Right to Make Full Answer and Defence

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General Principles

See also: Principles of Fundamental Justice

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, this right is also protected by the right to a fair trial under section 11(d) of the Charter.

Its purpose is to "ensure that the innocent are not convicted".[1]

"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.[2]

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".[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 defnee against and answer the Crown's case."[5]

A fair trial does not always require a an accused to physically confront a witness in person.[6]

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.[7]

  1. R v Stinchcombe, 1991 CanLII 45 (SCC), [1991] 3 SCR 326
  2. Stinchcombe, ibid.
  3. R v Quesnelle, [2014] 2 SCR 390, 2014 SCC 46 (CanLII), at para 64
    R v Mills, [1999] 3 SCR 668, 1999 CanLII 637 (SCC)
  4. Quesnelle at para 64
  5. R v Rose (1998), 129 CCC (3d) 449 (SCC) at p. 99
  6. R v Schertzer, 2010 ONSC 6686 (CanLII), per Pardu J at para 37
  7. R v Levogiannis, [1993] 4 SCR 475, 1993 CanLII 47 (SCC), 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:

709(1) The prosecutor is entitled personally to conduct his case and the defendant is entitled to make his full answer and defence.
(2) The prosecutor or defendant as the case may be may examine and cross-examine witnesses personally or by counsel or agent.
(3) Every witness at a trial in proceedings in which this Part applies shall be examined under oath.


CCC

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

Right to Disclosure

See also: Disclosure

The right to disclosure is a principle of fundamental justice under s. 7 oft the Charter and is a component of the broader right to full answer and defence.[2]

  1. R v O'Connor, [1966] SCR 619, 1966 CanLII 12 (SCC)
  2. R v Carosella, [1997] 1 SCR 80, 1997 CanLII 402 (SCC), 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.")

Right to Cross-Examine Witnesses

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 entitled an enhanced right to fully cross examine witnesses.[4]

A Child Witness Unresponsive to Questioning
When considering whether 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:[5]

  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 S.C.R. 577
    Titus v. The Queen, 1983 CanLII 49 (SCC), [1983] 1 S.C.R. 259, at pp. 263-64
  2. R v Osolin, [1993] 4 SCR 595, 1993 CanLII 54 (SCC),
  3. Titus, supra at p. 263
  4. R v Andmalik (1984), 6 O.A.C. 143, at p. 144
    R v Giffin (1986), 1986 ABCA 107 (CanLII), 69 A.R. 158, 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 (C.A.), 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 TH, 2017 ONCA 485 (CanLII), per MacPherson JA, at para 38
    R v Hart, (1999), 1999 NSCA 45 (CanLII) per Cromwell JA