When you’re charged with a crime in Canada, you have the right to remain silent, and that right extends up until the trial and to the end of the trial.
For example, you never have to testify, provide the Crown with your side of the story, or evidence.
However, like any rule, there are exceptions in Canadian law. Let’s explore a few of these exceptions:
1. Alibi Defence
An alibi occurs when you’ve been charged with a criminal offence, but you can prove you were elsewhere, whether in Canada, the world, or Ontario. If you have an alibi, you must provide the Crown an outline of the alibi evidence relatively early in the legal process. This gives them an opportunity to investigate before the trial. While it doesn’t have to be presented immediately, it should be provided sufficiently in advance of the trial for the police to conduct a proper investigation.
2. Constitutional Arguments
Under the Canadian Charter of Rights and Freedoms, Canadians have various freedoms. If you want to bring a Charter argument before or during the trial (e.g., related to the right to counsel, protection from unreasonable search and seizure, etc.), your lawyer must serve the Crown with detailed notice of the Charter application at least 30-60 days before the trial commences .This involves submitting detailed facts outlining the facts and the law supporting the Charter application.
3. Third Party Records Application
When applying for Third Party Records, such as counseling records of the victim, you must bring an application to introduce them well in advance of the trial commencing. The Judge will determine the relevance of the counselling records or other third party records in question, and in this process, you are required to disclose information to the Crown that establishes the factual and legal grounds for introducing these records.
4. Text Records and Social Media
If you’re in possession of text records, cell phone records, or social media that may help your case, an application must be made in advance of the trial to introduce them. Again, the trial judge will review the records and determine if they are relevant and admissible as evidence which can be used at the trial. This, however, eliminates the element of surprise during the trial.
5. Seaboyer Application
In sexual assault cases, if you want to introduce the prior sexual conduct of the complainant, a Seaboyer Application is required. This involves setting out your defence, explaining the relevance of the prior sexual activity, and disclosing part of your defence to the Crown. Again, this compromises the strategic element of surprise.
These examples illustrate instances where the defence is required to disclose certain information to the Crown in advance of the trial. However, it’s crucial to note that these are exceptions to the general rule where the defence can normally remain silent until the end of the trial.