Right to Make Full Answer and Defence

From Criminal Law Notebook
This page was last substantively updated or reviewed January 2021. (Rev. # 89562)

General Principles

See also: Principles of Fundamental Justice and Crown Duty to Disclose

Anyone accused of a criminal charge has the right to know the case against them and put forward a defence. In addition to being a principle of fundamental justice, the right to Full Answer and Defence (FAD) is protected by the right to a fair trial under section 11(d) of the Charter.[1]

Purpose of Full Answer and Defence

Its purpose is to "ensure that the innocent are not convicted."[2]

Meaning of Right to Full Answer and Defence

"Full answer and defence" (FAD) encompasses a number of things, including the right to counsel (also see section 10), the right to examine witnesses, and most importantly, the right to full disclosure by the Crown.[3]

Right to FAD is not so broad as to give "right to pursue every conceivable tactic to be used in defending oneself against criminal prosecution."[4] Nor is it so broad as to create an entitlement to "rules and procedures most likely to result in a finding of innocence". It entitles an accused to "rules and procedures which are fair in the manner in which they enable the accused to defend against and answer the Crown's case."[5]

The impairment of full answer and defence is not limited to the accused's ability to respond to the merits of the case but also the ability to make "process-oriented" challenge to the proceedings.[6]

This right does not include the right to "defend by ambush."[7]

Right to a Fair Trial

The right to a fair trial and the principles of fundamental justice "do not guarantee defence counsel the right to precisely the same privileges and procedures as the Crown and the police."[8]

A fair trial must not only be fair but also "one which is perceived to have been conducted fairly."[9]

A fair trial does not always require an accused to physically confront a witness in person.[10]

Consideration of whether an accused's rights have been infringed "encompasses ... considerations, such as the rights of witnesses,...the rights of accused and courts' duties to ascertain the truth". It also includes interests of society.[11]

  1. R v Quintero-Gelvez, 2019 ABCA 17 (CanLII), per curiam, at para 7 ("The principles of fundamental justice include the right to a fair trial and to make full answer and defence. )
  2. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326, per Sopinka J
  3. Stinchcombe, ibid.
  4. R v Quesnelle, 2014 SCC 46 (CanLII), [2014] 2 SCR 390, per Karakatsanis J, at para 64
  5. R v Rose, 1998 CanLII 768 (SCC), 129 CCC (3d) 449, per Cory, Iacobucci and Bastarache JJ, at p. 99
  6. R v Sandeson, 2020 NSCA 47 (CanLII), per Farrar JA
  7. R v Darrach, 2000 SCC 46 (CanLII), [2000] 2 SCR 443, at para 55
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ, at paras 74, 90
    R v RV, 2019 SCC 41 (CanLII), [2019] 3 SCR 237, per Karakatsanis J, at paras 33 to 41
    R v Shearing, 2002 SCC 58 (CanLII), [2002] 3 SCR 33, per Binnie J, at para 76
  8. Quesnelle, supra, at para 64
    R v Mills, 1999 CanLII 637 (SCC), [1999] 3 SCR 668, per McLachlin and Iacobucci JJ
  9. R v Switzer, 2014 ABCA 129 (CanLII), 572 AR 311, per curiam, at para 5
    Quintero-Gelvez, supra, at para 7
  10. R v Schertzer, 2010 ONSC 6686 (CanLII), per Pardu J, at para 37
  11. R v Levogiannis, 1993 CanLII 47 (SCC), [1993] 4 SCR 475, per L'Heureux-Dube J

History

The right to full answer and defence pre-existed the Charter. The Criminal Code, 1953-54 (Can.), c. 51, in contained s. 709(1) which stated:

Evidence on Commission
Order appointing commissioner

709 (1) A party to proceedings by way of indictment or summary conviction may apply for an order appointing a commissioner to take the evidence of a witness who

(a) is, by reason of
(i) physical disability arising out of illness, or
(ii) any other good and sufficient cause,
not likely to be able to attend at the time the trial is held; or
(b) is out of Canada.
Idem

(2) A decision under subsection (1) [order appointing commissioner] is deemed to have been made at the trial held in relation to the proceedings mentioned in that subsection.

R.S., 1985, c. C-46, s. 709; R.S., 1985, c. 27 (1st Supp.), s. 150; 1994, c. 44, s. 72.
[annotation(s) added]

CCC (CanLII), (DOJ)

This right is related "solely to the procedure at trial."[1]

  1. R v O'Connor, 1966 CanLII 12 (SCC), [1966] SCR 619, per Ritchie J

Right to Disclosure

See also: Disclosure

The right to disclosure is a principle of fundamental justice under s. 7 of the Charter and is a component of the broader right to full answer and defence.[1]

The O'Connor test of producing records that are "likely relevant" is designed to avoid fishing expeditions and to capture records that "may assist" in making FAD.[2]

  1. R v Carosella, 1997 CanLII 402 (SCC), [1997] 1 SCR 80, per Sopinka J, at para 37 ("The right to disclosure of material which meets the Stinchcombe threshold is one of the components of the right to make full answer and defence which in turn is a principle of fundamental justice embraced by s. 7 of the Charter.")
  2. R v Gubbins, 2018 SCC 44 (CanLII), [2018] 3 SCR 35, per Rowe J (8:1), at paras 26 to 29

Right to Cross-Examine Witnesses

See also: Cross-Examinations

The right to cross-examine witnesses is a principle of fundamental justice and is necessary for trial fairness.[1]

The right is protected by s. 7 and 11(d) of the Charter.[2]

The rights relating to the presumption of innocence and standard of proof beyond beyond a reasonable doubt entitles the accused "to employ every legitimate means of testing the evidence called by the Crown to negative that presumption and in my opinion this includes the right to explore all circumstances capable of indicating that any of the prosecution witnesses had a motive for favouring the Crown."[3]

In cases that turn on credibility will entitle an enhanced right to fully cross-examine witnesses.[4]

Where there is no valid reason to limit cross-examination, any limitation imposed will result in a denial of Full Answer and Defence.[5]

A Child Witness Unresponsive to Questioning

When considering whether a child's unwillingness to give evidence in trial is sufficient to render the trial unfair and impact the right to full answer and defence, the court should consider:[6]

  1. the reason for unresponsiveness;
  2. the impact of the unresponsiveness;
  3. possibilities of ameliorative action.
  1. R v Seaboyer, 1991 CanLII 76 (SCC), [1991] 2 SCR 577, per McLachlin J
    Titus v The Queen, 1983 CanLII 49 (SCC), [1983] 1 SCR 259, per Ritchie J, at pp. 263-64
  2. R v Osolin, 1993 CanLII 54 (SCC), [1993] 4 SCR 595, per Cory J
  3. Titus, supra, at p. 263
  4. R v Andmalik (1984), 6 OAC 143(*no CanLII links) , at p. 144
    R v Giffin, 1986 ABCA 107 (CanLII), 69 AR 158, per Kerans JA, at p. 159 ("the events about which counsel sought to cross-examine were relevant on the question of the credibility of the witness .... The accused in this case cannot be said to have had an opportunity for a fair answer and defence when he was not permitted to ask them.")
    R v Wallick (1990), 69 Man. R. (2d) 310 (CA)(*no CanLII links) where, at p. 311 ("Cross-examination is a most powerful weapon of the defence, particularly when the entire case turns on credibility of the witnesses. An accused in a criminal case has the right of cross-examination in the fullest and widest sense of the word as long as he does not abuse that right. Any improper interference with the right is an error which will result in the conviction being quashed.")
  5. R v Quintero-Gelvez, 2019 ABCA 17 (CanLII), per curiam, at para 9
  6. R v TH, 2017 ONCA 485 (CanLII), per MacPherson JA, at para 38
    R v Hart, 1999 NSCA 45 (CanLII), 135 CCC (3d) 377, per Cromwell JA