exclusion of evidence or a reduced sentence if the accused is convicted.
Examples of Clearly Relevant Evidence
The Crown must disclose all material likely to be relevant—whether it supports their case, advances the defence, or otherwise affects trial conduct.
A non-exhaustive list includes:
- Recorded statements from complainants or material witnesses
- Forensic evidence: DNA, drug analysis, firearms testing, blood/urine analysis, fingerprints
- Police disciplinary records that may affect their trial credibility
- Records on the functioning of investigative tools (e.g., breathalyzers in impaired driving cases)
Establishing That Evidence Was Lost or Destroyed
Police and the Crown are not required to seek out or create evidence at the defence’s request. Defence lawyers also cannot direct police investigations.
However, timely disclosure requests are essential in alleging a Charter breach.
Deliberate failure to disclose relevant evidence can constitute a Section 7 violation. This includes:
- Officers failing to activate recording equipment (e.g., body cams, dash cams)
- Officers omitting complete or accurate notes or reports
- Choosing not to collect easily accessible evidence (e.g., third-party surveillance, electronic messages, or witness statements)
This differs from negligent investigation claims.
Missing items may not be obvious in the disclosure package. Careful analysis and thoughtful follow-up are crucial to identifying discrepancies.
Protecting your right to full and complete disclosure is one of the most fundamental first steps in building a strong defence.
Conclusion
Deciding whether to raise Charter issues related to lost, destroyed, or never-obtained evidence is always a strategic legal decision. At BW Law, we explore all avenues to obtain evidence—whether through further disclosure, reviewing client-held materials, or hiring private investigators.
In some cases, our investigations have uncovered evidence that either proves our client’s innocence or significantly weakens the prosecution’s case. When all relevant evidence is brought to light, we’re in the strongest position to defend our clients.