Is There An Implied Undertaking Rule for Criminal Defence Counsel With Respect to Disclosure?
The Court of Appeal in Wagg outlined strong policy considerations in support of such a rule. Having regard to the decision to implement the screening mechanism process and in the absence of submissions from other interested parties, the Court felt it would not be appropriate to reach a decision on the issue. However, unlike the circumstances in Wagg (or, perhaps more appropriately, to provide a basis for resolving the question of implied undertakings with respect to criminal disclosure), Crown offices in Ontario attach a notice to written disclosure provided either to the accused or his or her counsel.
