When you’re charged with a crime in Canada you have the right to remain silent and that right goes right up until the trial and right to the end of the trial. For example you never have to testify, you don’t have to provide the Crown with your side of the story, or evidence.
Now like any rule there is exceptions to that rule and I’d like to go over a few of the exceptions in Canadian law. The first one is when you have an alibi. Now an alibi means you’ve been charged with an offence but you know you were elsewhere in Canada or the world or Ontario and you can prove that. For example you were in Hawaii at the time of a break and enter. Now when you have an alibi you have to provide that. If you want to testify at trial and for it to be accepted by the Judge, you have to provide the Crown with evidence of that alibi at a relatively early opportunity. You have to give them an opportunity to investigate that. So clearly if you’ve got a great alibi and you’ve got plane tickets or photos of you in Hawaii at the time, you are going to want to present that early. Now it doesn’t necessarily have to be presented right away but it has to be presented in enough of a timely way so the Crown can investigate before your trial.
So there’s one example. Another example is when you want to bring what’s called a constitutional argument. Under the Canadian Charter of Rights and Freedoms we have many freedoms in Canada and one of those for example is a right to counsel. Another is a right to be secure from unreasonable search and seizure. If you want to bring a Charter argument at the trial it’s part of the trial process but it’s not a trial issue really. It’s a procedure that takes place within the context of the trial or before the trial. In order to do that you have to serve the Crown with notice of that Charter application in detail, your lawyer does, doing detailed factums and setting out the facts of the Charter. Typically Charters have to be proven to a balance of probability. The onus is the victim first then you have to establish that. So there’s another example of what you have to disclose in advance.
Other situations are if you want to apply for other Third Party Records’ Application. That is, you have counselling records that you are aware that the victim has or are in possession of them. You have to bring an application to try and introduce that and the Judge will determine relevancy and you have to set out some facts that will establish whether they are relevant. So you’re disclosing some stuff to the Crown that you might not normally want to by the way to establish those grounds. Recently as really prompted by many trials including the Jian Ghomeshi trial if you’re in possession of text records, cell phone records, Facebook that type of thing that help you of the victim for example and you want to use them you have to bring an application in advance of the trial to introduce those and the Judge will decide whether they are relevant. What’s the problem with that? Well now you lose the element of surprise. You can’t just surprise the victim on the stand that she said something or he said something in a text. They might be able to explain why they said something. For example they could have said “I lied, you know I’m out to get you. I lied in a text.” Well maybe they can now explain that away in some fashion whereas before as in the Jian Ghomeshi trial he was able to confront witnesses right on the spot. You’ve got the elements of surprise. They don’t have a prepared statement.
So these are some of the issues. You’ve got alibi and third party records. There’s also what’s called a Seaboyer Application. Now in a sexual assault matter if you want to introduce prior sexual conduct of the complainant, for example, you’ve had a long standing relationship with them. If you want to present that you need to bring an application there as well. Again you’ve got to disclose part of your defence. This is particularly applicable when you want to bring a mistaken belief of consent defence. Again it’s required but it is problematic because you have to set out your defence. Why is it relevant and you lose the element of surprise but it’s a necessary thing in many trials.
So those are five examples of what I call a reverse disclose where you’ve got to disclose certain things to the Crown in advance of the trial but I harken back to the general rule. In most cases you don’t have to disclose a thing. You just stay quiet about your defence and you present it at the trial except for these exceptions.