Defence Disclosure: Is the Right to Full Answer the Right to Ambush

Abstract

In Canada, a complete set of codified defence disclosure rules does not exist. Rather, these rules exist in piecemeal form, some being statutory, some common law and others in place for the sake of expedience. Like the Crown, the defence is required to disclose at the investigative, pretrial and trial stages. Although defence disclosure appears to run contrary to the accused's right to silence and the right to make full answer and defence, it is emphasized that these rights are not absolute. They must be assessed against other Charter principles. The accused, for example, rarely remains silent until the final stages of the trial to subsequently "ambush " the Crown with his or her defence. The "ambush" defence, perceived as a strategic advantage, denies fundamental principles of fairness and ultimately hinders the search for truth. The author examines the numerous benefits of codifying the procedural rules. A clear statement of disclosure obligations, for example, would avoid lengthy debates over disclosure rules and thus ultimately lead to quicker resolution of the real issue. Further, should they operate unfairly against either party, the court would be in a position to waive them. Due to the many advantages and the corresponding lack of disadvantages such legislation would confer, it is strongly urged that a set of procedural disclosure rules be statutorily enacted.