Charter Roadblocks to Defence Disclosure

Abstract

This article examines the issue of compelled defence disclosure in light of the framework for discovery set out in Stinchcombe v. The Queen and s. 7 of the Charter. The author contends that the introduction of compelled defence disclosure into the Canadian criminal law system would be inappropriate given the current s. 7 Charter analysis. The principles of Crown disclosure gleaned from Stinchcombe and current rationales for imposing obligations of disclosure on the defence are reviewed. The impact upon the accused's right to silence, right to make full answer and defence, and the right against self-incrimination, is used to illustrate the inadequacies of the current justifications for compelled defence disclosure. The author concludes that while incremental expansion of particular existing defence obligations to disclose may be appropriate, it appears that the constitutional barriers to implementing full reciprocal defence disclosure in Canada are complete and just.