One of the components of the right to a fair trial and an element of criminal procedure is what is sometimes described as 'equality of arms' or 'fair play'. The idea is that adversarialism requires a certain equality between the accusation and the defence - in fact that fairness to the defendant requires fairness between the Crown and the defence. This equality is a normative rather than a de facto equality. In practice, bear in mind that the State often has a certain advantage over the defence in terms of resources and perhaps a head start on the investigation. At the same time, the standard of proof for a conviction means that there is an asymmetry with the defence.
Crucial to ensuring equality is the existence of obligations of disclosure. This is an idea of fairly recent vintage, but it is now increasingly the case that the merits of 'trial by ambush' are seen as limited, especially in relation to the rights of the accused. It takes time to prepare a defence and to learn the case against one's client in Court surely would not allow for a maximization of defence efforts. Disclosure therefore allows the defendant to make a full defence, but it also reflects the fact that the police is not working for the Crown as much as for the public interest. The fruits of the investigation belong to the defence as much as the accusation, even though the Crown will have been made aware of them first. Moreover, disclosure is based on the ethical obligations of the Crown and notably the fact that the goal of the trial is not to secure a conviction but to lay before the jury all credible evidence.
The recognition of an obligation of disclosure was an innovation of the Courts themselves, Parliament having been loathe to introduce a general regime of disclosure. There was initially some resistance to it. It was argued that it would increase delays or allow witnesses to revise their testimony on the basis of their earlier statements to the police. None of these arguments have stood up to scrutiny.
The duty of the Crown to disclose material in its possession is broad. It includes any material that it intends to use at trial. However that obligation is still subject to discretion and there are some limitations, such as the need to protect police informers for example. Note that the Crown should err on the side of safety, however. It is generally considered that the identity of informers will have to be released. The Crown's discretion where the rights of the defence are affected merely relates to such things as timing and the form of the disclosure.
A key issue is whether defence should have an obligation of disclosure. The traditional answer is in the negative, the main reason being that defence should not have to make the Crown's burden easier. However even there, one sees a trend towards a potential limitation of that practice. For example, the defence has to give notice of the fact that it intends to introduce certain defences.
Class Preparation:
Brennan, William J. Jr. “The Criminal Prosecution: Sporting Event or Quest for Truth.” Washington University Law Quarterly 1963 (1963): 279–95, read pages 282-295.
Public Prosecution Service of Canada, Principles of Disclosure
R. v. Stinchcombe, [1991] 3 SCR 326, 1991 CanLII 45 (SCC)
R. v. O'Connor, [1995] 4 S.C.R. 411 (extracts)
Leblanc, Daniel, “Government Won’t Modify Evidence Disclosure Rules”, Globe and Mail, 6 January 2011.
Fein, Sean, “How the Defence Ended up in the Driver’s Seat in the Ghomeshi Trial”, The Globe and Mail, 12 February 2016.
Further Readings:
Clayton, Richard, and Hugh Tomlinson. Fair Trial Rights. Oxford University Press, USA, 2010.
Caianiello, Michele. “Law of Evidence at the International Criminal Court: Blending Accusatorial and Inquisitorial Models,” 2011. https://papers.ssrn.com/sol3/papers.cfm?abstract_id=1843304.
Jackson, John. “Finding the Best Epistemic Fit for International Criminal Tribunals: Beyond the Adversarial–Inquisitorial Dichotomy.” Journal of International Criminal Justice 7, no. 1 (2009): 17–39.
Ambos, Kai. “Confidential Investigations (Article 54 (3)(E) ICC Statute) vs. Disclosure Obligations: The Lubanga Case and National Law.” New Criminal Law Review: In International and Interdisciplinary Journal 12, no. 4 (2009): 543–568.
Bell, Griffin B., Chilton Davis Varner, and Hugh Q. Gottschalk. “Automatic Disclosure in Discovery–The Rush to Reform.” Ga. L. Rev. 27 (1992): 1.
Brennan Jr, William J. “The Criminal Prosecution: Sporting Event or Quest for Truth–A Progress Report.” Wash. ULQ 68 (1990): 1.
Colton, Loretta N. “R. v. Stinchcombe: Defining Disclosure.” McGill LJ 40 (1994): 525.
Dawkins, Kevin. “Defence Disclosure in Criminal Cases.” NZL Rev., 2001, 35.
Fung, Archon, Mary Graham, and David Weil. Full Disclosure: The Perils and Promise of Transparency. Cambridge University Press, 2007.
Gold, Alan D. “Fundamental Justice-Disclosure.” Crim. LQ 34 (1991): 271.
Gotell, Lise. “The Ideal Victim, the Hysterical Complainant, and the Disclosure of Confidential Records: The Implications of the Charter for Sexual Assault Law.” Osgoode Hall LJ 40 (2002): 251.
Green, Bruce A. “Beyond Training Prosecutors about Their Disclosure Obligations: Can Prosecutors’ Offices Learn from Their Lawyers’ Mistakes.” Cardozo L. Rev. 31 (2009): 2161.
Hubbard, Robert W., Peter M. Brauti, and Candice Welsch. “Selective Prosecutions and the Stinchcombe Model for Disclosure.” Crim. LQ 42 (1999): 338.
Knauss, Robert L. “Disclosure Requirements-Changing Concepts of Liability.” Bus. Law. 24 (1968): 43.
Knoops, Geert-Jan Alexander. “The Dichotomy between Judicial Economy and Equality of Arms within International and Internationalized Criminal Trials: A Defense Perspective.” Fordham Int’l LJ 28 (2004): 1566.
Koshan, Jennifer. “Disclosure and Production in Sexual Violence Cases: Situating Stinchcombe.” Alta. L. Rev. 40 (2002): 655.
Kostant, Peter C. “When Zeal Boils Over: Disclosure Obligations and the Duty of Candor of Legal Counsel in Regulatory Proceedings After the Kaye Scholer Settlement.” Ariz. St. LJ 25 (1993): 487.
Langer, Máximo, and Kent Roach. “Rights in the Criminal Process: A Case Study of Convergence and Disclosure Rights.” Routledge Handbook of Constitutional Law 273 (2013): 277–78.
Lasso, Rogelio A. “Gladiators Be Gone: The New Disclosure Rules Compel a Reexamination of the Adversary Process.” BCL Rev. 36 (1994): 479.
Luther, Glen E. “The Frayed and Tarnished Silver Thread: Stinchcome and the Role of Crown Counsel in Alberta.” Alta. L. Rev. 40 (2002): 567.
MacCRIMMON, Marilyn T., and Christine Boyle. “Equality, Fairness and Reliance: Disclosure of Therapist Records in Sexual Assault Trials’.” CIAJ, Filtering and Analysing Evidence in the Age of Diversity. Ottawa: CIAJ, 1993.
Manarin, Brian. “Assessing the Expert: A Call for Reciprocal Disclosure in Canada.” Medicine, Science and the Law 39, no. 1 (1999): 17–22.
Martin, Andrew Flavelle. “Beyond the Goudge Inquiry: Is the Coroner Part of the Crown for Stinchcombe Disclosure Obligations.” U. Toronto Fac. L. Rev. 67 (2009): 9.
Mcintyre, Gabrielle. “Equality of Arms–Defining Human Rights in the Jurisprudence of the International Criminal Tribunal for the Former Yugoslavia.” Leiden Journal Of International Law 16, no. 2 (2003): 269–320.
Nakll, Barry. “The Effect of Due Process on Criminal Defense Discovery.” Ky. LJ 62 (1973): 58.
Negri, Stefania. “The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure.” Int’l Crim. L. Rev. 5 (2005): 513.
———. “The Principle of Equality of Arms and the Evolving Law of International Criminal Procedure’’(2005).” International Criminal Law Review 5 (n.d.): 513.
Paciocco, David M. “Filling the Seam between Stinchcombe and O’Connor: The McNeil Disclosure Application.” Crim. LQ 53 (2007): 161.
Palumbo, Josephine AL. “Striking the Right Balance Between Fairness, Efficiency and Expediency: The Competition Tribunal Revisits Its Governing Rules of Practice and Procedure.” Advoc. Q. 32 (2006): 437.
Robel, Lauren K. “Mandatory Disclosure and Local Abrogation: In Search of a Theory for Optional Rules.” Rev. Litig. 14 (1994): 49.
Rosenfeld, Michel. “The Transformation of the Attorney-Client Privilege: In Search of an Ideological Reconciliation of Individualism, the Adversary System, and the Corporate Client’s SEC Disclosure Obligations.” Hastings LJ 33 (1981): 495.
Schwarzer, William W. “In Defense of Automatic Disclosure in Discovery.” Ga. L. Rev. 27 (1992): 655.
Silver, Jay Sterling. “Equality of Arms and the Adversarial Process: A New Constitutional Right.” Wis. L. Rev., 1990, 1007.
Tochor, Michael D., and Keith D. Kilback. “Defence Disclosure: Is It Written in Stone.” Crim. LQ 43 (1999): 393.
Tomljanovic, Goran. “Defence Disclosure: Is the Right to Full Answer the Right to Ambush.” Alta. L. Rev. 40 (2002): 689.
Wasek-Wiaderek, Malgorzata. The Principle of" Equality of Arms" in Criminal Procedure Under Article 6 of the European Convention on Human Rights and Its Functions in Criminal Justice of Selected European Countries: A Comparative View. 13. Leuven University Press, 2000.
Winter, Ralph K. “In Defense of Discovery Reform.” Brook. L. Rev. 58 (1992): 263.
Yaroshefsky, Ellen. “Foreword: New Perspectives on Brady and Other Disclosure Obligations: What Really Works.” Cardozo L. Rev. 31 (2009): 1943.
———. “Prosecutorial Disclosure Obligations.” Hastings LJ 62 (2010): 1321. Toney, Raymond J. “Disclosure of Evidence and Legal Assistance at Custodial Interrogation: What Does the European Convention on Human Rights Require?” The International Journal of Evidence & Proof 5, no. 1 (2001): 39–60.