Type of document: Prosecution Directive
Effective date: November 14, 2017

The Prosecutor must provide to the accused all information in her possession relating to the charges against the accused unless it is clearly irrelevant. Some information is exempt from disclosure because it is protected by privilege. The Prosecutor has discretion as to the timing of disclosure and the form it will take [e.g. hard copy, electronic]. Disclosure of all relevant information is vital to ensuring that the trial process is fair to all those accused of criminal offences.

Any information that points to either guilt or innocence that could be used by the accused in meeting the case for the prosecution, advancing a defence, or otherwise determining how to conduct a defence must be disclosed. The Prosecutor’s duty to disclose is ongoing throughout the trial and appeal process and continues after those processes have concluded.

Duty to inquire

Where a Prosecutor has a reasonable basis to believe that the police or other government entity may be in possession of material or information that could reasonably impact the result of the prosecution, the Prosecutor has a duty to make inquiries of these parties for the purpose of obtaining the material. If the police or other government entity declines to provide the material, the accused may seek a court order for the material to be provided. The Prosecutor does not have a duty to inquire where there is not a reasonable basis for the request or there is no likelihood of relevance.


The Prosecutor is not obliged to disclose information that is irrelevant, protected by privilege or that is recognized at common law or by statute as an exception to the duty to disclose. In those cases the Prosecutor must not disclose the information without a court order. The material that falls within this category includes, but is not restricted to:

  1. information that may identify a confidential informer (see Confidential Informers Directive)
  2. information subject to solicitor-client privilege
  3. information subject to work-product privilege
  4. information that may jeopardize ongoing police investigations or reveal confidential police investigative techniques
  5. information that may jeopardize the safety of a witness or another third party
  6. private information i.e. medical records, personal diaries, cell phones or therapeutic records (e.g. see Sexual Offences against Adults Directive).

There may be occasions when information in the possession of the prosecution does not fall within its defined disclosure obligations or an existing judicially or statutorily-recognized exception. In those cases, prior to providing, withholding or delaying disclosure, the Prosecutor must consult with her Crown Attorney or designate, who must, in turn, consult with the Director.

Prosecutorial discretion

The Prosecutor has discretion as to the timing and form of disclosure. While the law provides for delayed disclosure in limited circumstances, such delays should be rare and should never be for tactical reasons. The Prosecutor should only delay providing disclosure after consultation with her Crown Attorney. The safety of witnesses, the protection of ongoing investigations or privacy concerns could justify a delay in disclosure or a variation in the form that the information is provided.

Child pornography

Possession of child pornography is a criminal offence. Police shall remain the custodians of all seized images of child pornography. Disclosure of these images is made by invitation to counsel to view the images in a secure, private location. Requests for electronic copies of the images must be declined. Those images may be provided electronically only pursuant to a court order with a corresponding sealing order.

Reference should be made to the Internet Child Exploitation Directive.

Audio or Video material depicting or recounting child abuse or a sexual offence

Audio or video material depicting or recounting a sexual offence or crime of child abuse warrants additional precautions with respect to its access.

This audio or video material may be disclosed only upon receipt of a signed undertaking by counsel to use the material for the purpose of making full answer and defence in the particular case. If counsel refuses to provide this undertaking, the Prosecutor may impose conditions on viewing the material.

Audio or video material depicting or recounting child abuse or a sexual offence must not be provided to an unrepresented accused without a court order. The court order should direct the Prosecutor to provide the material and impose conditions on its possession by the accused (e.g. no copying or disseminating the material). In absence of a court order, arrangements should be made to permit the unrepresented accused to review the audio or video material.

Youth Criminal Justice Act and Young Offender Act records

Access to records pertaining to youth involved in criminal justice is governed by the Youth Criminal Justice Act and the Young Offender Act. These records should only be disclosed in accordance with the relevant legislation.

Reference should be made to the Youth Criminal Justice: Court Practices and Procedures Directive.