Right to Make Full Answer and Defence

This page was last substantively updated or reviewed January 2021. (Rev. # 95945)

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• < Principles of Fundamental Justice

General Principles

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.

Purpose of Full Answer and Defence

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

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.

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." 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."

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.

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

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."

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

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

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.

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."

Right to 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.

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.

Right to Cross-Examine Witnesses

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

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

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."

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

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

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:

1. the reason for unresponsiveness;
2. the impact of the unresponsiveness;
3. possibilities of ameliorative action.