CHAPTER 6

Disclosure &
Pre-Trial Conferences
 Expected Learning Outcome
Outline the Crown's disclosure
Explain what occurs at a Judicial
01 obligation to the accused 03 Pre-Trial conference

Explain what occurs at a Crown pre- Describe the process behind sending
02 trial conference 04 the accused to a "Diversion
Program"

Discuss when a Section 810 Peacebond

05 may be entered into by the defendant
 Introduction

Before a criminal charge is set for trial, there are a number of pretrial
considerations to take into account. From settlement to trial
management, there are numerous issues that must be considered by the
defence paralegal prior to a trial.

These issues are negotiated between the crown and the defence and a
crown pretrial and sometimes at a judicial pretrial conference.

Sometimes the criminal matter is settled by sending the accused to

complete a "Diversion Program" or having them enter into a Peace Bond.

However, before any meaningful discussions can take place, the defence
must have full knowledge of the Crown's case against the client better
known as disclosure.
 Disclosure
The Right to Disclosure

Disclosure - The constitutional right of an accused person to obtain all information in the possession of the Crown that is
relevant to establishing the guilt or the innocence of the accused

Inculpatory Evidence - Evidence that tends to establish the guilt or blameworthiness of the accused

Exculpatory Evidence - Evidence that tends to exonerate or clear the accused

One of the most fundamental principles of our Justice System is that the accused is entitled to make a full answer and defence
pursuant to the Common Law and pursuant to Section 7 of the Charter. This means

an accused has a right to defend themselves in a full and complete manner without any prejudice and or interference from the
Government, law enforcement agencies or anyone else.

Before an accused person can make any meaningful decision about how to plea to the charge, they must fully understand and
appreciate the extent of the Crown's case. The accused must be able to properly defend themselves against the charge that has
been laid. This is to protect people's Rights and to avoid arbitrary punishments and kangaroo courts.

Historically, the element of surprise was a tactical strategy that one party would use against the other in criminal or civil
proceedings. In criminal proceedings, for instance, the Crown would voluntarily provide disclosure to the defence, but there
were no laws or procedural rules requiring the crown to do so. In the Criminal Code, the accused right to disclosure is
mentioned in Section 603, which states that an accused is entitled to inspect the indictment or the information, their
statement, and a copy of the evidence. However, disclosure obligation of the crown is not limited to these items. The common
law is more specific as to the exact nature of the Crowns obligation to disclose information.

 Disclosure
The Right to Disclosure

In the landmark case of R v Stinchcombe, the Supreme Court of Canada highlighted the duty of the
Crown to disclose any relevant information to the defence.

The case established the thinking that:

Materials that are in the Crown's possession or not the property of the Crown for the purpose of
securing a conviction but are the public property to ensure that justice is done.

All relevant information must be disclosed, regardless of whether or not the Crown intends to rely
on it as evidence at the trial. This means that the information must disclose whether it is
inculpatory evidence or exculpatory evidence.

Furthermore, the Crown's discretion in determining whether the information is relevant or irrelevant is
reviewable by the trial Judge. The test for relevance is not an onerous one. Relevance in this context
means a reasonable possibility that the information will be useful to the accused in making a full
answer in their defence.

 Disclosure
The Right to Disclosure

In the case R v Pascal, the Ontario Court of Appeals held that an eyewitness's criminal
record and any outstanding charges they may have would be obviously relevant since they
can contribute to the reliability of the crown witness and are considered to be first-party
disclosure by the Crown, as per R v Stinchcombe.

The duty to disclose is an ongoing one, meaning that the crown must continue to disclose
any information that comes to light leading up to the trial, and if the accused is convicted,
leading up to and including the sentencing stage. The defence paralegal must diligently
pursue disclosure.

The paralegal cannot remain silent about missing disclosure and then bring an application
to seek an adjournment or Judicial stay of proceedings claiming that disclosure has not been
made. Although the crown has an obligation to provide disclosure the defence paralegal has
an obligation to be competent in their practice and know what disclosure is missing or
needed to aid in the defence of the client.

 Disclosure
Exceptions to Disclosure

There are exceptions to disclosure. These can include but are not limited to:

If the material is clearly irrelevant, then the crown does not have to disclose it.

If the material is protected by privilege, then the party climbing pole bridge must satisfy the court that it
extends to the disclosure materials.

Finally, the timing of this disclosure may be delayed due to an ongoing investigation or for the safety of
witnesses.

Any information or material that is in the possession of the police is considered to be under the Crown's control, so
if it is relevant, it must be this disclosed to the defence. If the material is not in the Crown's position but is in the
position of a third-party, such as a complainant or a witness, the accused must make an application before the
court for Disclosure of Third-party Records.

An exception to this rule has come up in the context of police disciplinary records, as seen in the case R v McNeil

See Page 116

 Disclosure
The Timing & Nature of Crown Disclosure

A disclosure package is typically provided by the Crown at the accused first court appearance. If the accused is
being detained in custody, then the disclosure may be provided prior to the bill application, but in skeletal form.
Meaning it would not be a full disclosure package, just outlining the accusations in synopsis form as well as
information about the charge and the accused's criminal record.

If the accused is not in custody, the disclosure is provided to the accused or their counsel, usually, at the first court
appearance.

The Items typically included as part of initial disclosure include, but are limited to:

Copy of the information

Police report or narrative of the incident
Statements of any victims and witnesses
Accused's statement, if any
Notes of investigating officers
Criminal Record
Any videotaped statements
Copies of photographs or images taken by the police
Copies of any court orders binding the accused

 Disclosure
The Timing & Nature of Crown Disclosure

Not all Materials may be available to the defence at the first appearance. Certain items may be forthcoming and
subsequent court appearances.

Additional disclosure items that may become available include but are not limited to:

Expert witness reports

Forensic Reports
Use of force reports
Copies of search warrants and the Information to Obtain (ITO)
Identification evidence
Printed logs of any recordings (such as 911, police intake etc)
Computer printouts of any police database searches (Previous criminal activity)
Notes of professionals such as doctors, paramedics, or firefighters (Emergency responders)
Witness(s) criminal record(s), if any
Police disciplinary records, if relevant (Client may allege mistreatment or officer may have history of nefarious
behaviour that is relevant to the client's version of events as far as the officer conduct)

 Disclosure

The Timing & Nature of Crown Disclosure

Some materials may be redacted to protect:

A confidential police source,
Police investigative techniques,
Any advice covered by solicitor/client privilege, or
Information identifying the address of a witness.

In the case of Wood v Shaeffer, the Supreme Court stated that police officers have a duty to prepare
accurate, detailed, and comprehensive notes as soon as practicable after an incident. Police officers may
be cross-examined on any discrepancy or gaps between their notes and their Viva Voce testimony
(Pronounced VeeVa VoChay) which is a Latin term that means "With Living Voice".

If a police officer has taken any notes, the defence paralegal should request a "Will Say Statement", which
is a statement summarizing what a person will testify in court.
 Disclosure

Charge Screening Form

Charge Screening Form - A form, typically included as part of the disclosure package, that contains
information on how the Crown is proceeding in the Crown's position on sentencing both on a guilty plea
and after trial.

A Charge Screening form is a very useful document as it contains information as to how the Crown will be
proceeding on the charge, whether that be by summary conviction or indictment. It should be noted that
the crown is not required to make a formal election on the record until prior to a guilty plea being entered.
Although the Crown does have this discretion it is quite common for them to make an election in the very
beginning stages of the case so as to not prejudice the accused in their preparations.

An example of this would be whether or not the accused, should they seek to hire legal representation,
can hire a paralegal or is forced to hire a lawyer. Such a decision is dependent on how the Crown chooses
to elect. Being that Paralegals are much more affordable than lawyers, knowing how the Crown intends to
elect can help them in determining their legal representation budget.

 Disclosure
Charge Screening Form

As well as the Crown position additional information on the chart screening form may include:

An early resolution position or any concessions that the crown is prepared to make an early guilty plea

The Crown's position on sentencing on an early guilty plea

The Crowns position on sentencing went to trial date has been entered

What is the matter may be sent to a diversion program to deal with it outside of the court process

Any conditions attached to disclosure or to the use of disclosure materials

Instructions as to how to request additional disclosure

Instructions as to how to apply for legal aid

The charge screening form is also signed and dated by the Crown attorney who prepared it. In order to expedite disclosure, the
defence paralegal should send an initial disclosure request letter to the Crown prior to the first court appearance. This request
not only alerts the Crown to your best contact and location to send the disclosure materials, but also helps confirm the identity
of the client, the next court date, and the paralegal's status as hired legal representative

See Page 274 for Charge Screening Form Example

 Disclosure
Requesting Additional Disclosure

Once you've reviewed the initial disclosure package you should be making notes as to whether additional disclosure, if any, may be
outstanding and necessary for a full defence of the accused. I love the crown has a responsibility to provide all disclosure that is being
used in the prosecution against the accused they may not be aware of any missing items. Therefore, it is important for the accused
representative to be diligent when checking the file to ensure that full disclosure has been provided. This goes to the competency of a
paralegal as it is our obligation to be fully competent and capable of taking on cases. Failure to do so is an omission and is prejudicial
towards the client.

Consideration should be given to whether any pre-trial applications will be brought before the court and whether any specific defences
may be brought at trial based on the initial disclosure. Any additional requests for disclosure should be followed up on to ensure that they
have been responded to well in advance of the trial day.

It is also important for the paralegal to assess whether a request for additional disclosure will harm the client's case.
For example:

A client charged with theft from a convenience store discloses to the paralegal that a surveillance recording of the incident may be
available from the store. If the paralegal requests a copy of the recording, then the Crown will become aware of its existence. If the
recording contains incriminating evidence, such as the client stealing, it will obviously jeopardize the client's case.
On the other hand, if the paralegal does not request a recording, the crown and the police may not be aware of his existence at all. Of
course, prior to making a decision as to whether to request additional material, the paralegal should thoroughly interview the client about
the details of the case and the evidence, as well as speak to other witnesses.
 Crown Pre-Trial Conference (CPT)

Crown Pre-Trial Conference (CPT) - A meeting between the Crown and the fence to
discuss the evidence, the position of the parties, play negotiations, or any other
issues related to a charge

Before the CPT the paralegal should have reviewed the disclosure thoroughly and
assessed the case.

Other things that should be contemplated prior to the Pre-trial are:

The strengths and weaknesses of the Crowns case

Identifying the legal issues
Identifying pre-trial applications that may be brought by the crown
Identifying potential defences and their merits
determining whether an interpreter is required, either for the accused or for any
defence witnesses.
estimate the amount of time required at Trial for the client's case.
 Crown Pre-Trial Conference (CPT)

Before the paralegal conducts the Crown pretrial they should meet with your client and review the
charges and disclosure. Also to be discussed is what, if any, resolution the client may be agreeable to,
to aid in the paralegal's pre-trial discussions. To help the client make this decision the paralegal should
provide them with the strengths and weaknesses of the Crown's case and any possible defences that
the paralegal has identified.

All options should be investigated by the paralegal, and the client should be advised of the pros and
cons of each option. Any mitigating factors available to the client should be investigated fully such as
the client's background, support they may have in the community, reasons for them offending, their
family situation such as if they are married have any dependence, and employment status.

The paralegal should be prepared to recommend a course of action to the client and obtain clear
written instructions from the client as to how to proceed. Finally, the paralegal should consider
creating a checklist to ensure that all matters that need to be disclosed to the Crown are raised at the
Crown pretrial conference.

 Crown Pre-Trial Conference (CPT)

A Crown pre-trial conference is an informal meeting between the Crown and the defence paralegal. The client is
not present at this conference. Crown pre-trial meetings are typically held after disclosure has been provided to
the defence and in advance of scheduling a pre-trial conference with the judge. The paralegal should bring the
client's file and be prepared to take notes during the meeting. It should be noted that a very common form of
crown pre-trial is by telephone.

The Crown will likely indicate how it will be proceeding against the accused, either by summary conviction or by
indictment, as well as the penalty that the Crown will be seeking, either on a guilty plea or after trial. During these
pre-negotiations, the defence may wish to canvas whether the Crown will agree to alternative measures such as
the diversion program, a peace bond resolution, or an alternative to a guilty plea.

It should be noted that the defence is not required to advise the crown as the names of the defence witnesses
will be called a trial. However, if the defence will be calling an alibi witness, the defence should identify this
witness so the Crown may investigate the alibi. If this alibi witness is not disclosed to the Crown, they may
successfully request an adjournment at Trial.

 Crown Pre-Trial Conference (CPT)

Pursuant to Section 657.3(3)(a) of the Criminal Code, both the Crown and the defence
must provide notice to the opposing party if either wishes to call an expert witness at
trial. The party calling an expert must provide at least 30 days' notice prior to the trial or
within the time set by the judge.
The notice includes:
The name of the expert,
A description of their expertise,
A statement of their qualifications.

If the defence wishes to call an expert witness at trial, the crown must be provided with
a curriculum vitae, which is a brief account of a person's education, qualifications, and
previous experience, so that the crown may investigate the expert's qualifications.
Failure to provide the crown with the expert witnesses' information can also result in a
trial being adjourned. If the crown is calling the expert witness they must also provide
the defence with a review of the expert's qualifications in a timely manner.

 Crown Pre-Trial Conference (CPT)

Agreed Statement Of Facts - A list of facts about the case that all parties agree on. For example, the parties may agree that
the complainant was fired on a particular date, or would have been earning a certain amount of money if he or she had
been promoted.

The defence paralegal should be prepared to discuss any matters that are not in dispute and that may be proven by way of
an agreed statement of facts or formal admissions. Of course, before making any agreements, the client must be informed
and provide clear written instructions on what facts are being agreed upon

If the Crown offers a position on the resolution, it must be conveyed to the client first. The paralegal should also clearly
record the Crown's position on sentencing. The crown may suggest that a joint recommendation between the crown and
defence be offered to the court, or the Crown may wish to leave it as an open sentencing submission.

Another option for a joint recommendation is to read in an Agreed Statement of Facts between the Crown counsel under
the fence. In either case, the paralegal might advise the client that the judge is not compelled to accept a joint submission.

After the Crown Pre-trial conference, a follow-up letter or email should be sent to the Crown outlining and confirming any
concessions and or agreements made during the CPT. Also, any outstanding disclosure items discussed during the CPT
should be a part of that letter or email. The paralegal should meet with the client to review the outcomes of the CPT and get
further instructions, preferably in writing.
 Judicial Pre-Trial Conference (JPT)

Judicial Pre-Trial Conference (JPT) - A meeting between the Judge who will NOT be presiding at the trial, the Crown is also in attendance as well as the defence.
The meeting is to discuss matters related to the trial such as disclosure, applications (if any), witnesses and other legal issues

(NOTE)
The Judge who conducts the JPT will NOT be the Trial Judge) This is to ensure that the crown and defence are able to discuss the evidence and the strengths and
weaknesses of the case freely.

Section 625.1(1) of the Criminal Code deals with a Judicial Pre-Trial, most commonly referred to in its abbreviated form as JPT. The Code stipulates that either the
Crown or the accused may request the conference. Typically, when the trial is expected to take more than one full day, a JPT conference is mandatory.

Rule 4.2 of the Criminal Rules of the Ontario Court of Justice deals with JPTs. The Rules allow for a Judicial Pre-Trial to take place by telephone, or other forms of
communication technology,
Rule 4.2 also requires the crown to provide a copy of the synopsis to the Justice prior to the JP. If the defence wishes to submit any materials, they must be
provided at least THREE DAYS PRIOR to the JPT.

Some of the issues that may be discussed at the JPT include, but are not limited to:

Confirming Trial time estimates

Setting timeline for application hearings to occur
Setting timelines for the completion of any outstanding disclosure
Any possibilities of a path of resolving the matter
Confirmation of any agreements or admissions made by the Crown or defence at the Crown Pre-Trial (CPT)

NOTE
Confirmation of any agreements or admissions made by the Crown or defence at the JPT will be recorded, transcribed and attached to the information for the trial
Judge.

See Page 270 for Rule 4.2 (Appendix D)

 Judicial Pre-Trial Conference (JPT)

Prior to the JPT, the paralegal should meet with the client again to discuss the disclosure material, which should be
more substantive at this stage. The paralegal should review the strengths and weaknesses of the Crown's case, as
well as the options available to the client and the implications of each option.

If the client is considering a guilty plea or attempting to persuade the Crown to withdraw the charge, then it is helpful
to obtain letters of support from family, friends and community members. And AS USUAL, clear and concise written
instructions, signed and dated by the client confirming the option they wish to take, is VITAL.

Pursuant to Rule 4.2, the JPT conference provides an opportunity for the defence paralegal to discuss whether there
is a Reasonable Prospect of Conviction, commonly referred to in its abbreviated form RPC.

The paralegal may also:

Raise mitigating facts on behalf of the client

Case law that is beneficial to the client
Provide copies of reference letters from the client's employer and community support

The JPT should be viewed as another opportunity to advocate on behalf of the client. If there are any issues that may
be agreed upon at trial, they should be raised before the Judge.
 Judicial Pre-Trial Conference (JPT)
Matters that are specific to the trial, such as:

The admissibility of evidence gathered by the police, &

The Voluntariness of any statements given by the accused

These should also be raised at the JPT to ensure the trial estimates are a proper representation of the time
needed to fully hear the case. The defence paralegal should indicate which police witnesses the defence
wishes to have available at the trial in case they are not under subpoena by the Crown.

After the JPT, the paralegal should draft a memorandum setting out the issues discussed and the position of
the Crown and JPT Judge. A letter should be sent to the Crown to confirm its position on various issues that
were settled at the JPT.

Finally, meeting with the client and discussing the outcome of the JPT is crucial. It's essential to get clear and
concise client instructions indicating they agree to proceed in the manner in which the paralegal has suggested.

REMEMBER
An informed client not only satisfies your professional obligations but also avoids future issues or headaches.

 Diversion Program
Diversion Program - An alternative to a criminal proceeding, typically available to an accused person who does not have a criminal record and who
is charged with a minor offence

Community Justice Worker - a person who attends court on a regular basis, receives referrals from the crown for Diversion and assists the accused
in registering and fulfilling the conditions of the Diversion program. These people are commonly referred to as the Diversion Rep.

Diversion Programs are alternatives to prosecution. The rationale behind Diversion is that not all criminal charges need to be dealt with through the
court process and criminal prosecution. The Crown determines which cases are eligible for diversion since it is the Crown's discretion if a matter is
prosecuted or not. MOST if not ALL Diversion Program participants have their charges withdrawn upon completion of the requirements set out by
the Diversion Rep.

Cases may be Pre-Approved for the Diversion Program by the Crown before the information is laid before the courts. In other situations, the charge
screening form may indicate that the case has been pre-approved for diversion. In some regions, diversion may be referred to as "Alternative
Measures", "Direct Accountability", or whatever the regional name for their Diversion Program is.

Agreeing to the Diversion Program does not involve an admission of guilt regarding the offence. However, there are consequences that stem from
it. An accused person must accept responsibility for the charge and must be willing to comply with the terms of the diversion program.

Some examples of the types of work done by the accused in a Diversion Program are:
Community service work
Counselling sessions
Anger management
Alcohol counselling/substance-abuse counselling
Paying a restitution amount
Making a charitable donation to a nonprofit organization

 Diversion Program

It is very important to follow through with the terms of the Diversion Program since the Crown has the
discretion of withdrawing the offer if the accused is delaying or not participating in a satisfying manner. If
there are legitimate reasons for the delay in finishing the program, the defence paralegal should provide an
update to the Crown.

Once the conditions have been satisfied, the crown may stay or withdraw the charge. If the charges are
stayed or withdrawn, it does not result in a criminal conviction on the cues record. Therefore, participating
in and completing a Diversion Program is beneficial to the accused.

The Crown has a continuing obligation to assess whether there is a reasonable likelihood of
conviction, especially if there are any frailties and the prosecution is exacerbated by outside
factors such as COVID-19.

See Page 123 for a discussion of the impact Covid-19 has had on the Diversion Process.
 Peace Bonds (Section 810 Recognizance Orders)

Peace Bond - A recognizance order with a condition that the court orders an accused person to abide by when your complaint has reason to fear
the accused, commonly used as a resolution.

Intimate Partner - includes a person's current or former spouse, common-law partner, and/or dating partner.

There are two types of piece bonds that may be available:

Common Law Peace bond - Comes from the authority of a judge to order someone to enter into a Peace bond when they are satisfied or the
person has done something that justifies an apprehension or concern that they may breach the peace in the future. A common law peace bond
does not require that the complaint be fearful of the accused and the duration of the order may last for more than 12 months

Section 810 Peace bond - provided when a person fears that another person will cause personal injury to them, themselves or to an intimate
partner or child, or will damage their property. A person may also seek disorder if they fear another person will knowingly publish, distribute,
transmit, sell, make available, or advertise an intimate image of themselves without their consent. The maximum duration of an order under
this section is a period of 12 months.

Under Section 810(3)(a), the court may order the defendant to enter into a Peace bond with the following common conditions:

Keep the peace and be of good behaviour

Abide by a weapons prohibition
Surrender any weapons and authorizations, licenses, and registrations pertaining to the weapons
Not have any direct or indirect contact or communication with the complainant, their intimate partner, or children
Not attend at or within a specified distance of where the complainant, their intimate partner or their children may be found
Abstain from the consumption of non-prescription drugs, alcohol, or other intoxicating substances
Provide a sample of bodily substance upon demand of a police officer or probation officer (drug Tests)

 Peace Bonds (Section 810 Recognizance Orders)

There is no jurisdiction for a court order of youth to enter into a Section 810 recognizance.

Other forms of recognizance, which are specific to certain types of offences, are also available under the Code.
Such as when a complainant is fearful of forced marriage or allegations of intimidation of a Justice system
participant or journalist.

Or for any of the following offences:

Criminal organization offences
Terrorism offences
Sexual offences
Serious personal injury offences

See Page 126 for the case - Law Society of Upper Canada (Now called the Law Society of
Ontario) V Loria for how the courts deal with a LICENSEE whose criminal charges are
dealt with by way of Peace Bond.