Reciprocal Disclosure in Criminal Trials: Stacking the Deck against the Accused, or Calling Defence Counsel's Bluff

Abstract

The author discusses the effect reciprocal disclosure would have on the accused's right to remain silent and the right not to incriminate oneself. As these rights are strongly entrenched in Canada's judicial system, the author examines if there is room to incorporate defence disclosure into Canada's criminal trial proceedings. A review is made of other jurisdictions where some degree of reciprocal disclosure is in place, and the limitations of introducing similar procedures into the Canadian system are discussed. The author concludes that the introduction of reciprocal disclosure would be a moderate expansion of already existing notice requirements, and defence counsel should start to introduce their own guidelines with respect to defence disclosure.