TYPES OF RIGHTS AVAILABLE TO THE ACCUSED
Right to Full Answer and Defence
WHAT IS THIS RIGHT?
Full answer and defence is composed of three parts. First, the ability to examine the evidence of the Crown Prosecution. Second, it is the right to adduce all evidence not known to be false that may raise a conviction of innocence or reasonable doubt of guilt. Third, it is the right to make submissions to the trier of fact (judge or jury) on the law and on the evidence. Fourth, the right to full answer and defence includes the right to full cross-examination of prosecution witnesses. Fifth, it includes the right to call witnesses and the accused to testify, Sixth, includes the right not to be taken by surprise by newly discovered evidence or evidence not disclosed at the preliminary inquiry. Seventh, includes the right to present argument. Eighth, includes the right not to be unduly interfered with by the trial judge by excessive judicial cross-examination of witnesses. Ninth, includes the disclosure of the contents of a sealed wiretap packet has also been found to be necessary for an accused to make full answer and defence. Finally, it includes the right to the assistance of able and effective counsel.
WHEN DO I HAVE THIS RIGHT?
An accused is entitled, after the close of the case for the prosecution, to make full answer and defence personally or by counsel.
WHAT HAPPENS IF THIS RIGHT IS VIOLATED?
A violation of the right may entitle the accused to a stay of proceedings (meaning your case is over*(albeit exceptions)) if it is one of those clearest of cases where a stay is the only appropriate remedy. An order for production (of documents or other evidence) or an adjournment (when the trial date gets moved forward) is more often the appropriate remedy at trial but is no longer available on an appeal from conviction.
COLOUR OF RIGHT
WHAT IS THIS RIGHT?
It is essentially a mistake of fact; everyone who is in possession of personal property, but does not claim it as of right or does not act under the authority of a person who claims it as of right, is not justified or protected from criminal responsibility for defending such possession against a person who is entitled by law to possession of it.
Although the Canadian Charter of Rights and Freedoms does not provide any true defences to a criminal charge, a court may provide a remedy for breach of a Charter right that effectively disposes of the charge. In circumstances where there has been a denial or infringement of a Charter right or freedom, the affected party may apply for dismissal of the charge, a stay of proceedings, costs or a reduction in sentence.