Basics of Criminal LawStructureAll criminal offences, whether arising from provincial or federal legislation, are prosecuted in the same criminal justice system

Provincial Crown:- Crown employed by the BCAG prosecute offences under the Criminal Code and provincial

legislation

Federal Crown:- Public Prosecution Service of Canada or its agents prosecutes offences under federal

legislation other than the Criminal Code

Agents:- BCAG and PPSC can contract prosecution out to private agents (ad hoc Crown and special

prosecution)o Federal government contracts out much more to private agents, often to firmso Provincial crown contracts out more rarely and to individuals

- When both provincial and federal authorities are engaged, the Crown responsible for the prosecution of the more serious offence will lead and the other Crown will assign the lead as their agent in the less serious offence

Parties and RolesPolice:- Investigate offences- Suggest charges to the Crown (in some other provinces, police lay charges)

Seperation of Police and Crown counsel:- Police have complete independence from Crown or any other agent of government to

investigate who & what they wish (Shirose)o A Crown prosecutor might provide advice to the police during the course of an

investigation, but do not direct the policeo The “Rule of Law” principle : all are subject to the law, and equal before the law,

regardless of status or political influence- It is essential that the Crown not engage in pre-charge evidence gathering (Regan)

o The SCC in Regan noted that in Morin, loss of objectively led to Crown being blinded to the witness reliability problems in their case

Crown Counsel:It cannot be over emphasized that the purpose of a criminal prosecution is not to obtain a conviction…the role of prosecutor excludes any notion of winning or losing Boucher

Professional Conduct Handbook , 1-(2) and 8-(18)- A Crown Prosecutor’s primary duty is not to seek a conviction but to see that justice is

done; to that end the lawyer should make timely disclosure to the defence of all facts and

known witnesses whether tending to show guilt or innocence, or that would affect the punishment of the accused;

The prosecutor exercises a public function involving much discretion and power, and must act fairly and dispassionately.

3 Qualities for Minister of Justice Regan (Binnie, dissent)o (1) Objectivityo (2) Independenceo (3) Lack of Animus

- However, belief in the allegations, and the desire to see justice done are not incompatible with objectivity and fairness Regan (LeBel, majority)

- The Crown can act as a strong advocate within the adversarial system – it is both permissible and desirable that it vigorously pursue a legitimate result to the best of its ability Boucher

Independence:- From political interference: Crown Counsel Act (5, 6, 7)

o Directions must be made public- From the police: Crown Counsel Act (4)- From the Courts: (Prosecutorial Discretion)

Prosecutorial Discretion Subject to the abuse of process doctrine, supervising one litigant's decision-making process -- rather than the conduct of litigants before the court -- is beyond the legitimate reach of the court

o SCOPE: Decision as to whether prosecution should be brought, continued or ceased and, if so, what the prosecution ought to be for (Nixon)

Discretion Incorporates: (Miazga) the discretion whether to bring the prosecution of a charge laid by

police the discretion to enter a stay of proceedings in either a private or

public prosecution CC, c. C-46, ss. 579 and 579.1 the discretion to accept a guilty plea to a lesser charge the discretion to withdraw from criminal proceedings altogether

R. v. Osborne the discretion to take control of a private prosecution R. v.

Osiowyo Only subject to abuse of process – stay of proceedings will only be appropriate

when: (Canada(Minister of Citizenship and Immigration) v. Tobiass) (1) he prejudice caused by the abuse in question will be manifested,

perpetuated or aggravated through the conduct of the trial, or by its outcome; AND

(2) no other remedy is reasonably capable of removing the prejudice

Defense Counsel:Dual role as advocate and minister of justice (Martin Report)

o Cannot advance fabricated evidence or mislead the courto Not merely a mouthpiece of the client (Samra)

The “alter ego” concept of a defense lawyer which sees him as a mouthpiece for his client is fundamentally wrong, unethical, and destructive of the lawyer’s image (Martin Report)

o Professional Conduct Handbook: it is a lawyer’s right to undertake the defense of a person accused of crime…BUT without rancor or sharp practice; defense counsel remains an officer of the court

Vigorous Defence- Every counsel has a duty to his client fearlessly to raise every issue, advance every argument

and ask every question, however distasteful, which he things will help his client’s case (Rondel v. Worsley)

Professional Conduct- Counsel are required to conduct themselves professionally as part of their duty to the court

and their clients, but professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a client (Felderhof)

Martin Report Both Crown Counsel and Defense are Officers of the Court – more than merely representatives of a particular interest or set of interests

Judge:- Finder of Law- Decides legal questions including procedural and admissibility questions

Responsible for maintaining order and civility in the courtroom (Felderhof)o Curbing incivility in the courtroom is the responsibility of both counsel (as officers

of the court) and chiefly the judge (Marchand)

Give Reasons- A trial judge is required to provide an explanation of the basis of the decision in a

manner that is reasonable intelligible to the parties and enables meaningful appellant review of the correctness of the decision (Sheppard)

- Allows for reviewability

Provide Assistance to Unrepresented Accused- To ensure a fair trial, a Trial judge is required within reason to provide assistance to an

unrepresented accused, to aid the accused in the proper conduct of his defence and to guide him through the trial so the defence is brought out with its full force and effect. (McGibbon)

- However, the trial judge does not become the accused’s advocate.

Jury:- Finder of Fact- Decides on the facts and applies the law (not responsible for supplying reasons)

CasesR v. Felderhof

Counsel are required to conduct themselves professionally as part of their duty to the court and their clients, but professionalism is not inconsistent with vigorous and forceful advocacy on behalf of a clientInsider trading. Prosecution applies for cessation of proceedings and a new trial before a different judge – alleging trial judge made errors that deprived him of jurisdiction to proceed and undermined a fair trial. Prosecution alleged Judge failed to curb the uncivil conduct of respondant’s counselHeld:- Application dismissed (no palpable and overriding error – though the defense counsel DID

act uncivilly and the judge did not fully discharge his responsibility to curb such conduct)o “Nothing said here is inconsistent with or would in any way impede counsel from

the fierce and fearless pursuit of a client's interests in a criminal or quasi-criminal case.”

- Civility o Civility within the legal system not only holds the profession together, but also

contributes to the continuation of a just society. . . . Conduct that may be characterized as uncivil, abrasive, hostile, or obstructive necessarily impedes the goal of resolving conflicts rationally, peacefully, and efficiently, in turn delaying or even denying justice."

- Test for abuse of process based on alleged impropriety in Crown exercise of prosecutorial discretion:

o Bar set Very Higho Where there is conspicuous evidence of improper motives or of bad faith or of an act

so wrong that it violates the conscience of the community, such that it would genuinely be unfair and indecent to proceed, then, and only then, should courts intervene to prevent an abuse of process which could bring the administration of justice into disrepute. Cases of this nature will be extremely rare. (Power)

R v. ReganCourt examines the parameters of abuse of prosecutorial powers19 counts of sex-related offences, Defendant claims the Crown is “out to get him” and asks or stay in proceedings. Alleged Crown abuse of procedure – “judge shopping,” pre-charge interviews, RCMP’s premature press release confirming the investigation.Held:- Appeal dismissed- Judge Shopping

o In general , is offensive to the administration of justice, as it illustrates and takes advantage of an inequality between the Crown and defence, in that only the Crown has the power to influence which judge will hear its case by manipulating the timing of the laying of the charge

o In this case, there was only one comment not acted upon (not major enough to warrant stay of proceedings

- Pre-Charge Interviews o Policy concerns:

Con: If done for any reason other than screening potentially frivolous charges, they tend to bias the prosecution against the defendant

Pro: may advance interests of justice: in BC, Crown counsel must approve charges before the police can lay them, and this Crown approval may require witness interviews, pre-charge

o Pre-charge interviews do not destroy Crown objectivity

“The evidence shows that in some Canadian jurisdictions, pre-charge interviews by the Crown are a regular, even common practice. In these jurisdictions at least, it appears that public policy is served by the practice, and potentially harmful and arbitrary results are avoided by the refusal to draw a hard line at the decision to lay charges, before which Crown counsel may not interview complainants.”

- Separation of Prosecution and Police Investigation o Separation between prosecution and police is essential to the proper administration

of justice Marshall reporto Relationships of this nature can prevent prosecution from adequately assessing the

reliability of police officers who testified for the prosecution Kaufman Report (Morin)

Miazga v. Kvello EstateCourt examines the scope of prosecutorial discretion, and the standard for malicious prosecution70 charges of sexual assault eventually stayed when child witnesses confessed to fabricating the story. Respondents commenced action for malicious prosecution.Held:- Malicious Prosecution:

o Will only be made out where there is proof that the prosecutor's conduct was fuelled by "an improper purpose or motive, a motive that involves an abuse or perversion of the system of criminal justice for ends it was not designed to serve" Nelles

o (1) absence of reasonable and probable cause There must be an absence of evidence that, from a purely legal standpoint,

points to reasonable and probable causeo (2) Malice

To show malice, there must be evidence that the prosecutor was impelled by an “improper purpose” Nelles

o In this case , no evidence of malicious prosecutionProsecutorial Discretion

o Crown counsel discretion in the exercise of their prosecutorial discretion is highly independent and outside of the reach of courts, subject to the strict doctrine of abuse of process Krieger

o Discretion Incorporates: the discretion whether to bring the prosecution of a charge laid by police the discretion to enter a stay of proceedings in either a private or public

prosecution CC, c. C-46, ss. 579 and 579.1 the discretion to accept a guilty plea to a lesser charge the discretion to withdraw from criminal proceedings altogether R. v.

Osborne the discretion to take control of a private prosecution R. v. Osiowy

R v. NixonReiteration of the independence of prosecutorial discretion – it is not immune from review, but should be subject only to abuse of processAccused charges with dangerous driving causing death and other CC charges, agreed to plea bargain for $1,800 and dropped CC charges. Plea bargain was reviewed by AG and determined to be inconsistent with administration of justice, plea agreement revoked. Application judge held that revoking the plea agreement breached accused’s s.7 rights

Held:- Test for Prosecutorial Discretion

o in determining whether any impugned decision falls within the core of prosecutorial discretion, it is useful to ask: "... is it a decision as to whether a prosecution should be brought, continued or ceased, and if so, what it should be for?"

- Crucial issue – is the complained of behavior (revocation of the plea) a matter of “prosecutorial discretion” or “tactics before the court”

o Prosecutorial discretion is subject only to abuse of processo Tactics before the court are the joint responsibility of the judge and the counsel

- In this case, o DM's decision to repudiate the plea agreement also constitutes an act of

prosecutorial discretion. So long as the proceedings are ongoing, the Crown may be required to make further decisions about whether the prosecution should be continued and in respect to what charges

Levels of Court in BC1. Justice of the Peace Court

a. Traffic Court (statutory)b. Justice of the Peace not a judgec. Jurisdiction over compelling appearance, trial and sentencing of summary

conviction offencesd. If it is a complex matter or raises issues of Charter protection, then it is raised to

the Provincial court2. Youth Court - Provincial Court Judge

a. Charges proceed by way of informationb. Court has jurisdiction over compelling appearance, trial and sentencing for

summary and indictable matters; which may be joined on one informationc. If Crown seeks adult sentence, the accused may elect trial by Superior Court

Judge, with or without jury, or may chose to proceed with a Provincial Court Judge

i. If Superior court chosen, the Provincial court judge has jurisdiction over the prelim (if occurs)

ii. If PCJ chosen, PCJ has jurisdiction over the trial and sentencing and discretion over whether or not to impose adult sentence

d. Appeals from PC go to SC, and appeals from SC go to Court of Appeal3. Provincial Court (statutory) – PCJ

a. Jurisdiction over compelling appearance, trial and sentencing of summary conviction offences, absolute jurisdiction indictable offences (s. 533), all other indictable offences where the accused elects trial by PCJ

b. Summary and non-absolute indictable offences cannot be joined on a single information

c. Appeals from summary conviction trials go to the SC; Appeals from indictable trials go to CA

4. Supreme Court of BC – SCJa. Trial Court – Inherent Jurisdiction

i. Charges proceed by way of indictmentii. Jurisdiction over compelling appearance; trial and sentencing; ALSO

broad inherent jurisdiction to direct proceedings and make rulings on any/all issues that may arise

iii. Appeals go to the BC CAb. Summary Conviction Appeals

i. Statutory powers to hear, and decide appeals from provincial courtii. Further appeal goes to BCCA

5. SCC – subsequent appeals after BCCAa. Final appellate authority for all courts

Types of OffencesThe punishment section of the offence will list the type of offence

Classifications of Offences- Summary

o Mode of Trial: 798: Provincial Court Judge alone (“summary conviction court” o Sentence: 787: Fine not more than $5000, or prison term not more than 6 months

(unless otherwise specified in the Code) - Indictable

o No Crown election, proceed by indictment onlyo 469 “Serious Indictable Offences”

Mode of Trial: Superior Court Judge and Jury UNLESS the Crown consents to trial by SC judge alone (cannot be PCJ) (473)

o Electable Offences Accused may elect the mode of trial Where the Penalty has a possibility of more than 5 Years:

Accused has a right to a jury Crown can cause trial by jury (s.568)

o 553 “Absolute Jurisdiction Offences” Mode of Trial: Provincial Court Judge Alone

- Hybrido Crown elects Indictment or Summary Conviction

If indictment, check to see if it is a 553 offenceo Parliament has been increasing the number of hybrid offences and the number of

summary offences with sentences higher than 6m0/$5000 more cost efficient court process

- Direct Indictmento With consent of AG or DAG or with Judges orders – s. 577o Presumed to be SC Judge and Jury unless D re-elects SCJ (s. 565(2))

Crown consent required for 469 offenceo No prelim inquiry – s. 536(4) is expressly subject to s. 577

Elections The Crown has an election only when it is a hybrid offence

Defence has an election when charged with:1. An indictable offence, s. 536 (2), or 2. A hybrid offence where Crown elected to proceed by indictment, s. 536(2)

unless the offence is:

1. the offence is an absolute jurisdiction offence, s. 553 in which case the accused is remanded to a PCJ pursuant to s. 536(1)

2. the offence is a s. 469 Offence, s. 536(4) 3. the Crown proceeded by a Direct Indictment, s. 577 & s. 536(4)4. the Crown overrides the accused’s election (rare), s. 568

What are the defence choices?If the defence has “an election”, the defence may choose:

1. PCJ: a trial before a provincial court judge. This election is made pursuant to s. 536(3) and the matter proceeds to trial pursuant to s. 554.

2. SCJ: a trial before a Supreme Court judge “sitting alone.” This election is made pursuant to s. 536(3) and the matter proceeds to trial pursuant to s. 558; or

3. SCJ & J: a trial before a Supreme Court Judge and Jury.

Deemed Elections 565IF Accused Stands MuteIf the accused does not make an election when the election is put to him, accused is deemed to have elected SCJ & J, s. 565(1)(c).

IF Co-Accused Elect differently- 567: J may decline to record an election for PCJ or SCJ alone if co-accused electing

differently- 565(1)(b): If justice/pcj/j declined to record an election pursuant to s. 567(co-accused elect

differently), deemed to have elected SC Judge & Jury.

Re-Election, s. 561 - 563General Options for Re-election: Whether the accused can re-elect “as of right” or whether consent of the prosecutor is required, is set out in s. 561 and depends upon:

1. Where in the proceedings are you?2. What was the original election? 3. What election is sought?

The procedures for re-election and following re-election are set out in s. 561 563.

Direct Indictment: where the Crown proceeds by direct indictment, the mode of trial is presumptively SC judge and jury. However, the accused may re-elect to Supreme Court Judge alone as per s. 565(2). Consent of the Crown will be required if it is a s. 469 offence. However, still no prelim.

s. 469 Offences: re-election to Supreme Court judge alone pursuant to s. 473 with consent of accused and prosecution

Reasons for ElectionTime: - procedural efficiency- PCJ is quicker (if accused is in custody) – Crown almost always prefers summary- Streamlines the process – allows for the opportunity to eliminate irrelevant evidence and

streamline the future trial process- Works toward establishing a plea bargain

Preliminary Inquiry:- Defense - Opportunity to test the evidence and get further disclosure at a preliminary hearing- Prosecution – opportunity to stress the strength of their case and push for a plea

Jury:- How does the accused present themselves? Likely to bias a jury?- Are the witnesses sympathetic?

Evidence that is excluded for admissibility reasons:- Judges that adjudicate trials must make rulings on the admissibility of evidence – a jury

would never see evidence that was relevant but inadmissible for policy reasons – a judge would, but is not supposed to let it affect him/her – a defense counsel might feel more comfortable with the jury in that case

Factors: Crown Election - Generally, Crown wants to proceed summarily if at all possible

o Lower cost; fewer delays; fewer opportunities for the matter to be derailed; easier of witness; secures expeditious proceedings for a youthful accused; avoid victim having to testify twice (prelim)

- Sentencing limitations with summary proceedingso Note, summary offences have been gaining lengthier sentences recently: 18

months max in some cases: ACBH/AWW 267; Unlawfully causing bodily harm 269; sexual assault

271(b), etc These allow the Crown to achieve public interests while still proceeding

sumarily- There may be value in the opportunity to assess the case via preliminary hearing

Factors: Defence Election - Prelim Inquiry may be useful to gain a statement from a witness; or to assess evidence or

work out a plea- Judge vs. Judge and Jury

o Is the defence a legal argument better suited for a judge or is it fact-driven?o Judge may be favourable where D will not be putting forth a defence – claiming

RD from Crown’s caseo Which witnesses are more sympathetic? If D’s witnesses are, then maybe jury

would be better?o Excluded defence statements will have been heard by the judge, but will not be

put before a juryo If D is testifying, is there a criminal record? Prejudice to the jury more so than a

judge? Similar concern for where D is not taking the stand at all

o Unfavourable media coverage might push towards having judge aloneo Expert witnesses may be over-valued by a jury, so if D has strong expert

witnesses, that would be good for them, and vica versa- Provincial Court vs. Supreme Court

o PC is speedier and less formalo Jury trials are slow and expensive – cost to the D may be a factor to consider

o Bail? Is D being detained throughout?- General considerations:

o Cost to cliento Custodial status of accusedo Seriousness of the offenceo Counsel preference: comfort in the forum / effectiveness in front of judge or jury

Modes of TrialPreliminary Inquiry536(4) at the request of the accused OR the prosecutionUNLESS: Proceeding Summarily, or the Crown prefers Direct Indictment

Prelims are Hearings before a judge alone (PCJ or CMJ) to determine whether there is sufficient evidence to put the accused on trial

Standard Sheppard - The preliminary inquiry justice is asked to look at the evidence presented by Crown and:

A) order the accused to stand trial B) discharge the accused – very rarely happens, the requirements are not strict

- Before ordering an accused to stand trial, the judge must ask: “Is there admissible evidence that could, if it were believed, result in a

conviction”? USA v. Sheppard “Is there any evidence on which a reasonable jury, properly instructed, could

convict?” R v. Arcuri this is a very low bar, trials are almost never ended here

Purpose:- Defence: to see and test the strength of the prosecution’s evidence- Prosecution: potentially to make a case so strong that it will influence the accused’s

likelihood of appealing

Summary 1. Laying an information pursuant to s. 788

a. S. 795 Rules of compelling appearance, jury trial and mental disorder apply2. No election by either Crown or Defence3. Only the summary conviction court may try the accused (s. 785)4. Default sentencing provision – s. 787 (6m & $5k) – note, was 2k before Oct 1, 2008

a. Unless offence provision states differently5. Appeals go to the SC

Hybrid (Crown Election) 1. If Crown elects to proceed summarily, same procedure as above

a. Note: if Crown does not expressly state it is proceeding by indictment, Crown is presumed to be proceeding summarily – “BY INDICTMENT” appears at the top

of the information if elected2. If Crown elects to proceed by Indictment

a. If not 553 – Absolute Jurisdiction Offence, then D may elect mode of trial pursuant to s. 536(2)

b. Sentencing varies by offence – sometimes sentencing is in it’s own provisionc. Appeals go to the BCCA – s. 674

Strictly Indictable - No Crown election for indictable offences- Absolute Jurisdiction offences (s. 553) – s. 201(1) gaming house; s. 202 betting, pool-

selling etc; s. 206(1) lotteries, or games of chance; s. 210(1) – keeping common bawdy house

o Strange that this category exists, because strict indictment is for serious crimes- If not 553, D can elect mode of trial- Sentencing is also based on specific code provisions- S. 469 Offences

o These are the big crimes – murder, treason, alarming her majesty, etco Only tried in SC by judge and jury – subject to re-election s. 473 for judge alone

with Crown consent

Direct IndictmentWhere Crown proceeds by direct indictment, the accused does not get a preliminary inquiry, though the Crown must still disclose through the normal disclosure processS.577 Requires Deputy Attorney General’s consent

- The Deputy Attorney General must be satisfied not only that the consent is appropriate and consistent with this policy, but also that each count meets the charge assessment standard.

Administrative Crown Counsel Regional Crown Counsel Assistant Deputy Deputy Attorney General

Circumstances where it is in the public interest to proceed by direct indictment include: - (1) significant danger of harm to a witness- (2) public interest in a solution to serious logistical problems (complex case, absconding

witnesses)- (3) Preliminary inquiry would cause serious delay, such that the trial process would be

rendered impossible- (4) Judge at a prelim has made a clearly unreasonable decision which results in a failure to

commit on a particular charge which the public requires be prosecuted- (5) A committal order was invalid due to procedural error after a full prelim- (6) Crown erred in failing to call serious evidence at a prelim, where the evidence is still

available for trial- (7) significant new evidence after discharge at prelim requires a trial- (8) significant new evidence after committal on a lesser charge and public interest requires a

trial for a more serious offence- (9) to protect an informant’s identity

Investigative Powers of Police

Charter Rights EngagedSection 9: Everyone has the right not to be arbitrarily detained or imprisoned.

Section 10:- 10(a): reason for detention- 10(b): retain & instruct counsel (informational & implementational)- 10(c): remedy of habeas Corpus

Section 7: right to silence

Questioning- Police generally always have a right to ask questions (R. v. Kay, BCCA), however people

generally don’t have to answer. In fact, unless the person is detained, generally not even required to listen to the questions. There are exceptions including motorist’s duties under the Motor Vehicle Act.

Investigative Detention - Police have a right to detain people, short of arrest, in certain circumstances. - Upon detention an individual’s rights pursuant to sections 10(a) and 10(b) of the Charter

arise.

R v. MannCourt Articulates Investigative Detention – police officers are allowed to detain individuals briefly for investigative purposes if they have reasonable grounds to suspect they are connected to a particular crimeMann stopped because he fit the description of a break and enter, Police used power of investigative detention, Pat search – felt something soft – continued search – found marijuanaHeld:- police officers MAY detain an individual for investigative purposes IF

there are reasonable grounds to suspect in all the circumstances that the individual is connected to a particular crime and that such a detention is necessary.

- Investigative Detention (1) Must be brief (but can lead to arrest) (2) Must have reasonable grounds to suspect connection to criminal activity and that

the detention is necessary (3) Any search must be a protective search

- Search Incident to Detention Police can search, but it must be a “protective search”

o (1) may only be a pat-down searcho (2) must be a search for weapons in order to protect the officer or the public

o (3) Only permissible when there exist reasonable grounds that safety is at risk

- In this case: The detention was constitutional, but the incidental search was not (evidence

excluded)

Random Road Side Stops: - Peace officers may randomly stop vehicles for reasons related to driving a vehicle, such as

checking a driver’s license and insurance, sobriety tests and mechanical fitness. However, random roadside stops must be limited to their intended purposes and cannot be turned into an “unfounded general inquisition or an unreasonable search.

- Roadblock powers

Arrest:- Police powers to arrest for Criminal Code offences are contained in section 495 of the

Criminal Code

Interrogation:- Police are entitled to attempt to obtain a statement from a suspect. - Accused does not have a right to have counsel present while police attempt to elicit a

statement.- Police interrogation tactics cannot go so far that the will of the accused is overborne by

threats, promises, or inducements (Oickle)

“I want to go back to my cell” In R. v. Singh, 2007, SCC: police questioning persisted despite accused’s repeated statements that he wanted to go back to his cell (18 times). Accused did not confess, but identified himself in pub surveillance photo.

Search and Seizure and PrivacyCharter s.8 – everyone has the right to be protected against unreasonable search and seizure

What is a search? [Evans (1996, SCC)]o An examinationo By an agent of the stateo Which constitutes an intrusiono Upon an individual’s reasonable expectation of privacy

What is a seizure? [R. v. Dyment (1988, SCC)]- The taking of a thing from a person by a public authority without that person’s consent.- A non-consensual taking by state officials of an item in which the citizen has a reasonable

expectation of privacy. [Borden (1994, SCC)]

Privacy defined as: the right of the individual to determine for himself to decide when, how, and where he will divulge personal information (Duarte)

- The Purpose of s.8 is to protect a reasonable expectation of privacy (Hunter) S. 8 protects “biographical core of personal information which individuals in a free

and democratic society would wish to maintain and control from dissemination…” (Plant)

- This expectation of privacy is as against the state (Wong)- Levels of Expectation of Privacy (Tessling)

Personal Privacy (highest expectation) Territorial Privacy Informational Privacy (lowest expectation – arguably)

- Factors which influence the reasonable expectation of privacy “Totality of the Circumstances” Test (Edwards)

Presence at the time of the search Possession/control of the property or place searched Ownership of the property/place Historical use of the property/item Ability to regulate access Subjective expectation of privacy Objective reasonableness of the expectation

- If there is a Reasonable Expectation of Privacy, Reasonable Searches Must: (Hunter) (1) Have prior authorization (2) Be based on reasonable and probable grounds (3) Be conducted reasonable and within the scope of the warrant

- Warrantless Searches (Incident to Arrest) are Prima Facie Unreasonable, and Require: (Caslake)

The Crown to prove, on a balance of probabilities, that the search was reasonable Court will consider whether the evidence was conscriptive, and whether the search

was truly incident to an otherwise lawful arrest

The Gold Standard Hunter v. Southam The Purpose of s.8 is to protect a “Reasonable Expectation of Privacy” and as such, reasonable searches require (1) prior authorization (2) reasonable and probable grounds and (3) to be conducted reasonably and within the scope of the warrants. 10(1) of the Combines Investigation Act allows Director of Investigations to enter premises, examine, and seize materials on the basis of belief that it was relevant to an investigation. Is this statute constitutional under s.8? (Nope)Held:- Charter operates to limit government action inconsistent with those rights and freedoms – it

does not confer government authority even to a “reasonable” search- When is the Balance of Interests to be Assessed?

Before the intrusion (“Privacy once lost cannot be restored”) This will not be reasonable in all circumstances (if someone’s safety is at risk or there

is a serious risk of the destruction of evidence)- Who Must Grant Authorization?

Independent commission with investigatory powers Not necessarily a judge, but must be “capable of acting judicially”

- On What Basis Must the Balance of Interests be Assessed? Balance the severity of predicted intrusion with the severity of predicted harm Judge must be convinced of reasonable and probably grounds (established under

oath) “The State's interest in detecting and preventing crime begins to prevail over the

individual's interest in being left alone at the point where credibly-based probability replaces suspicion”

- Hunter “Gold Standard” for Searches: (1) Prior Authorization (2) Reasonable and Probable Grounds for Search

(3) Search Conducted Reasonably and Within the Scope of the Warrant

R v. CaslakeWarrantless Search (Incident to Arrest) Because it is prima facie unreasonable, the Crown has the burden of proving it was nevertheless reasonable on the balance of probabilitiesPolice conducted inventory search of accused’s impounded car without permission or search warrant, found drugs, accused appealed based on the reasonableness of the searchHeld:- If the search was not conducted to the specs of the Hunter standard, the burden is on the

Crown to show that it was nevertheless reasonable- Search Incident to Arrest

(1) incident to arrest (2) reason for the search must be related to the arrest (3) the reason must be objectively reasonable

- Scope of Search Incident to Arrest Delay and distance do not automatically preclude a search from being incidental

to arrest, but they may cause the court to draw a negative inferenceo Search does not have to be immediately contemporaneouso The restriction that the search must be "truly incidental" to the arrest

means that the police must be attempting to achieve some valid purpose connected to the arrest

Cannot take bodily samples (Stillman) Can search automobiles, no extra expectation of privacy

- In this case Evidence admissible the search, given that the arrest was lawful, was incidental to the arrest because it

was related, subordinated, to the arrest The evidence was non-conscriptive

Warrants (Reasonable Search)Judicial authority to Search for, Seize, and/or Obtain- Specific things or information- Related to a specific offence- In/From a specific place or person

Information on Oath Required- Reasonable grounds- Sworn to be true- Issued by a Judicial Officer

Grants authority while placing limits- Can only search for certain things- Must leave once you have exhausted the scope of the warrant- Overbredth is a common ground of appeal for warrants

Must Have Reasonable Grounds to believe each of the following:- (1) Specific seizable things or information exist- (2) Related to an offence that has been or will be committed- (3) In or from a specific person or place

The Obligation is on the Affiant/Informant to disclose all relevant information:Since the suspect or person who has the expectation of privacy cannot make a case for themselves – the party seeking the warrant has an obligation to present all information to the judicial officer, not only the information that supports a warrant

COMMON WARRANTSs. 487: Search Warrant- Most common search warrant used- Offers discretion to the judge “may…issue a warrant”

Based on the balance between intrusion of privacy and severity of the crime- Used for searching vehicles, houses, offices, etc – very broad!- Limitations:

Only for past offences; searches of places only, not people; notice is required- Authorizes seizing things, not about using techniques or devices - broad

s. 487.01: General Warrant- Very broad; authorize: video warrants, information (not just evidence), anticipated offences

(not just past ones)- Use of techniques and devices or doing of anything, not just searching and seizing- There must be no other section that authorizes the proposed action, and techniques cannot

interfere with bodily integrity

s. 487.012: Production Order- Requires a person to ‘produce’ the record from data- Generally used for business records, medical records etc. – allows flexibility in production of

records

s. 487.05: DNA Warrant:- To get a bodily substance from a suspect to compare against DNA found at a scene/location

related to offence

s. 487.092: Impression Warrant:- Take impressions of some body part of the suspect to compare against impressions left at

scene/relevant location

s. 492.1: Tracking Warrant:- Authorizes placing of tracking device on something that you know the location of

s. 492.2: Dial Number Recorder:- Installation of a device that records what phones are calling or being called by a phone

s. 529 & 529.1: Feeney Warrants:- Authorize entry into dwellings to arrest a person; used by police when applying for arrest

warrant

s. 256: Blood Warrants (impaired > .08)- For serious motor vehicle accidents where RPG to believe accused impaired over 0.08. Many

requirements

s. 11 Controlled Drug and Substances Act- Most common warrants

Related Orders- 487.02 – Assistance Orders

(hotel manager, Rogers cable)- 487.3 – Sealing Order

(documents are sealed over the course of the investigation and unsealed afterwards)

AuthorizationsAuthorization: Another name for an order of the Court – authorizes named persons to do certain things

Types of Authorizations for Interception:- One Party Consent Authorization – s. 184.2

o Where one of the parties to the conversation have consented to the interceptiono Would be unreasonable search or seizure of done without authorization

- Full (non-consent) Authorizations – s. 186o Where none of the parties have consented to their conversations being

interceptedo Wiretap – application made pursuant to s. 185o Application made by the Crown, but affidavit sworn by peace officer

- Officer Safety Pack – s. 185o Where a wire is worn for safety reasons – usually undercover

- Exigent Circumstances – s. 184.4 o Interception of private communication without authorization where restrictive

criteria are met Immediately necessary to prevent serious harm “kidnapping provision”

- Emergency Authorization – s. 188o Obtained by having a specially designated officer appear before SC judge to

testify why private communications need to be intercepted but why there’s not time for an affidavit

Warrantless Search PowersSearch Incidental to ArrestAt Common Law, a peace officer has the right to search: (Caslake)

- a lawfully arrested person for weapons, evidence of the offence and escape tools- the immediate vicinity where the person is found

Search incident to arrest does not require belief that anything will be found (Cloutier)- requires grounds to arrest, not to search- however, , if the purpose of the search is to find evidence, there must be a reasonable

prospect that the evidence will relate to the offence for which the person has been arrested (Caslake)

Search Incidental to DetentionThe SCC in Mann enumerated the investigative detention, and outlined the scope of search incident to detention:

1) Detention must be lawful: officer must have reasonably suspected that the individual was connected to a specific criminal activity

2) Search must be protective: a. Must be a logical possibility that the individual could have possessed a weaponb. If the officer goes beyond a pat down, there must be a logical possibility that the

individual possessed a weapon which could not be detected by a pat-down search

Abandoned Property Not quite a search under s.8 – there is no reasonable expectation of privacy in property which has been abandoned (Patrick)

“Where an individual has ceased to have a reasonable expectation of privacy in something, its acquisition by the police constitutes a ‘gathering’ rather than a seizure such that s.8 of the Charter has no application” (Dyment)

Things considered “abandoned”:- Discarded kleenex or cigarette butts (Stillman)- Garbage left out for collection (Patrick)

Consent “search”VERY hard to uphold in court

Doherty, J., for the Ont. C. A. in .Wills (1992)- If an individual chooses to give something to a police officer, - it is a misuse of the language to say that the police officer seized the thing given. - Rather, the officer simply received it.

Elements of valid consent seizure/search: (Kennedy)- consent, express or implied, where the consenting person:

had the authority to give the consent was aware of nature of police conduct to which was consenting was aware of right to refuse to permit the conduct requested was aware of potential consequences of giving consent

- AND the consent was voluntary in sense not a product of police oppression, coercion or external conduct negating freedom to chose

Public Safety/911 hang upR. v. GodoyThe police have a duty to protect life and to investigate 911 calls911 hang-up. Police attend residence. Accused states everything ok and refused entry. Police forcibly entered & found wife with swollen eye and stating husband beat her. Accused resisted arrest.

Depending upon the circumstances of each case, this duty may justify a forced entry into the dwelling in order to ascertain the health and safety of a 911 caller.

However, the intrusion must be limited to the protection of life and safety

Plain view seizureThere is a common law power to seize without a warrant if something is in “plain view”

This is only a power to seize, NOT to search (Spindloe)

Elements of Plain View: (Nielsen)- officer was lawfully at the location at which the item was observed- item was discovered inadvertently- incriminating nature of the item was immediately apparent

Charge Assessments and ApprovalAvailable Options for the Crown:- No action- Return to Police for more information- Caution Letter

A Caution letter is sent when there is substantial likelihood of conviction, but it is not in the public interest to proceed with the charge

- Alternative Measures Referral- Prosecution

Charge approval standardCHARGE APPROVAL STANDARD: Crown Counsel must assess:- (1) Evidentiary Test: Whether there is a substantial likelihood of conviction- (2) Public Interest Test: Whether a prosecution is required in the public interestThe requirement to meet the charge assessment standard continues throughout the prosecution

Evidentiary Test- Crown Counsel must determine:

1. what material evidence is likely to be admissible 2. the weight likely to be given to the admissible evidence 3. the likelihood that viable , not speculative , defences will succeed

- In Exceptional Cases (violent crime/public safety risk): Crown Counsel must be satisfied that there is a reasonable prospect of conviction. This test is higher than that of a prima facie case, considering:

1. what material evidence is arguably admissible; 2. whether that evidence is reasonably capable of belief 3. whether that evidence is overborne by any incontrovertible defence

Public Interest Test- It is NOT a principle that suspected crimes must always be prosecuted wherever it appears

that the offence or the circumstances of its commission is or are of such a character that a prosecution in respect thereof is required in the public interest.” (Lord Shawcross)

- No hard and fast rule – Crown must balance factors which tend to favor public interest in prosecution and those which do not

Factors Pro:o Serious allegationso Conviction would result in serious sentenceo Considerable harm was causedo Used or threatened use of a weapono Evidence of premeditationo Accused in a position of authorityo Offence committed while under order of Courto Vulnerability of victim

Factors Against:o Small or insignificant crimeo System other than Justice System can be engagedo Genuine misunderstandingo Law is obsolete or obscureo Loss or harm was small or insignificant

Crown Counsel Must- (1) Make Charge Assessments in a timely fashion- (2) Record the reasons for any charge assessment- (3) Where appropriate, communicate reasons for decision with those affected, including

police Police can appeal if they do not like the decision

- (4) Consider whether proceeding by indictment after expiry of a limitation period would constitute abuse of process

Commencing ProceedingsProceedings are commenced (charges laid) under following:

1. Swearing an information for an indictable offence under s. 504;2. Swearing an information for a summary offence under s. 788;3. Preferring a direct indictment, s . 577 (AG must consent)

Section 504 – Where Justice May Receive Information- Anyone who, on reasonable grounds believes that a person has committed an indictable

offence, may lay an information before a justice, where it is alleged:o (a) Person has committed an indictable offence anywhere that can be tried in the

jurisdiction and that person is or resides within the jurisdictiono (b) Person has committed indictable offence within the jurisdiction, wherever

that person may be nowo (c) Person anywhere unlawfully received property that was unlawfully obtained

within jurisdiction ORo (d) Person possesses stolen property within the jurisdiction

Police or Private Citizens can Lay InformationIF Police information:Sections 504 + 507; or 504 + 508

- (1) Police Report to Crown Counsel is submitted even if accused is incarcerated and Crown prepares documents

- (2) Charge Approval Process is carried out before information is presented to JP - Only peace officers can lay information under section 505

After Hours:- Section 508.1 – tele-hearing- Police prepare information and speak to bail, sometimes defence counsel

IF Private Information:- Sections 504 + 507.1- Charge is laid without the prior screening of the Crown- Once sworn, the JP determines if there should be a process hearing or not

o If no hearing, no process, no further involvement of the courtso If hearing, Crown given notice and makes decision on merits of the

prosecution If standard met, Crown assumes conduct and proceeds to trial If not, Crown directs stay of proceedings (NOTE: Crown has unfettered

discretion to direct stay of proceeding after process hearing, but it is an abuse of process to stay prior/during hearing and so deprive a private informant of judicial hearing)

Two Stages- (1) Swearing the Information

504 – Indictable Offenceso 505 – “as soon as practicable” in certain circumstances

788 – Summary proceedings o 788 - 6 month limitation period

- (2) Issuing or Confirming “Process” 507 – Issue summons on arrest warrant (where there has been no previous release)

508 – Confirm previous process, or issue summons or arrest warrant (where there has been previous release)

Alternative Measures (Diversion)The Crown must first assess the likelihood of conviction, alternative measures is NOT an alternative to a weak case

1) Crown should consider alternative measures except where expressly prohibited in certain cases- Alternative measures can be used to promote a sense of responsibility or rehabilitate- Court is primarily the appropriate method only when seeking separation from society by

imprisonment

2) Alternative measures should not ordinarily be considered where: - (a) the accused is on probation or is serving a term of imprisonment

whether in the community or in a correctional facility - (b) the accused has recently participated in alternative measures OR has recently been

convicted of similar offences

There is a list of serious offences which specifically should not be considered for alternative measures or require the approval of a RD for the use of alternative measures

717(1) Alternative measures may be used to deal with a person alleged to have committed an offence only if it is not inconsistent with the protection of society and the following conditions are met:

(b) the person who is considering whether to use the measures is satisfied that they would be appropriate, having regard to the needs of the person alleged to have committed the offence and the interests of society and of the victim

717(4) the original offence can be prosecuted if there is total or substantial failure to comply with the intrinsic conditions of the alternative measures process

REFERRAL: Crown counsel can refer an accused to a parole officer for screening and eventual referral for alternative measures, which the counsel will then review and approve

Resolution Discussions and Stays of ProceedingsResolution Discussions often result in early guilty pleas, which reduce stress on the judicial

system and appeal to society’s interest in a swift resolution

Crown counsel are encouraged to initiate resolution discussions- Crown counsel should:

Make full disclosure with the accused Accept a guilty plea only to charges that continue to meet the charge assessment

standard Ensure accused understands legal ramifications of plea

Ensure the plea reasonably reflects the criminal conduct of the accused Ensure that the court is advised of all the relevant information Recognize that a guilty plea is usually a mitigating factor on a sentence Refrain from entering any agreement which purports to restrain the discretion of the

AG to appeal

Where there are multiple charges, although there may be a substantial likelihood of conviction on a particular charge, Crown Counsel may direct a stay of proceedings on that charge and accept a plea to a reduced number of charges as Counsel ensures that the offences to which the accused pleads guilty appropriately reflect the criminal conduct of the accused

Information to Victims and Police- Where there is serious harm AND it is practical, Crown should inform victim’s family and

friends, the police or other investigative agency before directing a stay of proceedings

Crown Counsel should consult with Regional or Deputy Regional Crown Counsel before concluding any resolution discussion or directing a stay of proceedings where:- (a) where the charge alleges that a person is responsible for a death; and - (b) for any serious charge about which there has been, or about which objective factors

support the conclusion that there is likely to be, significant public concern with respect to the administration of justice.

Repudiation Should be Extremely Rare – considered only where RCC and ADA are convinced that the agreement would bring the administration of justice into disrepute

Compelling an Accused’s AttendancePROCESS:- (a) Proceedings are commenced with the swearing of an information - (b) At time of swearing the information either:

new process is issued: warrant or summons, or the previous process is confirmed: appearance notice, promise to appear

- (c) Arrest by Police Officers: Generally speaking, a police officer may arrest a person without a warrant if:

(1) he has reasonable grounds to believe the person committed an indictable offence (which includes hybrid offences at this stage);

(2) who he finds committing a criminal offence (this includes a summary offence); or,

(3) he reasonably believes there’s an outstanding arrest warrant for the person. - (d) Release by Police Officers: Most accused are released by the police

Police should not arrest a person for less serious offence (absolute jurisdiction, hybrid or summary) when they believe

o (1) the public interest can be met without arresting the person (see specifics in the section), and

o (2) the person will show up for court told summons will come, issued an appearance notice released on a promise to appear (PTA) or recognizance – sometimes on conditions (a

PTA with an undertaking or a recognizance with an undertaking) - (e) Most bail hearings are held before Provincial Court Judge (though Judicial Justices of the

Peace can hold them) Bail applications for section 469 offences must be in Supreme Court (murder bail)

- (f) Options at a bail hearing: undertaking no conditions undertaking with conditions recognizance with no surety or cash deposit recognizance with surety or deposit detention

PRINCIPLES:- Presumption of innocence- Presumption of non-arrest (police should only arrest when necessary)- Presumption of release if arrested

Terms- Appearance Notice: Issued by a police officer at the “scene” – gives a court date- Promise to Appear: Issued by a police officer after an arrest, usually “at the station” – gives a

court date Signed by officer and the accused Can include promise to take certain kinds of evidence, like finger prints

- Recognizance issued by Police: A promise secured by money, issued by police after an arrest, usually “at the station” – gives a court date

- Summons: Issued by the Court, telling a person to attend Court on a certain day- Arrest Warrant: Issued by the Court at the time that the charges are laid (information)

Civilian Powers of Arrest (494)494 Citizen can arrest:- Any individual “found committing” an indictable offence (though note that all hybrids are

considered indictable until Crown elects otherwise – Interpretation Act)- For any “criminal offence” in the case of lawful (fresh) pursuit- For any “criminal offence on or offence in relation to property”, but only if the citizen is the

owner, in lawful possession, or authorized by owner/lawful possessor

494(3) The citizen must deliver the arrested person immediately to a peace officer

Once delivered to a peace officer, the person may be released or detained by the police pursuant to s. 498 or 503

Police Powers of Arrest (495)You need to read s. 495(1) & (2) together. The Code gives the police powers to arrest in (1), but then quickly takes most of them away in (2)

495(1): police officer may arrest without a warrant for:- (1)(a) On reasonable grounds, any person “who has committed or is about to commit” an

indictable offence ( a hybrid offence is an “indictable offence” until the Crown elects, s. 34(1) of the Interpretation Act)

- (1)(a) finds committing a criminal offence” - (1)(c) On reasonable ground, any person subject to an arrest or committal warrant in the

territory (reasonable grounds to suspect there is a warrant for this person)

495(2): However, a police officer shall not arrest without a warrant if:- (1) If it is a summary, hybrid or s. 553 offence, AND- (2) If the officer has reasonable grounds to believe arrest is not necessary in the public

interest, including identification, preservation of evidence, and preventing repetition/continuation of offence, and

- (3) the officer has no reasonable grounds to believe arrest is necessary to ensure attendance at court.

RICE: Police officers are instructed not to arrest unless there is:- Reputation- Identity- Continuation- Evidence

ReleaseAfter being arrested, an accused may be released by:- The arresting officer- Officer-In-Charge (OIC) or other Peace Officer;- A Judicial Justice of the Peace (JJP)- A Provincial Court judge, or- A Supreme Court Judge

(497) Release by Arresting Officerfor absolute jurisdiction, hybrid or summary offences- The arresting officer may release the person if the officer doesn’t believe person needs to be

detained in public interest (RICE) or to ensure person attends court.

(498) Release by Officer in Charge or other Police officerFor Absolute Jurisdiction, hybrid, summary or indictable max not greater than 5 years- Officer in charge or other peace officer shall release ASAP:

Unconditionally with intention of summons to follow Promise to appear (PTA) Recognizance with no deposit or surety Recognizance with maximum $500 deposit if accused lives more than 200 km away

- UNLESS detention necessary in public interest (RICE) or there are grounds to believe person won’t attend court

There is no provision for imposing conditions under this section. If RICES not satisfied with unconditional release, but would be satisfied with conditional release, go to s. 503(2) & (2.1)

503(2) & (2.1) Release on Conditions by Officer in Charge (or Peace Officer For any offence except s. 469 (including indictable offences where maximum is greater than 5 years) - Officer in Charge (OIC) or Peace Officer may release a person where satisfied the person

should be released conditionally: (a) Promise to appear (PTA) with or without an undertaking with conditions attached; (b) Recognizance with no deposit or surety with or without an undertaking with

conditions attached; (c) Recognizance with maximum $500 deposit if accused lives more than 200 km

away with or without an undertaking with conditions attached.

Release with a Warrant(499) Where a Warrant is Endorsed, a Person may be released:- (1)(a) Promise to appear s499(1)(a) with or without an undertaking with conditions attached- (2) Recognizance without deposit or sureties with or without an undertaking with

conditions attached- (2) Recognizance with maximum $500 deposit if accused lives more than 200 km away,

with or without an undertaking with conditions attached

ENDORSED WARRANT: When issuing a warrant under section 507 or 508 (when information sworn), or 512 (public interest), the justice may, if not a s. 469 offence, “endorse” the warrant, indicating that the accused may be released.

Crown, when laying information and seeking a warrant, asks for certain conditions in endorsed warrant

UNENDORSED WARRANT: Peace officer still has the authority to release the accused, subject to conditions as appropriate under s.503

Sources of Warrants:- When Charge Laid: When an information is initially sworn, the justice may issue a

summons, or may issue a warrant for the accused if necessary in the public interest, s. 507 & 508.

Circumstances that may make a warrant necessary include:o evidence suggesting that detention or conditions of release are necessary to

prevent further offences,o if is no known address to send a summons.

- Public Interest: At any time after the information was sworn, when necessary in the public interest, s. 512

- Failure to Appear: When accused doesn’t attend court as required, s. 512, 544, 597, 803(2)...

- Bail Breach: When there are grounds to believe accused has or is about to breach his bail, s. 524.

- Warrant of committal for serving a sentence

Consent Release532(2)(c): Crown may consent release an accused on conditions either based on own assessment or after negotiations with defence (CONSENT release)

Cash bail Surety bail Conditions No charge

Consent release process:

- Crown completes & signs- Defence counsel reviews with accused & accused/counsel sign- Order prepared by the Court Registry- Order reviewed with accused by the JP- Sureties attend or cash deposited (if required)- Accused released

Failing a consent release (usually from an agreement between counsel), the accused is detained and brought into court for a Judicial Interim Release hearing

Judicial Interim ReleaseOnce an accused is held, they must be brought before a judge within 24 hours or ASAP (for weekends) to determine whether there is cause to detain that person before trial

Charter 11(e): any person charged with an offence has the right…not to be denied reasonable bail without just cause

Most are heard in PC, but 469 offences must be heard in the Supreme Court

Publication ban on show-cause hearings – s. 517- (1) “May” be ordered if Crown-requested; “Shall” be ordered if requested by Defence

Until accused is either discharged at prelim or at the end of trial- (2) It is an offence to violate the publication ban

Adjourning a bail hearing – s. 516(1) – max of three clear days! – custody during that time Why might Crown seek to adjourn a bail hearing?

o Perhaps to conduct further investigationo Can only be adjourned for 3 days w/o consent of accused. (so if Crown wants

an adjournment, they can only get a 3-day extension)o But can reapply at end of 3 days, but would need strong justification

Why might defence seek to adjourn a bail hearing?o To get more time to consider the issues, conduct research/investigation, talk

to client, etc. o Find a surety, evidence of a support network (bring relevant people to court,

if possible)o Find out all the facts – if there are any alibi witnesses, etc.; o Make connections w/ mental health workerso Some accused need a period to dry out – a week or two may make release a

much more plausible option (i.e. detox in custody first, then convince judge to release to recovery house)

o Or might just be overwhelmed by the case and need help.

Criminal Code s. 515 ( Bail Reform Act ) - Object of the legislation is to reduce pre-trial detention while securing attendance of accused

at trial and protecting the public interest- For most offences the starting position is that the judge shall release the accused on an

undertaking without conditions unless the prosecution to prove why accused should not be

given bail- Based on presumption of innocence – bail is the automatic default

R v. PearsonDenial of bail must only occur in a narrow set of circumstances, 11(e) transforms the Bail Reform Act (515) into a fundamental constitutional right- 11(e) contains 2 distinct rights

right to reasonable bail right not to be denied reasonable bail without just cause

The Ladder Approach- 515(1): Default position: released without conditions

For an accused other than a 469 offence, the justice shall order that the accused be released, unless the prosecution shows cause why detention is justified or any other order under this provision should be made

515(3) Crown must show cause why less onerous conditions are not appropriate

- 515(2) Release Upon Conditions (each step gets more onerous) (a) PTA with conditions (b) Recognizance without sureties or deposits (c) Recognizance with surety, but no deposit (d) Recognizance without surety, but with deposit (e) Recognizance with surety AND with deposit

o if accused is not ordinarily resident in the province or within 200km of the place in which he is taken into custody

Criteria for Detention 515(10)Primary Ground (Ensure Attendance)515(10)(a): Detention necessary to ensure attendance in court (Higher threshold than mere helpfulness or likelihood)- Non-resident of Canada- Previously charged with failure to attend- Roots in another community- Serious charge = greater flight incentive- Strength of Crown’s Case = greater flight risk- Life stability

Secondary Ground (Public Safety)515(10(b): Necessary for the protection or safety of the public, including any victim of or witness to the offence, or any person under the age of 18 years, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice- Criminal record- Charged with a serious indictable offence or if charged with an (s.515(6) “interim”

indictable offence, a criminal organization offence, terrorism offence, security of information offence

- Charged with a serious CDSA offence- Relationship with victim- Bound by court order at the time of the offence (likely to breach bail conditions

again)- Whether someone is willing to act as a surety (jailor in the community)

Tertiary Ground (Public Confidence)515(10(c): if the detention is necessary to maintain public confidence in the administration of justice, having regard to all the circumstances including:- the apparent strength of the prosecution’s case- the gravity of the offence- the circumstances surrounding the commission of the offence, including whether a

firearm was used- the fact that the accused is liable, on conviction, for a potentially lengthy term of

imprisonmentThe inquiry into the state of “public confidence” must focus on the reasonable community perception of the necessity of detention – not the perceptions of persons who don’t believe in bail or of the “overly excitable” (Hall)- Detention almost never happens solely on this ground; it appears to be a residual

category which allows for judicial discretion

Once Crown has made its case, the onus switches to the accused to show why they should not be detained

R v. BrayBail Reform Act is a “liberal and enlightened system of pre-trail release” - Reverse onus provisions (515(6) now, 457.7(2)(f) then) do not contravene 11(e)

presumption of innocence – since persons charged with criminal offences shall not be denied reasonable bail without “just cause”

- the primary and secondary grounds enumerated constitute just cause

R v. HallCourt examines the three grounds for detention, and upholds the constitutionality of the tertiary ground by reading out “any other just cause”Hall accused of murder, Denied bail, Challenged third ground on the strength of Morales as being too vague.Held:- The inquiry into the state of “public confidence” must focus on the reasonable

community perception of the necessity of detention – not the perceptions of persons who don’t believe in bail or of the “overly excitable”

- Without the phrase “any other just cause”, (3) remains sufficiently intact, and aimed specifically at maintaining public confidence, which is a sufficiently pressing purpose to reasonably deny bail

In this case, the secondary ground was sufficient to detain the accused

Iacobucci’s Dissent:- Grounds are still too broad, with the presumption of innocence in mind- Essentially pointing to guilt before trial – really just serves as code for “the

community thinks he’s guilty”- Role of the courts to guard the Charter rights of the accused even when attacked by

the irrational and afraid sentiment of the public

R v. NguyenCourt examined the meaning of “public safety” secondary grounds- There are a lesser class of serious cases – not all murders are the same:

Violence itself is not conclusive as would lead to frequent detentions malevolent rather than foolish or spontaneous intent? Violent person or caught in exigent circumstances

- Tertiary grounds meant to catch offence committed with wanton, deliberate or cruel violence, particularly against vulnerable victims such as children or aged person, or by persons with substantial criminal records or by persons already on bail or parole for similar offences

Reverse Onus Situations515(6): - (a) Reverse onus in listed circumstances including:

(i): charged with indictable offence (other than 469) alleged to be committed while on bail for another indictable offence (regardless of what stage the matter is at, including at appeal)

o Remember; per. The Interpretation Act, before the Crown elects, hybrid offences are presumed to be indictible

(ii): specified indictable “gang” offences; (iii): specified terrorism offences (iv) & (v): specified Security of Information Act offences (vi): firearms trafficking & importing (vii): when firearm used during listed serious violent offences (att. Murder,

sex assault with weapon, aggravated sex assault; kidnapping, hostage taking, robbery, extortion)

(viii): indictable offences where firearm etc used and accused was on a firearm prohibition;

- (b): Where the accused is not ordinarily resident in Canada- (c): Where the accused is charged with breaching bail or failure to appear (s.

145) while on bail for another offence (indictable or summary, but not 469); - (d): specified drug offences that carry maximum life sentence (trafficking, importing,

exporting, production)

522: 469 Offences- All the Justice can do is adjourn the matter – no jurisdiction to grant bail in a murder

charge

524(9): Bail Breach- Justice shall release accused if accused shows cause (reverse onus). - Justice can impose conditions

Breach of BailCould Lead To:Arrest Without Warrant

New Criminal Charge – Breach of Bail (145(3))o (3) It is an offence to fail to comply with a condition of bailo A new information is sworn alleging a new offence of breaching bail pursuant to

s. 145 for failing to abide by a term of previous releaseNOTE: hybrid offence – Crown can proceed by summary or by indictment

Warrant Issued for Breach of Bail (524)a. Alternative to a new charge, the Crown can proceed with a hearing under 524

- (1) – s. 524 warrant for breach of bail- (2) Warrantless arrest for breach of bail- (3) Once accused is arrested, is to be taken before justice- (8) If justice finds accused breached bail or committed new offence, SHALL cancel

previous release document- (9) Justice shall release accused if accused shows cause (reverse onus); and justice can

impose conditions- (10) If justice releases accused, must give reason (note, opposite from regular procedure

– reasons for detention)- (11) If Justice does not make a finding that accused breached bail or committed new

offence, Justice must release- (4)-(7) Process in SC, much like the PC process

NOTE: Does not charge a new offence; simply a mechanism to get accused back before the court to re-determine whether bail on the original matter should be revoked, or whether should be allowed to continue to remain in community (either on same conditions or more stringent conditions)

Reviews and Variations of Bail- Varying with Consent of Prosecutor (s. 515.1)- Reviews of Bail set by Provincial Court (ss. 520, 521, 523)- Reviews of Bail set by Supreme Court (ss. 520, 521)- Amending Police Undertakings (s. 503(2.2) & (2.3))- Thirty and Ninety Day Bail Reviews (ss. 525 & 526)

Pre-Trial Case ManagementPROCESS:

1) Initial appearance2) Crown provides disclosure

3) Arraignment hearing held4) Trial or Prelim Date is fixed5) Confirmation Hearing

a. Usually about a month before trial – make sure hat disclosure has been made and all the parties are aware of the relevant dates

Initial Appearances- How does accused know when to come to court?

Date on Appearance notice Date on Summons Date on Promise to appear Date on Court release document (undertaking or recognizance) Brought in by sheriffs (remanded by the court after a detention order)

- Which Courtroom? Names posted outside courtroom (for adults, not youths)

- Who’s there? Justice of the Peace presides Two Crown: federal and provincial Bulk of the list is provincial crown

- Order of Appearances Lawyers matters called first 9:00 for lawyers so can get to trial courts for 9:30 9:30 video appearances for accused in custody 9:30 non-represented accused

What happens? - Disclosure:

Crown gives accused the Disclosure Package – the “particulars” containing: information, police report, initial sentencing position (Stinchcombe)

- Initial Sentencing Position: This package includes Initial Sentencing Position [Rule 6(1)]

o Rule 6(1): At the initial appearance or as soon as practicable after it, the prosecutor shall provide the accused or his or her legal counsel with disclosure required by law.

o Initial sentencing position should reflect a discount for early guilty plea- Getting a lawyer

No lawyer? JP asks if you want one. If yes, adjourn couple of weeks to allow accused time to get one

- Timeline Set a timeline for when a plea has to be entered Will accused be making a legal aid application? To qualify, must be low income

and Crown must be seeking jail If not going to qualify for legal aid, referred to the Law Centre

- Adjourning to Another Appearance Date to allow: review of particulars

Securing of defence counsel retainer For resolution discussions/negotiations For discussions about admissions & time frame

- Guilty Plea at First Appearance Usually referred to speak with duty counsel if not with counsel Rule 5(5): Referred to judge’s court (101) for gp & sentencing that day (if at all

possible)Rule 5(5): If the accused indicates to the justice the intention to enter a guilty plea, the justice shall record the accused's intention to plead guilty and set the matter to be heard by a judge (a) immediately; or (b) on another date, if the justice is satisfied upon application by the prosecutor or the accused that the interests of justice may be served and an unnecessary trial date be avoided by adjourning to such later date.

Crown may seek adjournment for determining restitution amount, obtaining victim impact statement, preparation – but generally take the plea when it’s being offered

Appearance can be adjourned by email: Early appearances (before the time line) can be adjourned without necessity of a court appearance if email sent early the day before)

Disclosure Crown ObligationsThere is a general duty on the part of the Crown to disclose all material it proposes to use at trial and especially all evidence which may assist the accused even if the Crown does not propose to adduce it. This obligation is on-going; it survives the trial and includes any information for which there is a reasonable possibility that it may assist the appellant in prosecuting an appeal (Stinchcombe).

Limits on Crown Duty1. No duty to disclose the “clearly irrelevant,” however Crown duty to err on

side of disclosure2. Crown duty to protect privacy interests (addresses, phone numbers, etc.)

unless there is a clear necessity to disclose in the interest of trial fairness3. Privilege: informant, Crown privilege (investigative techniques),

solicitor/client4. Timing: to protect investigation, witnesses, police techniques

What do disclose?1. Everything, exculpatory or inculpatory, discovered in the course of the

investigation and subsequent court process (duty to disclose is continuing obligation).

2. Expert evidence – see s. 657.3 – no exclusion remedy in Code, but accused may have exclusion remedy under Charter

3. Evidence related to credibility of witnesses: Criminal records and O/S charges (accused); CR, if any, of witnesses. R. v. McNeil to be discussed.

4. Includes absence of evidence – no fingerprints located, door-to-door canvas that turned up nothing

5. Crown, (narrow sense – lawyers), must make the decision, not police or support staff

Disclosure: Defence ObligationsStarting point is that defence does not need to disclosure anything to Crown.

However, a few limited exceptions:1. Duty of Diligence: Defence must be diligent in seeking disclosure from Crown –

(Dixon) (Bramwell)2. Alibi: Defence must disclose an alibi. Possible adverse inference results from

failing to disclose alibi, but not exclusion of the evidence. The common law rule requires disclosure in a “time and manner which would permit a meaningful investigation”

3. Expert: statutory duty to disclose expert’s evidence (657.3). Remedies for failure, but again, no exclusion under code.

R v. StinchcombeLeading Case on the Principle of Full Crown DisclosureDefense Witness gave evidence at prelim, testimony was favorable to the accused. After statements favourable to the accused were made in a subsequent interview by the Crown, the Crown decided not to call on witness – did not disclose contents of the interview to the prosecution.Held:- Crown has an obligation to disclose all relevant information to the accused

Fruits of Crown’s investigation are not property of the Crown for use in securing conviction but are property of the public to ensure that justice is done

- Crown Discretion: (1) Crown must err on the side of inclusion – but is only required not disclose

information that is clearly irrelevant (2) Crown need not release information protected by solicitor-client privileges

- Timing of Disclosure: Crown must make initial disclosure before the accused is called upon to elect

the mode of trial or to plead obligation will be triggered by request from accused, which can be made at

any time after the charge- The obligation to disclose is ONGOING

Arraignment HearingPurposes of Arraignment Hearings:

Overall purpose: to ensure both parties are truly ready to set a trial date

ensure that defence is aware of Crown’s sentencing position & that parties have turned their mind to resolution

canvass admissions attempt to set realistic trial estimates If there is an election, the defense makes it

Rule 7: Arraignment Report(1) At the initial appearance

(a) the prosecutor shall file with the Court an arraignment report in Form 1 and provide a copy of the report to the accused's legal counsel or, if the accused is not represented by legal counsel, to the accused; and (b) the accused's legal counsel, if any, shall file with the court an arraignment report in Form 2 and provide a copy of the report to the prosecutor. Attend Before Judge if Arraignment Report not Filed in Time

(2) If a completed arraignment report is not filed as required under subrule (1), the justice presiding at the initial appearance may refer the matter to a judge under subrule 5(6).

Rule 8: Arraignment HearingWho Shall Attend (1) Unless a justice orders otherwise, it is a requirement of the Court in both indictable and summary conviction proceedings that the following persons attend the arraignment hearing:

(a) the accused; (b) the accused's legal counsel, if any, or other legal counsel designated by the accused's legal counsel for the purpose of that hearing; and (c) the prosecutor.

Powers of Judge (2) At an arraignment hearing, the judge may

(a) call on the accused to make an election or enter a plea to the charges;

An accused must be arraigned on the information before making an election

(b) make inquiries to i. assist in making an informed and accurate estimate about the length

of a trial or preliminary inquiry into the matter, or ii. facilitate the trial or preliminary inquiry, or simplify or dispose of

issues; (c) give directions to the trial scheduler about the time to be set for the trial or preliminary inquiry; (d) if there is no trial scheduler for that Court registry, set the time for the trial or preliminary inquiry; (e) make any order or give any direction that the judge considers necessary to achieve the purpose of these Rules, to facilitate the trial or preliminary inquiry or to simplify or dispose of issues;

(f) adjourn the arraignment hearing to enable compliance with any order made or direction given under paragraph (e); (g) adjourn the arraignment hearing and refer the accused, if not represented by legal counsel, to consult with duty counsel or other legal counsel of the accused's choice; and (h) hear one or more applications made in respect of the case, if it is convenient and practicable to the Court and all parties.

(3) Nothing in this rule abrogates solicitor-client privilege and the right of the accused to remain silent.

Guilty Pleas (4) If the accused enters a guilty plea at the arraignment hearing, the presiding judge may

(a) conduct a sentence hearing at that time; or (b) adjourn sentencing to a time that provides a just and timely disposition of the matter.

Setting Time for Trial or Preliminary Inquiry (6) If the judge presiding at the arraignment hearing refers the matter to a trial scheduler for scheduling, the trial scheduler shall (a) set a time for the trial or preliminary inquiry, as the case may be, or for the hearing of any applications in respect of the case, in accordance with

i. the time estimate determined by the judge, and ii. any direction given by the judge; and

(b) set a time for the accused's trial confirmation hearing, which time shall not be less than 30 days before the time set for the trial or preliminary inquiry under paragraph (a).

Fixing Date Done in office of Judicial Case Manager (JCM) Generally only defence counsel attends unless very serious matter where Crown has

been assigned prior to fixing of date Crown receives notice of the trial date later Pre-trial Conference with Administrative Judge in Chambers required if matter has

trial/prelim time estimate over 2 days

In Custody Accused 5(7) When accused is detained in custody, the process is still followed, but is abbreviated and expedited Expedited Arraignment

(7) If an accused is to be held in custody until trial or preliminary inquiry, as the case may be, or if a judge determines that an accused requires that a time for trial be expedited, a judge may

(a) order that the matter proceed directly to an arraignment hearing on a date determined by the judge after consultation with the trial scheduler; and

(b) make any order or give any direction that the judge considers necessary to achieve the purpose of these Rules, including, without limitation, directions respecting the preparation and filing of arraignment reports under rule 7.

Trial Readiness HearingsPURPOSE: From the court’s perspective; to recapture court time if matter is not going to proceed

Rule 10: Trial Confirmation Hearing(1) Accused Shall Attend Trial Confirmation Hearing Unless a judge orders otherwise

(2) Review of Trial Readiness Report: If on reviewing a trial readiness report the judge is not satisfied that the contents of the report indicate with reasonable certainty that the accused's trial or preliminary inquiry, as the case may be, will conclude within the time set, the judge may

(a) if necessary, adjourn the trial confirmation hearing to a time specified by the judge to enable the prosecutor, the accused and his or her legal counsel, if any, to attend before the judge for directions; and

(b) make any order or give any direction that the judge considers necessary to achieve the purpose of these Rules

. Rule 9: Trial Readiness Report

Trial readiness forms (1) At the trial confirmation hearing

(a) the prosecutor shall file with the Court a trial readiness report in Form 3 and provide a copy of the report to the accused's legal counsel or, if the accused is not represented by legal counsel, to the accused; and

(b) subject to subrule (2), the accused's legal counsel, if any, shall file with the Court a trial readiness report in Form 4 and provide a copy of the report to the prosecutor.

(2) Subject to paragraph 10(2)(a), the accused's legal counsel, if any, is not required to attend the trial confirmation hearing IF the trial readiness report in Form 4 is filed with the Court and provided to the prosecutor at least seven days before the trial confirmation hearing.

AdjournmentsShould be made as soon as counsel becomes aware of the need

Grounds for granting an adjournment:1. no laches (laziness) by the party applying for the adjournment2. Material witness3. witness likely to attend if granted the adjournment

a. Adjourn jury trial, s. 645b. Adjourn bail hearing, s. 516c. Adjourn plea, s. 606(3)d. Adjourn prelim, s. 537(1)(a)e. Justice adjourn absolute jurisdiction offence to PCJ, s. 536(1)f. Justice adjourn to PCJ where accused elects PCJ, s. 536(3)(a)g. Adjourn before or during summary trial, s. 803(1)h. SCJ/PCJ may adjourn non-jury trial, s. 571i. SCJ may adjourn jury trial, s. 645(2)j. Adjourning a conditional sentence order breach hearing, s. 742.6(3.3)k. Adjournment by a trial Court before or after plea, s. 669.1(2)

Law Society: Professional Conduct RulesWithdrawal for non-payment of fee

6. If a lawyer and client agree that the lawyer will act only if the lawyer's fee is paid in advance, the lawyer must confirm that agreement in writing to the client, specifying a payment date.7. A lawyer must not withdraw because the client has not paid the lawyer's fee when due unless there is sufficient time for the client to obtain the services of another lawyer and for that other lawyer to prepare adequately for trial.

Procedure for withdrawal 8. Upon withdrawal, the lawyer must immediately:

(a) notify the client in writing, stating:(i) the fact that the lawyer has withdrawn,(ii) the reasons, if any, for the withdrawal, and(iii) in the case of litigation, that the client should expect that the hearing

or trial will proceed on the date scheduled and that the client should retain new counsel promptly,

(b) notify in writing the court registry where the lawyer's name appears as counsel for the client that the lawyer has withdrawn and, where applicable, comply with any statutory requirements,

(c) notify in writing all other parties, including the Crown where appropriate, of the severance or withdrawal,

(d) account to the client for:(i) any money received for fees or disbursements, and(ii) any valuable property held on behalf of the client, and(e) take all reasonable steps to assist in the transfer of the client's file.

Limited retainer 10. A lawyer who acts for a client only in a limited capacity must promptly disclose the limited retainer to the court and to any other interested person in the proceeding, if failure to disclose would mislead the court or that other person.

Appearance of accusedObviously more cost-effective to not have an accused appear in person when in custody.

Use of video is promoted by the Court

Generally viewed favourably by accused persons Sometimes interferes in counsel’s ability to get instructions Interpreters use

Applicable Sections: 515(2.2): accused can appear by video for bail hearing

o Crown’s consent required if witness will testify 537(1)(j): video or counsel appearance by accused with consent where no

witnesses 537(1)(j.1): accused can be out of court for prelim

o on accused’s request and on reasonable conditions 537(1)(k): in-custody accused can be ordered to appear by video for parts of

prelim o where no evidence called o as long as accused can communicate privately with counsel

536.2: election or re-election may be done in writing without personal appearance

650: accused must be present for his jury trial except:(1.1) Can appear by video or counsel when no evidence called(1.2) In-custody accused can be ordered to appear by video for part of trial

where no evidence called as long as accused can communicate privately with counsel

(2)(a): court orders accused removed because disruptive(2)(b): court allows accused not to appear and court can impose conditions(2)(c): court orders accused removed so protect accused’s mental condition

(unusual) 650.01: “designated counsel” may appear for accused

o when no oral evidence, no jury selection 650.02: Crown or defence counsel may appear by technology

o as long as simultaneous communication possible 800: defendant may appear personally or by counsel or agent at trial

o but court may require accused’s attendance & issue warrant for that purpose

848: if accused appears by video from jail, Court must ensure the accused understands the proceedings and decisions made during the proceedings are voluntary

Appearance of Crown799: Dismissal for want of prosecution - When Crown has been given notice but doesn’t appear, the Court may dismiss the

information

650.02: Crown or defence counsel may appear by technology as long as simultaneous communication possible

Withdrawal of charges and stays of proceedings579(1): entering a stay - Is directed by the Crown - Does not require the Court’s approval or direction- Can be done in Court on the record, or out of Court

579(2): procedure for re-commencing previously stayed proceedings

Unsealing orders and editing of Affidavits and Informations to ObtainAutomatically Sealed187: Part 6 (wiretap authorizations) - these documents were automatically sealed without the need of a separate sealing

order. - Section 187 outlines the procedure to be followed for opening and vetting the

documents.

Not Automatically Sealed487.3: For other warrants not made under Part 6 of the Code (not wiretap) a separate sealing order was required at the time of application. The unsealing application for these warrants are outlined in section 487.3.

Unsealing orders are usually provide for a copy of the documents to be provided to the Crown who can vet (edit) the documents before disclosing to defence.

RESOLUTION DISCUSSIONSNegotiations may include:

Global charges: joining several counts into one count. Plea to an attempt instead of completed offence Lesser included offences: assault instead of assault causing bodily harm Stay of Proceedings on some or all charges. Diversion Stay on bail for while & sop Alternative charges (non-criminal alternatives such as Motor Vehicle Act) Agreement not to proceed on other pending matters NON-CRIMINAL ALTERNATIVES:

o such as Motor Vehicle Acto s. 810 recognizance or common law peace bondo firearm prohibitions

Remember 606(4): Court can accept a guilty plea to another offence, as long as the

facts support it and the Crown consents to accepting the plea. If plea accepted, the accused is sentenced for the other offence, not the one originally charged.Commonly used to accept plea:

To an included offence To a different offence made out on the facts alleged Motor Vehicle offence instead of Criminal Code

Preliminary InquiriesOFFICIAL PURPOSE: Court Perspective; is there Sufficient Evidence to Order Accused to Stand Trial?

1. Screening Function: to determine whether the Crown has sufficient evidence to warrant committing the accused to trial; to filer out weak cases that do not merit trial.

a. The paramount purpose of a preliminary hearing is to “protect the accused from a needless, and indeed, improper, exposure to public trial where the enforcement agency is not in possession of evidence to warrant the continuation of the process.” (Skogman)

2. Ancillary Discovery Function: The Courts recognize that the preliminary hearing has an ancillary role as a discovery mechanism, permitting the accused with an early opportunity to discover the Crown’s case.

a. However, some courts have suggested this is an “indulgence” granted to an accused as opposed to a right.

475(1) When all the evidence has been taken by the justice he shall- (a) if in his opinion the evidence is sufficient to put the accused on trial for the

offence charged or any other indictable offence in respect of the same transaction

Commit the accused to Trial- (b) discharge the accused, if in his opinion upon the whole of the evidence no

sufficient case is made out to put the accused on trial.

THRESHOLD: Is there evidence upon which a reasonably jury acting judicially could convict? (Sheppard) (Arcuri)- Has the Crown led enough evidence that it is POSSIBLE to support a conviction- Without sufficient evidence to make conviction possible, a judge takes the case away

from a jury

R v. ArcuriThe Preliminary Inquiry Judge has a should weigh the evidence ONLY in the limited sense of assessing whether a properly instructed jury, acting reasonably COULD convictAccused charged with murder. At the prelim, Crown presented a circumstantial case, and the defense called two witnesses that gave arguably exculpatory testimony. TJ rejected defense argument that he should weigh the evidence as a whole (weigh the Defense allegedly exculpatory evidence against the Crown’s evidence). TJ committed the accused to trial.

Held:- The limited weighing by the preliminary inquiry judge does not require the

preliminary judge to draw inferences from the facts or to assess credibility- Direct v. Circumstantial evidence

Where the Crown has presented direct evidence for every element of the offence, the preliminary judge’s job is essentially done

Where the Crown has presented circumstantial evidence, the prelim judge must engage in a limited weighing of evidence – decide whether guilt could reasonably be inferred

USA v. ShephardA judge may find that there is insufficient evidence to establish a prima facie case, but should not weigh the evidence at this stage to determine its credibility judge MUST commit accused person for trial if there is some evidence that could lead to convictionTrial judge heard evidence on accused brought under warrant of Extradition. TJ held that the evidence produced for a warrant of Extradition was so “manifestly unreliable” that he “withdrew the case from the hands of the jurors”Held:- Appeal allowed – Trial Judge erred in weighing the credibility of the evidence at a

preliminary inquiry, rather than merely its sufficiency- Crown need only produce some evidence which, IF BELIEVED, is sufficient to raise

a prima facie case

Statement of Issues for Preliminary Hearing536:

Request for particular witnesses or issues to be heard - s. 536.3 Mandatory that the party requesting a prelim (usually defence) provide a

statement of issues and the witnesses it wishes to canvass. Attempting to ensure the prelim has a purpose Requests are not binding on the Crown.

Focused preliminary hearing, s. 536.5 & 549(2) Agreement to limit scope – s. 536.5 Any agreement on issues or facts must be recorded at end of prelim or filed

with court – s. 536.4(2) or 536.5 Are not conducted in Victoria

Powers of a Preliminary Hearing JudgeGeneral administrative powers s. 537

1. Order change of venue, ban on publication (mandatory notice to accused, mandatory order if requested by accused), or close the courtroom

2. Control dates and adjournments3. Control presence of accused, video appearance, agency4. Custodial remand for identification or, if no previous release by justice or judge

under Part XVI, remand in custody generally

5. Control procedure and conduct of counsel

Absconding AccusedContinue and complete in the absence of an absconding accused, or issue warrant and adjourn – s. 544

NO Charter jurisdiction of a preliminary inquiry judge No power to grant Charter remedy – not a court of competent jurisdiction Mills,

[1986] 1 S.C.R.863; Hynes, [2001] 3 S.C.R. no jurisdiction to review disclosure and order same where deficient, but can order

adjournment while SC makes the call Girimonte, (1997) 121 CCC (3d) 33 (Ont. C.A.) (Though CCFM rules assist in addressing this problem in BC)

As a corollary, prelim judge has power to control defence and limit or completely prohibit exploration of evidence that would only have relevance to a Charter application. Sometimes however Crown will join with defence in seeking to explore Charter issues and judges will usually allow it if both parties agree

“Contempt” Powers. 484: power to preserve order in court

Deal with “Difficult” Witnesses Incarcerate witnesses who refuse to testify – s.545Order a witness to enter into a recognizance – s.550

Power to discharge or commit to trial Make a committal, or OST (Order to Stand Trial); or discharge the accused – s. 548

Applications - Pre-Trial & OtherParties should avoid pre-trial if at all possible; they are time consuming and energy-sucking. Always attempt to negotiate a resolution, and consent to applications if at all reasonable.

Types of Applications:- Disclosure- Procedural

Applications regarding conduct of the trial Applications regarding Form of the Charge

- Charter applications- Admissibility of Evidence

Timing of applications:- Generally, Charter applications should be heard before trial (Kutynec)

They are time-consuming

Jurisdiction to Hear Applications before Jury Selection- 645(5) Trial Judge: where trial is to be judge and jury, this section gives jurisdiction

to the trial judge to deal with applications prior to jury selection- Bill C-2 (551.1): a case management judge (CMJ) may be appointed after the filing

of an indictment prior to jury selection 551.3(g): CMJ may adjudicate issues of

o Disclosureo Admissibilityo Chartero Expert witnesseso Severance of counts of accused

551.7: JOINT HEARINGSo This is Newo Provides for a joint hearing of disclosure, admissibility or Charter

issues in related trials.o In determining whether joint hearing should be held, the Chief Judge is

to consider the degree of similar evidence

Mega-Trial Bill C-2“Fair and Efficient Trial Act”- traditionally, TJ had to make decisions about admissibility, procedure, etc. - NOW – a Case Management Judge can make decisions on those matters beforehand

Facilitates jury trials, long applications can be decided before lengthy voir dires which break up the flow of trials must be held

Amended the CC to allow for:- The appointment of a Case Management Judge (CMJ)- Delay of severance orders and making decisions prior to severance binding in severed

proceedings- Provide for the holding of joint hearings on pre-trial applications- In case of a mistrial, certain decisions made during the trial are binding on the parties

in any new trial

Colleen It is unclear whether CMJs will be appointed in smaller cases or just the mega cases like Air India or Pickton- One possible advantage: keeping TJs from being seized to a case so which may not

be tried for years, to facilitate schedulingOne possible Danger: the availability of CMJs will actually increase the number of early pre-trial applications overuse of CMJs is a concern of the CBA

Voir Dire“to speak the truth” A trial within a trial

Governed by Supreme Court Rule 2: Notice of Application

- (6) The judge hearing an application may receive viva voce evidence in addition to or in lieu of affidavit evidence.

Voir Dire Not Automatic- The Court ought not to embark on a lengthy voir dire which holds no promise of

success for the accused. (Murran) The Supreme Court of Canada has recently reiterated the importance of

“avoiding the inefficient use of court time” and specifically endorsed the approach described in Dietrich, Kutynec, and Vukelich.

At the least, counsel for the accused should be able to state with reasonable particularity, the grounds for the application (Kutynec)

Vukelich application application by Crown objecting to the holding of a voir dire on the basis that there is no likelihood of success of the defence application.

- R v. Pires, R. v. Lising One such mechanism is the power to decline to embark upon an evidentiary hearing at the request of one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issues before the court.

Voir Dire Procedure R. v. Kutynec - The Trial judge is to decide what procedure to be followed;

At the least, counsel for the accused should be required to state with reasonable particularity the ground upon which the application for exclusion is made

o If the statement of grounds does not disclose a basis upon which the court could make an order excluding the evidence, the application may be dismissed without hearing evidence

It would be a rare case where:o the Crown has provided full disclosureo the accused has had an opportunity to have a preliminary inquiryo the matter has been thoroughly pre-triedo that the defence would be unable, at the outset of the trial to outline

the nature of the alleged violation and to summarize the nature of the evidence counsel will call on the application; and

Admitting voir dire evidence at the trial - In a Judge and Jury Trial

The evidence that the judge decides in the voir dire is admissible must be “reheard” by the jury

- In a Judge Alone trial The evidence can “roll over” from the voir dire into the trial proper Judge must be careful to expressly state what evidence is rolling over and

what is excluded

Pre-Trial ConferenceMandatory under 625.1

Happens after the judge at a Preliminary Inquiry has committed a matter to trial

Governed by Supreme Court Rule 5- (1) when accused is to be tried by a jury, pre-trial conference shall be held at date,

time, place, and in the manner ordered by the judge- (2) shall be attended by:

accused counsel for accused trial counsel for Crown and senior Crown

- (6) purpose is to consider matters that will promote a fair and expeditious trial- (7) Unless otherwise ordered, the conference shall be conducted in chambers and

there shall be a full and free discussion of the issues raised, without prejudice to the rights of the parties.

- (8) Shall be recorded- (9) Crown counsel shall have available at the conference the indictment or draft

thereof to be preferred at the trial.- (10) The conference clerk shall record on the file any order made by the judge, as

well as any special arrangements necessary for the conduct of the trial, such as for interpreters or electronic equipment.

- (11) At the conference, counsel shall disclose to the presiding judge the nature and particulars of any preliminary motion that counsel intend to make.

- (12) The presiding judge, in his or her discretion, may direct that the motion be reduced to writing and heard at such time prior to the date fixed for trial as the judge deems fit, or the judge may direct that the motion be heard at the outset of the trial.

- (13) At the conference, counsel shall disclose to the presiding judge the nature and particulars of any matter that may arise in the course of the trial that would ordinarily be dealt with in the absence of the jury after it has been sworn, and the anticipated length of time the matter would require for hearing.

- (14) The trial judge, in his or her discretion, may direct that the matter be dealt with before any juror on a panel of jurors is called , at such date and time as the judge deems fit, or may direct that the matter be dealt with in the absence of the jury after it has been sworn.

- (17) Nothing contained in Rule 5 shall preclude the court from conducting other informal pre-trial conferences in addition to the mandatory conference provided for in subsection 625.1(2) of the Code, on such terms as the court sees fit.

- (18) The Chief Justice may issue such practice directions as may be required to give full force and effect to Rule 5.

Notice requirementsSupreme Court Rule 2: Notice of Application

• (1) All pre-trial applications in criminal proceedings shall be commenced by a notice of application in Form 1.• (2) Every notice of application shall set forth fully the grounds upon which it is brought and the particular statute provisions or other laws upon which it is based and shall include an estimate of the time needed for the hearing of the application.• (3) Unless these Rules otherwise provide or a judge of the court otherwise directs, a notice of application shall be served at least five days before the date stated in the notice for the hearing of the application.• (4) Unless a judge of the court otherwise orders, a notice of application shall be filed and the application shall be heard at the registry at the place where the trial is to be held.• (5) Except for subrule 51(10), Rule 51 of the Rules of Court of the Supreme Court as to affidavits applies equally to these Rules.• (6) The judge hearing an application may receive viva voce evidence in addition to or in lieu of affidavit evidence.• (7) A notice of application for leave to challenge potential jurors for cause on the ground of prejudice shall be filed and delivered to any opposing party at least 30 days before the date set for jury selection.

Preferring the IndictmentRemember: - The Information is the document of the Provincial Court- The Indictment is the information of the Supreme Court

Don’t confuse this with the Crown “proceeding by indictment”- This section basically refers to what the Crown can do with the indictment once at the

Supreme Court

In the case of:- Judge and Jury 574

Preferring Indictment for Judge & Jury -- Crown can prefer an indictment on:o any charge for which the accused was ordered to stand trial;o any charge disclosed by evidence at the prelim (in addition, or in substitution

for)o if no prelim, any charge in information and any “included” charge, s.

574(1.1) o other offences with consent of accused, 574(2)

- Judge alone 566(1) a trial for an indictable offence shall be on an indictment unless it is a trial before a

provincial court judge (PCJ)- Direct Indictment 577

preferring a direct indictment. Requires consent of the AG or DAG.

589: can’t charge another offence with murder unless it is murder, or it arises from the same transaction, or unless the accused consents; or if re-elect Judge alone (requiring consent of defence & Crown), SC judge can order trial of any offence in conjunction with s.469 offence (murder), s. 473(1.1)

Example: can’t charge sexual assault of one woman on one date and then sex assault and murder of another woman on a later date.

576: No indictments allowed other than those provided for in the Criminal Code.

566(2): preferring an indictment for judge alone trial. Section 574 & 576(1) apply.

What goes in an Indictment?- 580: paper & in Form 4 (applies to judge alone as per s. 566(1) & (2))- 581: Single transaction, wording: popular wording, words of the enactment, or other words

sufficient to give notice; sufficient detail; may refer to section number …- 583: Things that don’t have to be in indictment- 664: no reference to previous conviction where great punishment may be imposed as a result

of previous conviction

Disclosure ApplicationsFirst Party (Stinchcombe)Crown is obligated to disclose any information in its possession for which there is a reasonable possibility that it may assist the accused in making full answer and defence Stinchecombe

Exceptions:- information that is clearly irrelevant- information that is privileged

Crown has a discretion regarding the timing of disclosure such as when disclosure is delayed to protect an on-going investigation or to protect a witness

R v. McNeilRecords in possession of one authority are not necessarily in possession of any other Crown authority – BUT records relating to police misconduct involved in the investigation of the accused properly fall within the scope of first party disclosureThe accused was convicted on multiple drug charges. The arresting officer was the Crown's main witness. After his conviction but before sentencing, the accused learned that the arresting officer was engaged in drug-related misconduct. Accused sought production of internal investigation documents, Crown resisted.Held:- Stinchcombe disclosure is the standard

Crown must disclose all relevant information, including not only information related to those matters the Crown intends to adduce in evidence against the accused, but also any information in respect of which there is a reasonable possibility that it may assist the accused in the exercise of the right to make full answer and defence

- Records in possession of one Crown authority are not necessarily in the possession of another Crown authority

- Records relating to findings of serious misconduct by police officers involved in the investigation properly fall within the scope of the "first party" disclosure where the police misconduct is either:

(1) related to the investigation (2) the finding of misconduct could reasonably impact on the case against the

accused

Third Party (O’Conner)Procedure for applying for the disclosure of records held by a third party where the accused is

not charged with a sexual offence (or the accused is charged with a sex offence, but the record is not one pursuant to 278.1)

Remember McNeil all state authorities do not constitute one indivisible entity. Crown entities other than the prosecuting Crown are generally third parties under the O’Connor production regime.

PROCEDURE:1) serve subpoena duces tecum (bring specified documents)2) Bring application with supporting affidavit to show records sought are likely relevant3) Application brought before trial judge4) If records privileged, disclosure barred unless accused’s innocence at stake (rare) or there

is a serious public safety risk (smith v. jones)

If Records are NOT privileged Judge applies Two-Stage Test: Stage 1 If accused satisfies Court the record is likely relevant, the record is shown to the Court- Not an onerous burden: no weighing of competing interests at this stage- Is there a reasonable possibility the disclosure sought is logically probative of an issue? Stage 2 At stage two, the judge examines the record and determines if production to accused should be ordered (and if so, to what extent)- Court must determine the “true relevancy” of the record in the context of the case against the

accused.- The judge must BALANCE the accused’s right to a full answer and defence against the

victim’s privacy interests- Factors to consider: (McNeil)

(a) The extent to which the record is necessary for the accused to make full answer and defence

(b) The probative value of the record in question (c) The nature and extent of the reasonable expectation of privacy in the

record (d) Whether production of the record would be premised upon any

discriminatory belief or bias (e) The potential prejudice to the complainant’s dignity, privacy, or

security of the person that would be occasioned by the production of the record in question

Third Party in the Case of Sexual Offences (278.1)Procedure for when a “record” with an expectation of privacy is in the possession of the Crown, police, or third party AND the accused has been charged with a sexual offence

278.1 “Record”: Any record containing personal information for which there is a reasonable expectation of privacy

278.2 “Non-Disclosure Rule”: - (1) “Records” not to be disclosed except in accordance with this procedure for certain

(sexual) offences- (2) non-disclosure rule applies even if record in possession of Crown or police unless witness

expressly consents, but Crown must notify defence of its possession

278.3 The Application:

- (1-2) Application must be made to trial judge, not at prelim- (3-6) application requirements:

what records requested why the records are likely relevant

o can’t be one of the listed “not good enough” reasons (a) that the record exists (b) that the record relates to medical or psychiatric treatment, therapy or

counseling that the complainant or witness has received or is receiving (c) that the record relates to the incident that is the subject-matter of the

proceedings Strange, as this is almost certainly basic relevance

(d) that the record may disclose a prior inconsistent statement of the complainant or witness

(e) that the record may relate to the credibility of the complainant or witness

(f) that the record may relate to the reliability of the testimony of the complainant or witness merely because the complainant or witness has received or is receiving psychiatric treatment, therapy or counseling

(g) that the record may reveal allegations of sexual abuse of the complainant by a person other than the accused

(h) that the record relates to the sexual activity of the complainant with any person, including the accused

(i) that the record relates to the presence or absence of a recent complaint

(j) that the record relates to the complainant’s sexual reputation (k) that the record was made close in time to a complaint or to the

activity that forms the subject-matter of the charge against the accused service with 7 days notice to Crown, witness, record holder and others

Stage 1 Should the Record by produced to the Judge for Review? (Likely Relevance PLUS Balancing)- 278.4: A hearing is held to determine the threshold question as to whether the record should

be produced to the Judge for review that hearing is in camera (not public) witness & record holder have standing witness not compellable

- NEW Balancing Element: Likely relevance is no longer enough. The production of the record must also be “necessary in the interests of justice” (s. 278.5(1)(c)).

This involves a balancing of 8 factors. Remember, there was no balancing in stage 1 of the O’Connor

test SCC interprets the legislation to mean that these factors are just to be

“taken into account” – they are just advisory (Mills) If there is an uncertainty as to whether production is required for full

answer and defence, the court should err on the side of production (Mills)Stage 2 Should the Record be Disclosed?- 278.6: if threshold test met, judge reviews the record to determine if record should be

disclosed to defence (2-3) can hold a hearing to assist in determining whether record should be disclosed

- 278.7: outlines test for determination whether record should be given to accused judge shall consider the salutary and deleterious effects of the determination on the

accused’s right to make a full answer and defence and on the right to privacy and equality of the complainant/witness. (278.7(2))

Factors = the 5 in O’Conner, PLUSo (a) society’s interest in encouraging the reporting of sexual offenceso (b) society’s interest in encouraging the obtaining of treatment by complainants

of sexual offenceso (c) the effect of the determination on the integrity of the trial process

Applications Regarding Trial ConductJoinder of Offences or Accused591(1): Joining Counts any number of counts for any number of offences may be included in

one indictment

574(1): counts originally charged in separate informations may be joined in the same indictment after the preliminary hearings (assuming accused was ordered to stand trial at the prelim)

EXCEPTION: Murder - 589: can’t charge another offence with murder unless it is murder, or it arises from same

transaction, or unless the accused consents;

Other than this murder exception – generally nothing in Code prevents Crown from laying an information with multiple types of charges, multiple dates, multiple accused

Severance of Offences or Accused591(3) Severance (of accused and counts)- The court may, where it is satisfied that the interests of justice so require, order:

(a) that the accused or defendant be tried separately on one or more of the counts (b) where there is more than one accused or defendant, that one or more of them be

tried separately on one or more of the counts

591(4): Order of Severance:- may be made before or during the trial but, if the order is made during the trial, the jury shall

be discharged from giving a verdict on the counts (a) on which the trial does not proceed (b) in respect of the accused or defendant who has been granted a separate trial

ONUS: is on the accused to establish, on a balance of probabilities, that the interests of justice require severance- Court will balance interest of justice in avoiding multiplicity of proceedings v. potential

prejudice to accused of continuing as is

WHICH JUDGE: In the past, only the trial judge could sever counts/accused (Litchfield), but now a Case Management Judge can so order (551.3)

DELAY: Bill C-2 A judge can delay a severance application in order to facilitate efficient pre-trial application decisions

- severance can be delayed until combined applications are dealt with, in the interests of

efficiency

FACTORS TO BE CONSIDERED: The “interests of justice” in severance require a judge to balance (1) society’s interest in an efficient and cost-effective trial with (2) the possibility that evidence relevant to one offence but not another may prejudice the accused (Last)- Severance of Counts

Closeness in time between the counts Similarity of the counts Whether one or multiple victims Degree of overlap in evidence called whether accused intends to testify on one count, but not other(s)

o judge need not weigh heavily a vague indication of intent to testify as to only one charge

- Severance of Co-Accused One incident participated in jointly by both accused? Cut throat defences

o Strong presumption in favour of joint trials when co-accused blame each other for the offence so that accused can not blame each other at separate trials

o Doherty JA in Suzack Separate trials where co-accused are blaming each other for the crime raise not only the danger of inconsistent verdicts, but also a real concern that the truth will not be discovered at either trial.

Evidence admissible against one accused but not the other, but which implicates the other

Jury trial or judge aloneo More concerned about prejudice to an accused with a jury

One co-accused with to call the other co-accused as a witness? Substantial difference in the strength of the case against one accused than against the

other accused? If an accused’s right to a fair trial will be impaired because the accused’s ability to

cross-examine a co-accused has been limited by evidentiary rulings which were intended to protect the fair trial rights of the co-accused (ex. exclusion of statement or prior testimony)

R v. LastThe “interests of justice” in severance require a judge to balance (1) society’s interest in an efficient and cost-effective trial with (2) the possibility that evidence relevant to one offence but not another may prejudice the accusedAccused charged in one indictment with 2 counts of sexual assault. Trial judge dismissed his application to sever the indictments. Accused appealed on the grounds that being tried for the two crimes together threatened to prejudice the jury against him.Held:- Charges should be severed- In this case, the charges were not closely liked – the benefits to the administration were

minimal, while the potential risks of character evidence and witness bolstering were high

Change of Venue Courts have emphasized that its discretion should only be exercised with great caution and only on strong grounds

599: Change of Venue Judge can order that a trial be held elsewhere in the province if expedient to the ends of justice:

Test- (1) Has it been made to appear that there is a fair and reasonable probability (not just

possibility) of partiality or prejudice in the jurisdiction?- (2) Is it necessary in order to ensure that the accused has a fair trial with an impartial jury?.Relevant factors re fairness to accused R. v. Gunning: - the presence or absence of prejudicial publicity; - a degree of prejudicial publicity that could be described as extensive;- pronounced hostility towards the accused;- widespread sympathy for the victim- a frightened or enraged community.- Local knowledge of admissible evidence is not as significant on a change of venue

application as local knowledge of “matters which would be inadmissible at trial” Whether the accused is mentioned by name is a factor to be considered (Collins)

This Power is Rarely Used: A fair trial requires “impartial jurors who will abide by their oaths and accept direction from the trial judge”; it does not require a panel of jurors who have “never read or heard about the case.” R. v. Glowatski

Options short of change of venue:- Warnings to jury- Challenge for cause- Consent to judge alone

Removal of CounselExtreme measure, only to be brought in exceptional circumstances

Remember counsel are officers of the court first, not just mouthpieces for their clients

(defense) Right to retain and instruct counsel of one’s choice must be balanced against the public interest in the administration of justice

R v. Neil a breach of the “Duty of Loyalty” is sufficient to warrant disqualification of counsel- Duty of Loyalty Includes:

Duty not to misuse or abuse confidential info. Duty to avoid conflicting interests Duty of commitment to the client’s cause Duty of candour

Applications Regarding Form of ChargeApplications to QuashThe defense can apply to quash the information prior to plea (or the indictment after plea with leave of the court 601(1))

- A simple missing element will not necessarily render an information void, it may simply be AMMENDED (601)

- An information or indictment can be quashed when: (1) It discloses no offense known to law (2) It is so badly drafted that it fails to provide notice of the offence charged Possible Situations:

o Information is not sworno Information was sworn outside information period (summary)o Information is not datedo Informant is not named

Applications to Amend Information/IndictmentIf the information/indictment reveals an offence but is defective or inaccurate in some way

601: Grants the court broad powers to amend the wording of a charge as long as it does not prejudice the defendant in his defence- (3) court can amend the charge at any stage of the proceeding

Bill C-2: amended the rules to allow the court to amend defects in direct indictments like they can with normal indictments

C Information: act to correct or amend a charge or add further charges that the crown wishes to try together- If there is no limitation period (or if still within the limitation period) the Crown may have a

C Information sworn- The same bail conditions apply to the new charges as to the old charges (523(1.1))

Evidentiary ApplicationsTIMING:- Where an Application is a Pre-Condition to Admissibility

(1) Voluntariness (2) Cross-examine complainant re: prior sexual history (3) Expert qualifications (4) Principled Exception to hearsay rule

- Where an Application is an Objection to Admissibility Where hearings are triggered by an exception – the holding of a voir dire is usually

discretionary Objections:

o Hearsayo Prior consistent statement evidenceo Character evidence

Applications to Cross-Examine complainants re:

Prior Sexual History276 Governs evidence of past sexual history - (1) Evidence of past sexual activity, with accused or other person, never admissible to

support the Twin Myth inferences: more likely to have consented less worthy of belief

- (2) Evidence of other sexual activity of complainant not admissible UNLESS these special procedures followed & judge determines the evidence:

(a) is of specific instances (not just general reputation) (b) is relevant (c) probative value is not substantially outweighed by danger of prejudice to proper

admin of justice

Application 276.1 lists requirements for application- 7 day notice to prosecutor unless shortened by court- Can be made at trial or preliminary hearing

PROCESS:Stage 1 276.1 Threshold Test – Is a Hearing Merited?- Judge applies a threshold test to consider whether application merits a hearing

276.1 properly filed AND 276(1) capable of being admissible

- Jury & public excluded during this threshold consideration of the application. - On threshold test, doubt given to accused – should continue to Stage 2 hearing if the evidence

is not clearly inadmissibleStage 2 276.2 Hearing to Determine Whether AdmissibleAfter the judge has considered the application and determined that a hearing is merited: - (1) the jury & public is excluded- (2) complainant can not be required to testify (not compellable)- (3 – 4) reasons must be given. - TEST outlined in 276(2): the evidence

(a) is of specific instances (not just general reputation); (b) is relevant; (c) probative value is not substantially outweighed by danger of prejudice to proper

admin of justice.

Charter ApplicationsWhen an accused brings an application alleging a violation of Charter rights, the onus of proof is on the accused, and the burden is a balance of probabilities (Sipes)

CHARTER SECTIONS ENGAGED2 Fundamental Freedoms [conscience, religion, belief, expression, assembly and

association] 7-14 Legal Rights - section 7: broadest legal right - sections 8–10: protects those subject to investigation by the state - sections 11 – 14: protects those charged and tried for offences 15 Equality Rights 25-28 Aboriginal Rights, Multicultural Heritage and Gender Equality guarantees

APPLICATION OF THE CHARTER32 The Charter applies to Parliament and the government Canada and to Provincial

Legislatures and provincial governments [A person may rely on the Charter to challenge (1) the validity of a law or (2) the

actions of a government official or agent. However, the Charter does not apply to actions between private citizens.]

CHARTER LIMITS1 Rights and freedoms in the Charter are subject to "reasonable limits" 33 Notwithstanding/Override Clause - Parliament/provincial legislatures may expressly

declare that a statute shall operate notwithstanding that it may violate s. 2 or ss. 7-15. This Charter override is only in force for a maximum of five years unless reenacted

CHARTER REMEDIES52 No Force and Effect -- The Constitution (including the Charter) is the supreme law of Canada and any law that is inconsistent with the Charter is, to the extent of the inconsistency, of no force or effect 24(1) Remedy for Infringement -- Where a Charter right or freedom has been infringed a

Court may apply "such remedy as the Court considers appropriate and just in the circumstances"

24(2) Exclusion of Evidence -- Where evidence was obtained in a manner which infringes a Charter right or freedom, that evidence shall be excluded if it is established that its admission would bring the administration of justice into disrepute

R v. KutynecIn the interests of conducting an orderly trial, the trial judge is entitled to insist, and should insist, that defence counsel state his or her position on possible Charter issues either before or at the outset of the trialAccused charged with DIU, Crown presented its case to no objection. Defense then brought a motion for a voir dire where it sought to exclude the evidence already heard on 24(2) grounds (claimed arbitrary detention had led to the breathalyzer)Held:- Appeal Dismissed - When Crown has made full disclosure, and the accused has had an opportunity to have a

preliminary inquiry and the matter has been “thoroughly pre-tried”, the accused should be able to outline an alleged Charter violation at the outset of the trial

Interests of efficient trial in this case outweighed possible prejudice from alleged Charter breach

- HOWEVER Judge retains residual discretion to examine the admissibility of evidence at some later point in the trial, should the need arise

R v. SipesThere is no set of rules governing application notice periods. When the judge is satisfied that counsel for both sides are working hard to produce the applications, the circumstances of this case and limitations on resources available to counsel should mean a mitigated timelineJudge, upon hearing pre-trial Charter applications, requested each applicant provide written notice and particulars of each application two weeks in advance, with an outline of argument and list of witnesses. Each respondent must also file a written response and a list of witnesses. Defense counsel submitted that this placed an unfair burden on the defence, and was not necessary as a matter of law.

Held:- Charter has made trials longer and more complex – it is the judge’s duty not only to ensure a

fair trial but an efficient one- No concrete set of rules governing periods of notice for applications – though the judge

undoubtedly has the discretion to request a specific timeline Values being preserved:

o Sensitivity to timing of disclosure and available resourceso Efficient trial proceedingso ufficient time to enable each respondent to clearly understand the application

and prepare a response- In this case:

The judge held that written notice was not required until 10 days before the application

If the defence are unable to provide adequate notice of an application, they should request an adjournment of the application until they are able to do so

R v. OakesEstablished the Oakes Test for Justifiability under s.1 of a law in breach of the CharterConstitutionality of s. 8 of the Narcotic Control Act, c. N-1. The section provides, in brief, that if the Court finds the accused in possession of a narcotic, he is presumed to be in possession for the purpose of trafficking. Unless the accused can establish the contrary, he must be convicted of traffickingHeld:- Oakes Test:

(1) breach “prescribed by law”? (2) Does the offending law pursue a pressing and substantial objective? (3) Is the law proportional?

o Rationally connected to the objective?o Minimally impair the rights in question?o Benefits outweigh deleterious effects?

- In this case, law was not rationally connected to its objective, and was struck down as unconstitutional

R v. GrantEstablished the test for Exclusion of Evidence obtained in breach of Charter under 24(2)Police officers confronted Grant on the street after becoming suspicious of his behavior “fidgeting with his clothes”. Police officers blocked the way forward on the street, and asked the accused if he had anything he shouldn’t have. Grant admitted to having a small bag of marijuana and a firearm. Grant was arrested and charged with 5 firearm offencesHeld:- Unconstitutionally obtained evidence- Grant Test for Exclusion under 24(2)

(1) Seriousness of the Charter-infringing conducto good faith will reduce need for court to disassociate itself from police

conduct (2) The impact of the breach on the Charter rights of the accused

o Severity of the impositiono Interests engaged by the infringed right

(3) Society’s interest in the adjudication of the case on its merits

Jury SelectionSTEPS

1) Create Jury Panel (626 and Jury Act)a. 626 anyone “qualified to be a juror” can be a jurorb. Jury Act Part 1 outlines who can be a juror

i. S.3 disqualifies people:1. Who are not Canadian citizens2. Who are employees of the Canadian legal society3. With certain convictions4. With certain religious exemptions5. Who are over 656. Who face serious hardship

2) Challenges to the Array (uncommon – 629&630)3) Empanelling Jurors 4) Excusing or Standing a Juror Aside (632, 633)5) Challenging for Cause (638 – 640)6) Peremptorily Challenge (635)7) If not challenged or stood aside, juror is sworn in until there are 12

a. or 13/14 if ordered by a judge under 631(2.2)

Bill C-2 additional jurors Builds on the process of Alternate Jurors, which allows for alternates to be selected and show up to the first day of a trial, to account for any attrition since empanelling- Provisions for the selection of 13 or 14 jurors- However, when the time to deliberate comes, 12 of those jurors will be selected to deliberate

Built to deal with jury attrition on Mega-Trials, this will likely be less prevalent on shorter trials, because asking someone to stay for a long trial and then kicking them off before deliberation may cause bad feelings toward the administration of justice

The ArrayEligibility:- 626 any qualified person according to provincial laws can be a juror (specifically cant

discriminate on the basis of sex) Jury Act, Part 1 (2) every person has a right and duty to serve as a juror UNLESS:

o (3) specific exemptions (not Canadian, not BC resident, lawyer, court official)

o (4) unable to understand/read/speak the language of the courto (6) person can apply for exemption on religious or hardship groundso (7) person over 65 will be exempt upon request

(8) sheriff can determine procedures for selecting jurors (with regard to the basic principle that everyone has a right/duty to serve as juror)

o Sherrifs have some ability to excuse people, but this discretion is likely left to the presiding judge

Summons:- Jury Act, s. 10 Sheriff’s responsible for empanelling a sufficient number of jurors.- Jury Act, s. 11 Sheriff to send summons requiring persons to attend.

Attendance not optional

The people responding to the summons form the “jury panel”

Challenging:- 629 Challenging the jury panel (array) alleges that there is a problem with the way

the panel was compiled. Challenge must be in writing and must allege partiality, fraud or willful misconduct

- 630 The judge determines whether a challenge to the juror array is founded. If founded, judge directs a new empanelment.

EmpanellingOnce an individual is called forward, several things may happen:- the juror is excused, s. 632;- the juror is stood aside, 633;- the juror is challenged for cause, s. 638 - 640;- the juror is peremptorily challenged, s. 635 - 635;- the juror is sworn in, s. 631; or - selected as an alternate juror , s. 631(2.1).

631 : Empanelling the Jury - (1 – 5) describes the process for calling jurors forward & swearing each juror in- (2.2) NEW!! if the judge considers it advisable in the interests of justice, he or she may order

that 13 or 14 jurors, instead of 12, be sworn in- (6) ban on publication of identity of jurors and NEW!! limiting access to identifying

information

632: Excusing Juror - Before the trial begins, Judge may excuse juror from service because of personal interest in

the matter, relationship with judge, counsel, accused, or witness, or personal hardship or other reasonable cause.

6 33: Standing Jurors Aside - 633: can stand a Juror aside for reasonable cause such as personal hardship – a “Stand

Aside”. Only stood aside, not excused. 641: if you run out of panelists, can swear the “Stand Asides”. But if more

panelists” become available, use those before the “Stand Asides”

Challenges for CauseThe Initial presumption is that duly sworn jurors can be relied upon to do their duty- Challenges for cause will be allowed only when the challenger established a reasonable

potential for partiality- Accused is entitled to an indifferent jury, NOT a favourable one:

Challenge for cause is not for the purpose of finding out what kind of juror the person is likely to be -- his personality, beliefs, prejudices, likes or dislikes.

The challenge must never be used by counsel as a means of indoctrinating the jury panel to the proposed defence or otherwise attempting to influence the result of the eventual trial.

638 Each party has an unlimited number of challenges for cause

Notice:- Supreme Court Rule 2(7): A notice of application for leave to challenge potential jurors for

cause on the ground of prejudice shall be filed and delivered to any opposing party at least 30 days before the date set for jury selection.

Grounds:- All grounds are enumerated in 638(1)

(a) juror name not on the panel (tried by the judge, the only ground dealt with this way)

(b) juror is not indifferent between Crown and the accused o Publicity, or prejudice

(c) juror was convicted of an offence with a term of imprisonment exceeding 12 months

(d) Juror is an alien, (e) juror is physically unable, even with help (f) Juror doesn’t speak the language

Procedure:- 1) Where the Objection is that the Juror name is not on the panel list

640(1) tried by a judge in voir dire- 2) Where the Objection is on Any Other Grounds

Step 1 Exclusiono 640(2.1): Application for Exclusion On application of ACCUSED, Court

may order exclusion of sworn & unsworn jurors from the court room until the challenge is tried, where court believes it is necessary to preserve the impartiality of the jurors

Step 2 Identify the Triers for the Challengeo A) If NO EXCLUSION ROTATING TRIERS

Last two sworn jurors will be the triers of the Challenge. If there are no jurors sworn yet, two persons present will be appointed by the court to try the issue. Once two jurors are sworn in, those two jurors will replace the two court appointed persons and try the challenge.

Risk the jurors rotating through the panel deciding the challenge may hear information that will influence their opinion of the accused, the very thing the exclusion is meant to prevent

o B) If court orders EXCLUSION STATIC TRIERS Two unsworn jurors or two persons present are appointed by the

Court to try the challenge. These two persons try the challenge until all jurors and any alternates are selected

Step 3 Triers are Sworn In Step 4 Potential Juror is Asked the Question Step 5 The triers determine whether the ground for the challenge is true. Step 6 if the two triers can’t come to a decision. Court may discharge those two

people and direct two others to try the challenge. Step 7 Next juror challenged for cause

in R. v. Swite, the BCCA Overturned a first degree murder conviction because the trial judge used static triers of the truth of the challenge, instead of rotating triers, where the accused had not made a request pursuant to section 640(2.1) – obviously it’s pretty important!

Peremptory ChallengingNo reason necessary – person challenged is simply excluded- Cannot use the discretion of challenges to get most favorable jury – only to get an impartial

jury Pizzacalla / Biddle- Potential for abuse is there – difficult to police

Defence starts, then Crown – alternates back and forth with each juror

634 number of peremptory challenges - (2) Both accused and prosecution have the same number of challenges – dictated by

severity of the alleged offence (20 = 1st murder; 12 = max. sentence > 5 years; 4 = otherwise)

- (2.01) if judge orders 13 or 14 jurors to be selected, “the total number of peremptory challenges that the prosecutor and the accused are each entitled to is increased by one in the case of 13 jurors or two in the case of 14 jurors”

- (4) If co-accused, Crown gets total of all defence challenges. For example, if 3 co-accused charged with 1st degree murder, each accused gets 20

peremptory challenges; Crown gets 60 peremptory challenges.

Swearing in Jurors S. 643: 12 jurors sworn Names kept separate from other names in jury panel until verdict, and then

returned to the box (so they can be a juror again) Jury can’t drop below 10 ppl → if this happens, mistrial. This is why the new

rules allowing for extra jurors are so important.

Alternate Jurors 631(2.1): Court can order that alternate jurors be selected (alternate

jurors only available until the trial starts, then excused. 634(2.1) If Judge orders selection of alternate jurors, total number of

peremptory challenges increased by one for accused and for Crown. 642.1: Alternates to attend at start of trial and shall be substituted if not a full

jury. If not substituted into jury, excused. In Canada, alternates are excused at start of the trial if not required. Not like

US where alternates continue to hang around & listen to the evidence.

Run out of People in Array/Panel S. 641: using the “stand asides” S. 642: “Talesmen”

o If run out of ppl due to too many challenges, upon request of Crown the judge can send sherriffs out to get more panelists off the street (whether qualified or not). Called “Talesmen”

o These go through same process of empanelling.

Jury Trial Procedure471 states that every indictable offence to be tried by judge and jury except where otherwise provided. So many exceptions, it is easy to forget that this is the default position

WAYS TO GET TO A JURY TRIAL:1) Accused elects judge and jury (536)2) Accused of a 469 offence (and Crown does not consent to judge alone)3) Accused deemed to have selected J&J under 565:

a. (1)(a) PCJ converted trial into prelimb. (1)(b) Co-Accused elected differentlyc. (1)(c) Accused did not elect when called upon to do sod. (2) Crown proceeded by direct indictment

4) Crown overruled defence election and forced a jury trial, pursuant to 568

THEN: Arraignment- Accused called to the bar by name, read charges on the information, and asked for plea

In Provincial Court, the arraignment generally happens at the first appearance In Superior Court (with jury), the arraignment usually happens at the jury selection

THEN: Jury Selection- Right of challenge is put to the accused

“If, therefore, you would challenge them or any of them you must challenge them as they come to the book to be sworn, and before they are sworn, you shall be heard.”

- Jury is selected- Jury is put in charge of the accused

Events At Trial* Not a REQUIRED part of trial

(1) Counsel introduce themselves(2) Interpreter sworn if accused does not speak English(3) Judge’s Opening Remarks

May instruct a jury about the process and fundamental principles of evidence Usually includes presumption of innocence and PBRD

(4) Crown’s Case Crown Opening Summary of the anticipated evidence not an argument, but a “roadmap” Crown Evidence (direct, cross, re-exam)

o 540&541: Evidence is taken in the same manner as prelim under oath cross-examination by other party is allowed records are kept

o Generally, for each Witness: (1) Crown opens with direct examination, careful not to lead

inadmissible evidence (2) Defence conducts cross-examination (3) Crown conducts limited re-examination (new matters or matters

raised in cross that require an explanation)o Arguments about admissibility are conducted in voir dire

Crown closes case Crown Application to Re-Open (can happen anytime after Crown closes)

o At any stage in the trial, TJ has discretion to allow Crown to re-open its case Governing principle is whether the accused will suffer prejudice in his defence by allowing Crown to re-open

(5) *Motion for directed Verdict Application heard after the Crown has closed its case, in the absence of a jury Test “whether or not there is evidence upon which a reasonable jury, properly

instructed could convict” (6) *Corbett Application

Accused may make a “Corbett Application”, an application to prevent cross-examination of him on all or part of his criminal record (under CEA s.12)

Judge must weight probative value vs. prejudicial effect, considering:o 1) nature of the previous convictiono 2) similarity of the previous conviction to the offence chargedo 3) remoteness or nearness in timeo 4) Defence attack upon the credibility of the Crown witnesseso 5) The effect of excluding portions of the record (erroneous impression of a

crime-free gap when the accused was in jail?) Note: a judge may

o Not excludeo Completely excludeo Partially excludeo Use a “summary statement” as opposed to specifics of conviction

- (7) Election Put to Accused 651: defence counsel shall declare at end of Crown’s case whether calling evidence

- *(8) IF Defence Calling Evidence: Defence opening

o 651(1): defence may open the case for the defenceo generally only allowed if calling evidence

Defence evidence o 651(2): defence is entitled to examine such witnesses as it thinks fito Same procedure as Crown evidence

Direct exam conducted by defence counsel. Cross examination by Crown. Re-exam by defence in limited circumstances.

541: When an accused is not represented by counsel judge to explain to accused that he can call evidence, but not required to and should not do so as a result of any threat or inducements

Usually, an accused will appear first, but a judge cannot order the sequence of witnesses Smuck

- *Crown rebuttal & Defence Surrebuttal evidence Rebuttal: Crown may apply to call rebuttal evidence where the evidence:

o Is relevant to a fact in issue, and o became relevant during the defence caseo However, Crown is not allowed to “split its case” – must put all of the

relevant evidence up front So – circumstances in which a Crown will have evidence sitting around to rebut a

defence argument will be rare Crown is not expected to rebut a defence that the accused might possibly raise

- Surrebuttal: May allow an accused to surrebut a Crown rebuttal, but this is very rare

- *Pre-Charge conference (in absence of jury) 650.1: Judge can consult with counsel re: his charge

o Is held in the absence of the juryo Topics discussed may include:

Any modifications counsel wish to be made to standard instructions Any special evidentiary instructions to be given such as “limiting

instructions” Defences to be put to the jury Significant pieces of evidence to be brought to the jury’s attention Whether a verdict sheet will be used Instructions on weight to be given to evidence or whether there is

evidence before the jury that the jury should be instructed is to be given no weight

(9) Closings:- 646: the addresses of the prosecutor and the defence by way of summing up shall be taken in

same manner as at prelim (s. 540)

This is a closing argument in which the counsel will summarize the facts and argue why they support conviction or acquittal

Don’t go into depth explaining the law – that is the job of the judge in her charge- 651: “Summing Up” or “Closing Address” “Closing”

(3) If defence doesn’t call evidence, defence addresses the jury last. If defence does call evidence, Crown addresses the jury last.

(4) Crown addresses jury last if more than one accused, if at least one accused called evidence

- If defence did NOT call evidence Crown closing Defence closing

- If defence DID call evidence: Defence closing Crown Closing

(10) Judge’s charge to the jury- Includes:

Summation of material evidence Summary of the Pertinent law Summary of Crown and defence theories and the related evidence Distinction between trier of fact and trier of law All defences that have an “air of reality”

- Mandatory Elements: Burden on Crown BRD Reasonable doubt applies to every defence Reasonable doubt does not apply to every bit of evidence Verdict must be unanimous

- Note: most judges will tell jury to go to jury room then to wait, and ask counsel if there are any objections to the charge

(11) If jury greater than 12 members, reduce to 12 NEW – s.652.1 if there were 13 or 14 jurors Note: there is a danger that this will cause bad feelings on the part of jurors who have

sat through an entire trial – there are some worries that this process will harm the administration of justice

(12) Jury Deliberations- Foreperson responsible for communicating on behalf of jury- Jury Room usually has all exhibits and technology required to play them- Court will never play a direct examination without the corresponding cross-examination

A jury should not have one side of the issue alone- 647 : Sequestering of Jury:

(1) before jury begins to deliberate, judge can allow jurors to separate (and almost always does allow – never seen jury be sequestered prior to commencement of deliberations)

(2) If not, kept in charge of jury officer who prevents communication between jurors and anyone other than him, other jurors

(4) if violation of sequestering order or 648 (publication ban), will lead to discharge of jury if miscarriage of justice might result

(13) *Jury Questions & Read/Play backs Questions Should be read in open court and counsel given a chance for

submissions in responseo This is an area that needs careful consideration errors in jury instructions

and responses to jury questions are often a matter for appeal Exhortations encouraging the jury to “reason together” (factors such as time, cost,

inconvenience are irrelevant)o Not viewed as favorably as it once was – if the jury cannot come to a

unanimous decision then so be it(14) Verdict / Hung Jury / Reasons for Judgment

Verdict must be unanimouso 1) Guilty or not guilty of the offence chargedo 2) Guilty of an attempt of the offence charged, s.660, 661o 3) Guilty or not guilty of other offences if included within the offence

charged, s. 662;o 4) Not criminally responsible by reason of mental disorder (NCRMD) o clerk asks for the verdict on the offence charged, and if not, goes down the

list of lesser included offences Hung Jury 653 jury is discharged, mistrial

- (15) *Jury polled If there is some doubt as to the unanimity of the jury, you can poll the jury (Head)

- (16) * Second Degree Murder Verdict Recommendation 745.2 where jury convicts an accused of 2nd degree murder, judge must ask the

jury if the jury wants to make recommendation for the 10 year ineligibility for parole to be increased up to 25 years

o Judge will explain what the parameters between 10 and 25 year parole are counsel will not make any further submissions

- (17) Jury excused- (18) Sentencing

Taking a View652 Taking a View of a Place, Thing, or Person- going out with the jury to look at a specific thing related to the case- The jurisprudence is fairly clear that this is not evidence, so there are often not challenges to

such applications

Issues with JurorsIf a juror has not been sworn in yet, that juror will simply be excused

644: Discharge of JurorRemedy once a juror has been sworn in

(1) Judge may discharge a juror for illness or other reasonable causea. Should only be for serious issues, not trivial complaintsb. judge must hold a hearing when an issue of partiality has arisen at any point in

the trialc. judge has discretion to poll remaining jurors to determine if contaminated

(2) Trial continues as long as there are 10 or more jurors

Avoiding Having Less Than 10 Jurors(1) Bill C-2 now allows for 13 or 14 jurors(2) Alternate jurors can be used to avoid pre-trial attrition(3) Replacing a Juror before any evidence:

a. 644(1.1): if jury has not yet begun to hear evidence, judge can replace discharged

juror with a panelist or talesmanb. 634(2.2): If juror replaced pursuant to s. 644(1.1): defence and Crown each get 1

additional peremptory challenge for each additional juror

Mistrial ApplicationsA MISSTRIAL CAN OCCUR WHERE:- 653 There is a Hung Jury- Where there has been a “fatal wounding to the trial process” which cannot be cured by

remedial measures (R. v. Patterson)- If the particular matter could have affected the jury to the point that “the entire trial was

compromised” and no remedy other than a “new trial” was available (Pires)

Getting a Witness Before the Court697: Application for procuring attendance (where the witness is not in custody)

698: Subpoena for appearance- (1) Where a person is likely to give material evidence, a subpoena may be issued for their

attendance

550: Power to Require Recognizance of a Witness- (1) judge can order any material witness to enter into a recognizance to give evidence at

the trial, and comply with such reasonable conditions as are prescribed by the recognizance - (3) justice can require a witness entering into recognizance

to produce one or more sureties to deposit a sum of money sufficient to ensure that the witness will show up

- (4) where a witness does not comply, a judge can commit him to prison

What if they don’t show up?- 698

(2) Where it appears that the witness likely to give material evidence o (a) will not attend in response to a subpoenao (b) is already evading a subpoena

a court may issue a warrant for that person to be arrested and brought before the court

(3) A warrant shall not be issued unless a subpoena has first been issued- 708: A person who fails to show up can be held in contempt of court

527: Power to procure the attendance of a prisoner- (1) Superior (or provincial under [2]) court judge may order in writing that a person confined

to prison be brought before the court, if: (a) the applicant for the order sets out the facts of the case and produces a warrant (b) the judge is satisfied that the ends of justice require that an order be made

- (4) Where the person in custody will serve as a witness, the judge shall direct the manner in which the prisoner shall be kept in custody and returned to prison

VIDEO STATEMENT (child or disabled)Witness under 18, s. 715.1, or with disability, s. 715.2 , court may admit:- recording- must be adopted by the witness at trial

- not contemporaneous cross exam, but can be cross examined at trial

COMMISSIONING EVIDENCE:709 a party to an indictment proceeding may make an application for a commissioner to

take the evidence of a witness who is unable to attend:- (a) By reason of

(i) illness (ii) any other good and sufficient cause

- (b) Because they are out of Canada

Examination of WitnessesExamination in chief:Questioning by the party calling the witness – mostly getting the witness to say to the court what they have already said to you and to police- Should avoid leading questions on contentious matters- BUT Leading questions are not only permitted but desirable:

on non-contentious issues (to save time) in areas of complex (usually expert) evidence or witness who has difficulty

communicating (child, fearful, etc.) – only goes to weight when establishing an expert witness’ credentials

Cross examination:Questioning by the opposing party – leading questions are not only permitted, they are encouraged- Cross-Examination is not mandatory, so you should have a purpose for cross-examining:

If there is nothing in the testimony of a witness that is inconsistent with or harmful to your narrative, don’t cross

If there is, decide on tactics:o Biased againsto Honest but mistaken, or forgetfulo Exaggerates – may be bias, may be self-aggrandizing, may be pathological

- Control Leading questions Know your facts Build from broader to narrower Work on developing discrete units Should consist primarily of leading questions – it is all about control Don’t cross when your case has not been damaged

o if you don’t know with absolute certainty that you can improve your position, you are much more likely to make it worse

- Exploring the Unknown: Forbidden Territory or Just a Scary Place? Approach with caution If you sense danger and it is not crucial to your case, abandon the line of questioning Have a plan for the foreseeable answer(s) that are not what you want –usually it will

be a plan to impeach the undesired answer, preferably by means of an earlier answer from the same witness, or by reference to the implausibility of the answer in light of the earlier questioning

Re-examination:- May be used to clarify, amplify or explain - Must relate to something raised for the first

time in cross, or to correct an unfair or distorted record Danger: a witness can easily “protest too much” – the more qualifications or

backtracking (real or perceived), the less the value of the evidence. Example: Suggestion that witness was somewhere else or doing something else that

elicits just a “no” – might re-examine as to how the witness can be certain of that denial (diary, or time-card, or if police officer, entry in notes)

- Should be rare, should be very narrow in focus- Crown cannot split its case

Unwilling and Unable WitnessesUNWILLING:- 708: Contempt- 545: Where a person refuses to give evidence

(a) refuses to be sworn (b) refuses to answer questions (c) fails to produce the required writings (d) refuses to sign deposition

That person can be put in jail for 8 days

Witness Accommodations- Accommodation of vulnerable witnesses - Helping the witness give a “full and candid account”- For each application, factors to be considered listed in s. 486.1(3):

age of the witness, whether witnesss has a mental or physical disability, the nature of the offence, the nature of any relationship between the witness and the accused, and any other circumstance that the judge or justice considers relevant.

Support Person, s. 486.1- Support person:

Court shall order if witness under 18 court shall, Court shall order upon application if witness has disability Court may order in any other case where necessary for a full and candid account

Outside Courtroom or with a Screen (or other device), s. 486.2- Witness may testify remotely (CCTV) or with a screen or other device that prevents witness

from seeing the accused in specified circumstances.- In B.C., the Crown decides what the appropriate accommodation is for person under 18 - S.B.T,

2008 BCSC 711

Accused may not Cross-Examine, s. 486.3- Accused not to personally cross examine the witness:

under 18 unless proper administration of justice requires accused to personally cross examine, s. 486.3(1)

any other person, if necessary to obtain “a full and candid account”, 486.3(2) when criminal harassment charge unless proper administration of justice requires accused

to personally cross examine, s. 486.3(3)

Making Intelligible Evidence of Witness with Physical or Mental Disability- If physical or mental disability makes communicating evidence difficult, Court may authorize

the use of “any means that enables the evidence to be intelligible” – s. 6 C.E.A.

Absconding AccusedIf a Co-Accused absconds – the Crown may continue to apply proceedings to the remaining accused (must be evidence of real absconding, not just failure to appear)

At prelim – s. 544- Loses jury trial, if that was election- Creates adverse inference that may assist Crown in obtaining order to stand trial- Loses right to be present while evidence presented

At trial – ss. 475, 598- Loses jury trial, if that was election unless presents a legitimate excuse or Crown requires J&J

pursuant to s. 568 (Crown overrule provision)- Trial may continue- Warrant and wait- But if warrant and wait, trial may be re-commenced if it appears it is “no longer in the interests

of justice” to wait- Creates an adverse inference that may lead to conviction

Warrants may (will) issue - warrant for failing to appear in accordance with (or breaching) release document: s. 512 or

524, 525, 679(6)- absconding before prelim concluded: s. 544- or after committal- non-appearance at summary trial: s. 803- Warrant from S.C. – s. 597- S. 485: irregularities don’t generally result in loss of jurisdiction of person and can issue new

process for period of time

SentencingAlways Look to the Code First:- Maximum Sentences are always enumerated

Summary: 6mo/$5000 fine, unless otherwise specified Indictment: usually 2, 5, 10, 14, Life

- Minimum sentences are sometimes enumerated Where specified, the court may not go below it

If the minimum is unconstitutional, a court should not grant a constitutional exemption and allow the law to stand, but rather should strike down the law (Ferguson)

The Guilty PleaGoverned by 606- (1) accused may plead guilty or not guilty- (1.1) Court may accept a guilty plea ONLY if it is satisfied that:

(a) the plea is made voluntarily (b) the accused understands that

o (i) the plea is an admission of the central elements of the offenceo (ii) the nature and consequences of the pleao (iii) the court is not bound by any agreement made between the

accused and the prosecutor- (1.2) HOWEVER, the failure of the court to fully inquire whether the conditions

above have been met do not invalidate a plea- (3) Where an accused does not answer, the court shall direct the clerk to enter a

plea of not guilty- (4) Accused may plead guilty to a charge not included in the information with the

consent of the prosecution

Entering and Accepting a Guilty Plea:- Timing

May be entered at any point in proceedings If unrepresented, judge will inquire about whether legal service has been

obtained, advise accused of duty counsel, and recommend consultation- Content

Always an admission of sufficient facts to establish an offence Crown will often assume that plea is entered on basis of facts set out in the

police report (unless defence raises other issues) Counsel should sort out disputes over facts prior to hearing and present an

agreed statement of facts to the Court

Withdrawal of the Guilty Plea:- Must be a basis in evidence demonstrating that the plea:

Was not voluntary Didn’t understand the nature of the offence Didn’t understand the consequences of the plea Didn’t intend to plead guilty (usually where counsel enters plea and court fails

to confirm properly with accused) For some other reason amounted to a denial of the accused’s rights

Messes can occur where Crown and defense never formally agree on one set of facts and get it in writing

Purposes and Principles of Sentencing

718 Purposes The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives,

to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives:

(a) Denunciation: to denounce unlawful conduct (b) Deterrence (General and Specific): to deter the offender and other persons from

committing offences (c) Protection of the Public: to separate offenders from society, where necessary (d) Rehabilitation: to assist in rehabilitating offenders (e) Reparations: to provide reparations for harm done to victims or to the

community (f) Promote Responsibility: to promote a sense of responsibility in offenders, and

acknowledgment of the harm done to victims and to the community

Fundamental Principles- PROPORTIONALITY, s. 718.1 A sentence must be proportionate to the gravity of the

offence and the degree of responsibility of the offender- PARITY, s. 718.2(b) a sentence should be similar to sentences imposed on similar

offenders for similar offences committed in similar circumstances (must be understandable when compared together)

- TOTALITY, s. 718.2(c) where consecutive sentences are imposed, the combined sentence should not be unduly long or harsh

- RESTRAINT/LAST RESORT: 718.2(d) an offender should not be deprived of liberty, if less restrictive sanctions

may be appropriate in the circumstances 718.2(e) All available sanctions other than imprisonment that are reasonable in the

circumstances should be considered for all offenders, with particular attention to the circumstances of aboriginal offenders

- AGGRAVATING & MITIGATING FACTS, s. 718.2(a) sentence should be increased or decreased in considering the presence of aggravating or mitigating circumstances of the offender or the offence. See chart.

Aboriginal OffendersR v. Gladue- (1) Section 718.2(e) is remedial in nature, not simply a re-affirmation of existing sentencing

principles. purpose of s. 718.2(e) is to respond to the problem over-incarceration, in particular to

the more acute problem of the disproportionate incarceration of aboriginal peoples. - (2) applies to all offenders and requires that imprisonment be used as a penal sanction of

last resort A role of s.718.2(e) is to encourage the sentencing judge to apply principles of

restorative justice (such as sentencing circles) alongside or in place of other more traditional sentencing principles when determining what sentence to impose.

- (3) Section requires sentencing judges to pay particular attention to the circumstances of aboriginal offenders because of their uniqueness and difference from non-aboriginal offenders.

S. 718.2(e) applies to all aboriginal offenders wherever they reside (on reserve, off-reserve, urban or rural).

S. 718.2(e) is not just a “sentence discount” for aboriginal persons, though sometimes, based on the foregoing a reduced sentence may be appropriate

- (4) The more serious and violent the offence, the more likely the jail sentence will be the

same for an aboriginal offender and non-aboriginal offender

STEP PRINCIPLE- Sentences should go up in moderate steps as an unduly large increase could have the effect

of discouraging any effort the offender may be making to rehabilitate himself (R v. Robitaille)

First Penitentiary Sentence for Youthful Offenders- A first penitentiary sentence for a youthful offender should rarely be determined solely by

the objectives of denunciation & general deterrence. (R v. Borde) Where the youthful offender has not previously served a long sentence or been to the

penitentiary, the Court should impose the shortest possible sentence which will achieve the relevant objectives

Denunciation and Deterrence are Primary When:- 718.01: Offence involves abuse of a person under 18 years- 718.02: Offence against police officer or other justice system participant (see listed offences)

Aggravating Factors718.2(a): A court that imposes a sentence shall increase or reduce sentence to account for any relevant aggravating or mitigating circumstances relating to the offence or the offenderAggravating Factors in the Code:- Motivated by hate or bias, s. 718.2(a)(i);- Domestic violence (abused spouse or common-law), s. 718.2(a)(ii);- Child abuse (abused person under 18 years), s. 718.2(a)(ii.1)- Abuse of trust or authority , s. 718.2(a)(iii);- Gang benefit, s. 718.2(a)(iv);- Terrorism , s. 718.2(a)(v)- Excessive Alcohol : s.255.1

over 160 mg % deemed aggravating feature for sentencing- Home invasion: s.348.1

dwelling house occupied at time and accused knew or was reckless, and used violence or threats of violence

Other Aggravating Factors:- Victim conduct, character, lifestyle & vulnerability- Breaches of trust- Brutality or cruelty- Intentionally and Particularly humiliating acts- Premeditation, sophisticated & planned offence- Similar criminal record- Deliberate risk taking- Length of the crime continued- Number of victims- Number of incidents- Number of incidents- Consequences for victim- Substantial economic loss- Attempts to conceal the offence- Impeding victim’s access to justice

- Group violence- Alcohol & drugs- Prevalence in the community

Factors which CAN NOT be aggravating:- Lack of guilty plea- Manner defence conducted (accused lied in his testimony, or manner of cross-examination of

complainant) though may be reflective of lack of remorse- Failure to co-operate with authorities

General Circumstances of the Offender to be Considered:- Age- Background & character- Criminal history- In breach of court order – on bail or probation at time- Motivation- Attitude: can be mitigating or aggravating- Mental illness: Sometimes mitigating -- less culpable; sometimes aggravating -- increased

dangerousness.

Mitigating FactorsGeneral Mitigating Factors- Remorse / Apology- Efforts at reparation/apology are viewed favourably (even small ones)- Guilty plea

guilty plea, especially early one, will be a mitigating factor. However, remember that you can not penalize a person for insisting on right to trial

- Test case scenario fact that matter has been “hanging over” accused so that test case can be conducted

- Willingness to make reparations/compensation- Assisting police or prosecution on other investigations- Age

crime-free life by person of good character is highly mitigating advanced age or youthfulness

- Criminal History None, previously of good character (first-time offender) Gap in criminal record No prior jail sentences, no prior adult sentences

- General Good character aberration in usual behaviour

- Disadvantaged background- Impairment (sometimes):

If impairment played role in an out-of-character offence, AND impairment is out-of-character.

- Provocation & Duress - Has undertaken treatment for addiction or condition that led to the commission of the offence- Health problems - Supporting spouse or children- Behaviour on bail

- Use of excessive force by the police in effecting arrest (Nasogalauk)

718.2(e) May Mitigate a Sentence ( Gladue )- Restraint: imprisonment is a last resort for all offenders, “with particular attention to the

circumstances of aboriginal offenders”- Section 718.2(e) is remedial in nature, not simply a re-affirmation of existing sentencing

principles. - A role of s.718.2(e) is to encourage the sentencing judge to apply principles of restorative

justice (such as sentencing circles) alongside or in place of other more traditional sentencing principles when determining what sentence to impose.

Factors to RememberDead Time and the Truth In Sentencing Act- 719(3) court may take into account any time spent in custody by the person as a result of

the offence If on cusp of provincial & federal time, may suggest to client adjourning sentencing if

provincial time is more favourable Used to Be: that offenders got 2 days credit for every 1 spent in custody

- Truth In Sentencing Act (After Feb 22, 2010) New general rule court may take into account dead time but shall limit any credit

for that time to a maximum of one day for each day spent in custody, s. 719(3) Exception: allowing a maximum of one and one-half days for each day spent in

custody “if the circumstances justify it”, s. 719 (3.1).- Court must give reasons for any credit granted, s. 719 (3.2)- Court must specify: the offence, the amount of time spent in custody, the term of

imprisonment that would have been imposed before any credit was granted, the amount of time credited, if any, and the sentence imposed, s. 719 (3.3)

Attempts and Accessories After the Fact463:- if full offence had max life sentence, attempt of AATF if not exceeding 14 years;- if full is 14 years or less, maximum for attempt of AATF is ½ the max for full- if full is summary offence, so is the attempt or AAFT- if full is hybrid, attempt of AAFT is max ½ the max for full if proceeds by indictment, or

summary

Consecutive and Concurrent SentencesGenerally: Sentences are concurrent unless Court specifically states consecutive

Consecutive: (Allowable under s. 718.3(4))- May be imposed if:

If there was no temporal or factual connection between offences (not a “spree”) Principles of Denunciation and Deterrence requires separate and additional

punishment- In some circumstances mandatory that sentences be consecutive

s. 85(4), using firearm or imitation in commission of offence - Can not impose a sentence consecutive to a life sentence

Remember Totality Principle: combined sentence should not be unduly long or harsh 718.2(c)

Notice to Seek Greater Punishment717(1)Greater punishment required If: penalty section refers to receiving a higher penalty if previously convicted of same offence

Will not be imposed unless: Crown shows that defence has been notified, prior to the PLEA, of intention to seek greater punishment- notification usually served by police

Dangerous and Long Term Offenders- Form of preventative detention sentence- Cases are still before the Court dealing with the old regime (before the 2008 changes to the

legislation). The first cases under the new legislation are just making their way before the Courts.

Dangerous offender proceeding, designation & sentence? - Dangerous offender proceedings are a special form of sentence proceeding- A dangerous offender designation is the designation applied to a person who meets the criteria

in s. 753 (they are “designated” to be a “dangerous offender”)- A “dangerous offender sentence” is old terminology referring to an indeterminate sentence

(never ending sentence) as opposed to a finite sentence (sentence with an end). Under the current legislation, the designation of an offender as a “dangerous offender” is distinct from the imposition of a sentence.

- Dangerous offender designation is reserved for those individuals whose criminal behaviour is so serious, or so persistent, that the only way in which to control the risk they present is through indeterminate incarceration.

- Persons who must be isolated from society to protect society (no room to believe that they can be controlled in the community)

- The overriding aim is not the punishment of the offender but the prevention of future violence through the imposition of an indeterminate sentence.

When is the Application made?- After conviction - prior to sentence being imposed

What are the Statutory Pre-requisites to an Application?- 1. offender convicted of a predicate or index offence - 2. an assessment has been conducted, 752.1- 3. consent of Deputy AG, s. 754(1)(a)

- 4. notice to defence has been given, s. 754(1)(b)- 5. notice filed with court, s. 754(1)(c)

TEST: Dangerous offender - 1. Convicted of a “predicate” offence – for a dangerous offender, a predicate or index offence

is a Serious Personal Injury Offence (s. 752); AND- 2. Crown established beyond a reasonable doubt that offender is a EITHER:

(a) dangerous violent offender, s.753(1)(a); OR (b) a dangerous sexual offender, s.753(1)(b).

TEST: Long Term Offender - 1. Convicted of a “predicate” or “index” offence (described in Code). For a long term offender

a this is a broader category of offences that for a dangerous offender.

Resolution DiscussionsCan occur at any point up until the verdict is rendered (sentencing based on those resolution discussions occurs after the guilty plea is entered)

606 Pleas: - (1) accused may plead guilty or not guilty- (4) Accused may plead guilty to a charge not included in the information with the

consent of the prosecution

717 Alternative Sentencing Measures - (1) May be used if not inconsistent with the protection of society, and:

(a) measures are part of an AG designated program (b) person considering whether to use the measures is satisfied that they would be

appropriate, with regard to:o the accusedo the interests of societyo the victim

(c) the accused fully and freely consents (d) before consenting, accused has been advised of right to counsel (e) person alleged to have committed offense accepts responsibility for the act or

omission that forms the basis for the offense (f) there is sufficient evidence to proceed with the prosecution (g) prosecution of the offence is not barred by law

Negotiations may cover:- Global Charges

Joining several counts into one count (see joinder)- Plea to attempt- Plea to lesser included offence- Stay of proceedings- Diversion

individual who is charged with a criminal offence is diverted out of the Court system and asked to provide some sort of reparation to society for their alleged wrong

remains legally innocent

usually community service- Stay on Bail- Alternative Charges

606(4) court may accept a plea by the accused of a charge not included in the information

Sentencing RangeTo determine the appropriate sentence for a particular offender, the court must consider:

(1) The maximum and minimums for the offence (very broad ranges generally and of minimal assistance to the Court);

(2) Purpose and Principles of sentencing generally; (3) Circumstances of the offence and the offender, including the presence and

absence of aggravating & mitigating factors; and (4) Precedent: what penalties have similar offenders received in the past for similar

crimes (these case would have considered 1, 2 & 3)

Maximums:- 787 : Summary Offence Maximums

$5,000 fine and / or 6 months jail unless otherwise specified For offences where the maximum was otherwise specified, it WAS 18 months However, the NEW OMNIBUS bill is introducing 2 year less one day maximums for

some summary offences - Indictable Offence Maximums:

Maximums, sometimes minimum penalties, for each specific offence found in the Code

o Look to the “punishment” section – sometimes the same section as the one which states something is an offence

Maximums, are like “price points”: life, 14 years, 10 years, 5 years, 2 years

Minimums:New omnibus bill contains lots of new minimums, and increases to existing minimums- Categories of Minimums:

(1) All offenders on any conviction (2) Offenders who have prior conviction for same or related offence (s. 333.1 theft of

motor vehicle) (3) Sometimes both – s. 255 CC (impaired)

When mandatory minimum is specified, cannot go below that threshold. No constitutional exemption (if a minimum is unconstitutional, the law should simply be struck down Ferguson)

R v. FergusonManditory minimums in general are constitutional and do not constitute cruel and unusual punishment. Even if an individual mand. min. was unconstitutional, the remedy should be striking down the law, not granting an exemptionRCMP officer, convicted of manslaughter with firearm of suspect in cells. Mandatory 4 year minimum. TJ granted constitutional exemption and imposed CSO.Held:

- Mandatory Minimum must be imposed It is not cruel and unusual punishment Exemption is not the proper remedy

- The test for whether a particular sentence constitutes cruel and unusual punishment is whether the sentence is grossly disproportionate (Smith)

To be considered grossly disproportionate, the sentence must be more than merely excessive. The sentence must be "so excessive as to outrage standards of decency" and disproportionate to the extent that Canadians "would find the punishment abhorrent or intolerable"

- Even if the mandatory minimum was a violation of s. 12, a constitutional exemption is not an appropriate remedy for a s. 12 violation.

If the law imposing a minimum sentence is found to be unconstitutional on the facts of a particular case, the law should be declared inconsistent with the Charter and hence of no force or effect under s. 52.

Sentence OptionsAbsolute Discharge730- (1) Requirements

Accused is not an organization No minimum sentence Maximum sentence is not 14 years or life Best interests of the accused Not contrary to public interest

- (3) Discharge means the offender has been found guilty, but not convicted – hence, no criminal record

Remember: 810: court can put someone under a “peace bond”, which is one way for a court to impose some conditions with an absolute discharge

Conditional Discharge731(2): Offender is discharged on conditions set out in a probation order- Same requirements as absolute discharge, however probation order to address need for

measures to: ensure good behaviour assist in rehabilitation provide reparations

Discharge can be revoked if probation is breached

Suspended Sentence731(1)(a): Accused convicted, but passing of sentence is suspended for up to 3 years to monitor the accused’s behaviour in the community

Suspended sentence can be revoked if the probation is violated

Requirements/Considerations:(1) Have regard to age & character of the offender, nature of offence & circumstances of

commission of offence(2) No minimum punishment

732.1: Conditions of Probation- (2) mandatory conditions of probation

(a) keep the peace and be of good behavior (b) appear before the court when summoned (c) notify the court/probation officer of any change of address, name, employment,

occupation- (3) optional conditions of probation

(a) report to a probation officero within 2 working days or when the court directs, after making the probation

ordero afterwards, whenever and wherever required by the officer

(b) remain within the jurisdiction (c) abstain from

o (i) alcoholo (ii) drugs (except medication)

(d) abstain from owning, carrying, possessing a weapon (e) provide support/care to dependants (f) perform up to 240 hours of community service (g) IF OFFENDER AGREES participate in a treatment program (g.1) attend a treatment facility designated by the LG in counsel for the province (g.2) use alcohol interlock ignition device (h) comply with such reasonable conditions as the court considers desirable

- (3.1) optional conditions of probation of an organization (a) make restitution (b) establish policies, standards, procedures (c) communicate those policies, standards, procedures (d) report to the court the implementation of those policies, standards, procedures (e) identify the senior officer who is responsible for compliance with those policies,

standards, procedures (g) comply with any other reasonable conditions the court finds desirable

FinesFines alone can only be imposed if there is no minimum jail sentence

731(1)(b): Fine can be in addition to probation or jail sentence

734(2): court has to be satisfied that the offender is able to pay a fine, if a fine is imposed as part of sentencing

Conditional Sentence Order“Jail” sentence served in the community- different from probation – punitive aspect in addition to rehabilitation- Breach does not result in a new charge, but triggers a continuation of sentence

CSO can be imposed UNLESS THE OFFENCE:- (1) Serious Personal Injury Offence per 752(a):

An indictable offence; Involving the (attempted) use of violence, or conduct (likely) endangering safety or

life, or conduct likely to inflict severe psychological damage; and where the maximum sentence for the offence is 10 years or more

- (2) Serious Personal Injury Offence as per s. 752(b) Sexual offences: sexual assault simpliciter, with a weapon, causing bodily harm or

aggravated); was prosecuted by indictment; and has a maximum punishment of 10 years or more;

- (3) Terrorism offence prosecuted by indictment w/ a max punishment of 10 years or more- (4) Criminal Organization offence prosecuted by indictment that has a maximum

punishment of 10 years or more- (5) Offence has a minimum jail sentence- (6) Appropriate sentence for this offender (considering the facts) would be 2 years or greater- (7) Safety of the Public would be endangered by accused serving sentence in the community

risk of re-offending gravity of damage

- (8) CSO would be inconsistent with the fundamental principles of sentencing

Mandatory Conditions 742.3(1)- (a) keep the peace and be of good behavior- (b) appear before the court when required- (c) report to a supervisor

within two working days, or a longer period as the court dictates, after the order is given

thereafter as required by the supervisor- (d) Remain within the jurisdiction- (e) notify the supervisor of any change of address, name, employment, occupation

Optional Conditions 742.3(2)- D&A, Weapons, care for dependents, community service, treatment programs- CSO should generally include punitive conditions (house arrest, curfew) and rehabilitation

conditions Proulx

Jail743 If no punishment specifically provided – 5 year max

745 sets out parole ineligibility for the various life sentences

Provincial Jail- 743.1(3): If less than two years, serve in provincial prison- Probation can be combined with probation under s. 731(1)(b)

Federal Jail- s. 743.1(1): if sentenced to life, two years or more, or sentenced to multiples sentences

running consecutive where total greater than 2 years. - Probation Can combine a federal sentence with probation if the federal sentence is for

exactly 2 years under 731(1)(b)

Intermittent Sentences (732)

“weekends”- Sentence must be 90 days or less- New charges will result if offender fails to show- Can apply to convert to straight time- If sentenced to jail for subsequent offence, will serve remaining intermittent sentence on

consecutive days

Sentencing HearingAdjournment (720)- court to conduct sentencing as soon as practicable after guilty plea or finding of guilt- sentencing sometimes adjourned to allow:

for preparation of sentencing materials (risk assessments, letters of reference, vicim impact statements)

counsel time to consider their positions & obtain case law- adjournments however should be kept reasonable

Proceedings- Both Crown & defence must be given opportunity to:

(a) 723(1) make submissions on facts (b) 723(2) present evidence

Jury Trial- 745.2: Trial judge passes sentence

(though jury can recommend re: parole for 2nd degree murder)- 724(2): Judge must accept as proven all facts essential to jury’s verdict

Judge may also find any other relevant fact disclosed by evidence at the trial or hear further evidence 724(2)

After jury verdict Ferguson, SCC- The judge is Bound by express & implied factual implications of jury’s verdict;- If factual implications ambiguous, judge shouldn’t attempt to follow the logical process of the

jury, but should come to his/her own independent determination of the relevant facts Ex. jury convicts of lesser included offence of manslaughter after accused argued

self defence, drunkenness and provocation. By convicting, jury has rejected self-defence argument. However, lesser included means that jury found not intent, either because of provocation or drunkenness. Judge will make findings of fact from the evidence to determine what extent either factor played.

Judge Alone Trial (PCJ or SC)If trial by a judge, sentence based on facts as found by judge- Further facts may be considered by court. These facts may be put forward by counsel in

submissions, or evidence may be required if facts disputed (see below)

Guilty PleaIf guilty plea, generally, sentencing proceeds on submission of counsel. - Note: Guilty Plea is merely admission of elements of the offence, may need to prove

aggravating or mitigating factors

Disputed Facts- Facts put forward by Crown at guilty plea may be disputed by defence, or a fact not proven at

trial may be subject to dispute. Crown may also dispute a mitigating fact put forward by defence.

- Facts established at trial cannot be challenged at sentencing. But counsel may attempt to establish additional facts relating to the circumstances of the offence as long as consistent with the findings of fact at trial (Ewanchuk ABCA 2002)

- The party wishing to rely on the fact must prove it. Not good enough to just rely on submissions s. 724(3)

Aggravating fact Crown must prove beyond reasonable doubt Mitigating facts defence must prove on balance of probabilities

- Counsel should try to determine in advance what facts are contested so that witnesses and exhibits are present for sentencing hearing

Evidence- (1) Hearsay evidence is admissible s. 723(5)

However, if Court considers it necessary in the interests of justice, witness may be compelled to testify rather than receiving the evidence by way of hearsay s. 723(5)

Admissible so that judge has as much relevant evidence as possible to find a fit sentence (Levesque)

- (2) Court shall consider all relevant information put before it including submission of counsel s. 726.1

Court may also require the production of evidence it believes required to determine the appropriate sentence. However, not a licence to turn the sentencing hearing into a judicial inquiry.

Note: A defence must be careful when considering whether to dispute facts and causing the Crown to call evidence to prove the aggravating factors forcing Crown to call evidence and complainants may loose the offender the mitigating goodwill that he/she gained through the guilty plea

Pre-Sentence Reports (721)Prepared by a probation officer generally contain sentence recommendation or canvass sentencing options/programs available- May be requested by either Crown or defence- S. 721(3) describes content:

age maturity character behaviour attitude & willingness to make amends.

Psychological Assessments- No provision here or under s. 672.1 - 672.95 for compelling a psych assessment for

sentencing purpose- A court can use a prior psych assessment (subject to possible privilege)- Defence can arrange for private assessment (greater control)

Victim impact statements s. 722 & 722.2- Court shall consider any statement of a victim (that follows the procedural requirements of

722(2)) describing the harm done to, or loss suffered by, the victim arising from the commission of the offence, s. 722(1)

Can be presented in any manner the court considers appropriate 722(2.1)- Court may consider any evidence concerning the victim that does not comply with 722(2)- “Victim” Includes 722(4):

person to whom harm was done where the person described in paragraph (a) is dead, ill or otherwise incapable of

making a statement, includes the spouse or common-law partner or any relative of that person, anyone who has in law or fact the custody of that person or is responsible for the care or support of that person or any dependant of that person.

Victim Impact Statements should not contain criticisms of the offender, assertions as to the facts of the offence, or recommendations on the severity of punishment R v. Bremner

- Counsel should ensure VIS are within proper limits

Offender May Speak 726- Before determining sentence, Court must ask accused if he/she has anything to say.

Imposing Sentence726.1: Court shall consider any relevant information placed before it - When imposing sentence, the Court must state the terms of the sentence imposed and the

reasons for it, s. 726.2 Inadequate reasons open the sentence to variation on appeal because the judge

has not demonstrated the reasoning process used- Sentencing judges have considerable latitude in deciding what form of sentence to impose

s. 718.3(1) and (2) provides that, subject to the parameters set out by statute (minimums, maximums...) trial judge has discretion

Ancillary Sentencing OrdersProbation Orders731(1) Can be imposed with Suspended Sentences or with Jail time

731(1)(b) A probation order can only follow a term of imprisonment “not exceeding two years”

732.1: Conditions of Probation- (2) mandatory conditions of probation

(a) keep the peace and be of good behavior (b) appear before the court when summoned (c) notify the court/probation officer of any change of address, name, employment,

occupation- (3) optional conditions of probation

(a) report to a probation officero within 2 working days or when the court directs, after making the probation

order

o afterwards, whenever and wherever required by the officer (b) remain within the jurisdiction (c) abstain from

o (i) alcoholo (ii) drugs (except medication)

(d) abstain from owning, carrying, possessing a weapon (e) provide support/care to dependants (f) perform up to 240 hours of community service (g) IF OFFENDER AGREES participate in a treatment program (g.1) attend a treatment facility designated by the LG in counsel for the province (g.2) use alcohol interlock ignition device (h) comply with such reasonable conditions as the court considers desirable

- (3.1) optional conditions of probation of an organization (a) make restitution (b) establish policies, standards, procedures (c) communicate those policies, standards, procedures (d) report to the court the implementation of those policies, standards, procedures (e) identify the senior officer who is responsible for compliance with those policies,

standards, procedures (g) comply with any other reasonable conditions the court finds desirable

Firearms Prohibitions(109): Mandatory prohibitions for convictions of certain offences including:

indictable violent offence with maximum of 10 years or greater specified firearms offences criminal harassment serious drug offences; if already prohibited offence involved firearm, cross-bow

(110): Discretionary probation order for offences not covered in 109 where violence was used, threatened or attempted

(114) surrender of firearms upon prohibition(115) forfeiture upon prohibition

Driving Prohibitions259(1): mandatory for:

impaireds over .08 refusals

259(2): discretionary for:- other motor vehicle offences (crim neg, manslaughter, dangerous driving)

DNADNA Identification Act: purpose of the Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before the coming into force of this Act- Act establishes a database consisting of:

A crime scene index A convicted offenders index

Types of DNA Orders:- Depending upon conviction, three types of DNA orders s. 487.051:

Mandatory Primary, s. 487.051(1)o “Listed Primary Offences” under 487.04(a)

Presumptive Primary, s. 487.051(2)o Primary Offences under 487.01(a.1) – (d)

Discretionary Secondary, s. 487.051(3) which include:o (a) Listed secondary offenceso (b) Other Offences Prosecuted by Indictment: any offence (including hybrid)

that was prosecuted by indictment for which the maximum punishment is imprisonment for 5 years or more

How can you get DNA orders apart from sentencing?- 487.053 Recent Provision: enables a Court to impose a DNA order if it didn’t do so at the

time of imposing sentence- 487.055 Provision for getting the DNA of a person who was convicted before the DNA

provisions

SOIRAs. 490.011 – 490.032 - Must be read in conjunction with Sex Offender Information Registration Act- If convicted of a sex offence, the offender will be required to give DNA for record

ProhibitionsCan be up to lifetime prohibition for sexual offenders involving victims under 16 years

161(1)- (a) Public parks, swimming areas, daycare centres, schools, playgrounds- (b) No employment involving positions of trust and authority and persons under 14- (c) No volunteer positions involving positions of trust and authority and persons under 14

Orders Relating to Animal CrueltyWhen convicted of animal cruelty offences, the court may, in addition to any other sentence impose:

447.1(1)- (a) Prohibition: from owning, possessing or co-habitating with any animal or bird- (b) Restitution for Caretaking animal: readily ascertainable, reasonable costs for caretaking of

animal as a result of specified animal cruelty offence

RestitutionNot “general damages” – may only be ordered where loss suffered by the victim is readily ascertainable- Ability of the offender to pay will be considered

738 Restitution to Owner

739 Restitution to BFP 741(1) Restitution from money found on Offender

Forfeiture of Property490(9) Forfeiture provision

s. 491 forfeiture of weapons etc used in commission

No Contact743.21: victim, witness or other person

Parole Ineligibility743.6- (1) Court may order may order offender serve one half of the sentence or ten years

(whichever is less) before he may be released on full parole where: Sentenced to two years or more jail, (unless life was minimum) conviction for an offence set out in Schedule I or II to Corrections and Conditional

Release Act prosecuted by way of indictment

- considering: circumstances of the commission of the offence character and circumstances of the offender, the expression of society's denunciation of the offence or the objective of specific or general deterrence so requires, order that the portion of

the sentence that must be served before the offender may be released on full parole is one half of the sentence or ten years, whichever is less.

- (2) Principles: paramount principles to guide the court under this section are denunciation and specific or general deterrence, with rehabilitation of the offender, in all cases, being subordinate to these paramount principles.

Victim Fine Surcharge737: A victim fine surcharge is imposed unless expressly waived by the judge- 15% of any fine imposed upon offender- If no fine is imposed

$50 for summary offence $100 for indictable offence

- Court can increase VFS above these amounts

Routinely waived upon request where accused is: unemployed going to jail

Victim surcharge levy- 8.1  (1) If a fine is imposed on a person under a prescribed enactment of British Columbia,

the person must pay to the government, at the time and place where the fine is payable, a victim surcharge levy calculated in accordance with the prescribed formula.

- (2) Without limiting subsection (1), if a person pays or is obligated to pay a fine under the Offence Act, the person must pay to the government, at the time and place where the fine is

payable, a victim surcharge levy calculated in accordance with the prescribed formula.

Breach of ConditionsBreach of ProbationBreach Charge- s. 733.1: Hybrid offence, 2 year max if by indictment

Revoking a suspended sentence or conditional discharge- 730(4) Revoking Discharge

If convicted of a subsequent offence while bound by conditional discharge, the court may revoke the discharge and impose any sentence it could have originally imposed (in addition to imposing sentence for new offence)

- 732.2(5) Revoking Suspended sentence or Extending Probation If convicted of a subsequent offence while bound by probation order, the court may

revoke the suspended sentence and impose any sentence it could have originally imposed (in addition to imposing sentence for new offence), OR vary the probation conditions or extend the order for up to 1 year

Breach of Conditional Sentence- 742.6 New Offence – Breach of CSO triggers a continuation of the sentencing on the

original offence: Bail and process provisions apply, however, as if it were an offence, but bail is

always “reverse onus” s. 742.6(1)&(2) Proof of breach is on balance of probabilities s. 742.6(9) Mandated timeline of hearing within 30 days from arrest or appearance, or as

soon thereafter as is practicable, s. 742.6 (3) Power to adjourn (3.3) Crown usually relies on “paper” case

o Written report required, may include signed statements of witnesses 742.6(4)o report admissible as evidence if notice given 742.6(5)o Accused can apply to compel attendance of supervisor or witness for cross

examination (8)- If Court finds offender BREACHED, Court may s. 742.6(9):

take no action; change the CSO conditions; suspend the CSO and order a portion be served in custody and then re-released on

remainder of CSO (with or without variation to conditions) terminate the conditional sentence order and direct that the offender be

committed to custody until the expiration of the sentence.

Assessing and Describing a Criminal RecordCommon Phraseology:

Minimal/limited/lengthy/extensive criminal history Continuous pattern of criminal behaviour / gaps Related/unrelated Recent/dated A record of … violence, property offences,

As defence, need to look for what good can be said about the record: 6 impaireds = no driving while suspended, this is a man who follows a court order

not to drive when one is imposed (as alternative to jail or detention) Similarly, K files = obeys a no-contact order

Making inferences about the accused: This appears to be the record of an alcoholic (impairs, A record that one might expect of a drug addict

o Newly addicted to a drug (crystal meth): sudden onset of numerous property offences (often with some still to them – frauds, credit cards – new generation of computer savy addicts)

The record reflective of a person who struggles with mental illness (causing disturbance, mischief …

Non-Trial ApplicationsRecognizances (Peace Bond)Recognizance: promise to the court secured by a monetary amount (though seldom requiring a deposit or surety)

810: “Peace Bond” most common form of recognizance. Maximum 1 year- 810.01: Recognizance where fear of certain specified offences

(justice participant intimidation, gangs, terrorism).- 810.1: Recognizance where fear of sexual offence.

In some circumstances, order can be up to 2 years in length.- 810.2: Recognizance where fear of serious personal injury offence (same definition as for

dangerous offenders). In some circumstances, order can be up to 2 years in length.

Firearms ProhibitionsPost-Conviction ProhibitionsAs part of sentencing an offender, the Court may impose a firearms prohibition. These prohibitions are not “stand-alone” applications, but are part of the sentence imposed.

109: after conviction, mandatory (serious offences, drugs…)110: after conviction, discretionary (less serious violence…)

Firearm Prohibition Applications (“Stand-Alone” Applications)With these applications, the firearm prohibition itself is the desired result.

111: Not post-conviction; no criminal conviction results. A non-criminal firearms prohibition order where PCJ satisfied there are reasonable grounds that it is not desirable in the interests of the safety of the person against whom the order is sought or any other person

117.05: Not post-conviction; no criminal conviction results. A non-criminal firearms prohibition application & order where firearms were seized in the interests of public safety pursuant to s. 117.04. There is no requirement that an offence was committed or planned.

117.011: Not post-conviction; no criminal conviction results. A non-criminal prohibition order for a co-habitant or associate of a prohibited person.

Orders Ancillary to the Firearm ProhibitionsFor each prohibition order where are Code sections which allow the Court to:

(1) order the person to turn over firearms still in his/her possession, (2) order forfeiture of those firearms the person turns over, and(3) order forfeiture of firearms previously seized by the police.

s. 109 & s. 110: (after conviction)(1) surrender firearms in possession: s. 114(2) forfeiture of firearms surrendered: s. 115 (3) forfeiture of firearms previously seized: s. 490(9)

s. 111: (not post-conviction, general firearms prohibition)(1) surrender firearms in possession when prohibition imposed: s. 114(2) forfeiture of firearms surrendered: s. 115(3) forfeiture of firearms previously seized: s. 490(9)

s. 117.05:(1) surrender firearms in possession: s. 117.05(6) makes s. 114 applicable(2) forfeiture of firearms surrendered: s. 117.05(6) makes s. 115 applicable(3) forfeiture of firearms previously seized: s. 117.05

Enforcement117.01: offence provision for contravention of any firearms prohibition under the Criminal Code

(3)(a): indictable with maximum 10 year sentence(3)(b): summary

Long Term Offender and Dangerous Offender Notes are posted on the website - Dangerous offender applications

Youth Court & YCJA In BC, all PCJs are also Youth Justice Court Judges (where a youth elects up, the SCJ is also deemed to be a Youth Justice Court Judge) (ss.2&13)

(1) YCJA reflects the view that YPs are not adults studies show judgement part of brain not fully developed until late teens early

twenties As Dave Barrett said, to explain why he went into politics, “there has to be a better

way to deal with 12 year olds than to lock them up!”

(2) Overwhelming emphasis on REHABILITATION and REINTEGRATION Youth often offend as a result of a lack of capacity to follow social norms (not to

mention court orders) Principles reflects society’s interest in rehabilitating and helping to heal and shape

young offenders

(3) Very strong presumption against custody (ss. 38, 39)

(4) Strict limits on maximum custodial terms (s.42)

(5) Strong emphasis on ALTERNATIVE MEASURES, conferencing (with or without charge(s) or conviction(s)), restorative measures at all stages

(6) Strong emphasis on PROTETING THE PRIVACY OF THE OFFENDER Disclosure (really non-disclosure) of records (ss.110-129) Broad power to close the court (s. 132) “Automatic Pardon” (s. 82 “deemed not to have been found guilty or convicted”)

The YCJA Expressly Rejects C.C. sentencing principles, - EXCEPT the Gladue subsection (718.2(e) C.C.) (s.50 YCJA)- Although it makes “accountability” and “meaningful consequences” important considerations

in sentencing, this has been interpreted through the filter of rehabilitation and reintegration- There is no “deterrence” and very little “denunciation” in youth sentencing- Less “finality” to a youth sentence than adult sentences

Adults : can apply to terminate probation, and may benefit from early release, mandatory release, permanent temporary absences, etc

YPs get all that After serving the greater of 30 days or 1/3 if less than a year in total

After a year (mandatory) or 6 months (on application of director which “may” be made on own initiative and “shall” be made if requested by YP, parent or Crown)

and more:o Mandatory review of any custodial sentence (s.94)o Review of non-custodial sentences after 6 months, or sooner with leave

(s.59) In all cases except the mandatory annual review, Court must hear from interested

parties (YP, parent, Crown, director, and if custodial sentence, representative from B.C. and federal corrections) but is only required to “review” the sentence if satisfied there are grounds to do so;

GENERAL DYNAMIC- Where there is a dedicated Youth Court Crown – there is usually a much more collaborative

relationship between the Crown and the defense Stronger emphasis on rehabilitation and education than with adult offenders creates

an environment where everyone is working together to make a plan which will benefit the young offender

- Collaborative relationship with probation officers and social workers Often, especially when a judge is not comfortable with the YCJA, the probation

officer’s recommendations will carry the most weight Probation officer’s insight into the situation of the particular youth leads to situations

where the officer’s recommendations can carry more weight even than the Crown submissions

Probation officer’s recommendations may be based on promises made to the youtho As part of a program of rehabilitation and trust-building, these promises

should be carried through with barring extremely exigent circumstances- Often, the court and its officers develop a relationship with chronic offenders (which is

good) Because consistent “boundaries” and adults who pay attention are usually rare or

absent in their lives Because court may be the only place they are called Mr. or Ms until they give

permission to use their first names Because they know they can’t BS the Crown or the judge and BS is their stock in

trade Because establishing a positive relationship with an adult they trust is often the first

and most important step towards changed behaviour

Mental Disorder(1) The Criminal law presumes a rational, functioning citizen in punishing for transgressions(2) A person is not criminally responsible for their actions if they do not know that what they are doing is wrong (McNaughten)

In Charge Approval:- Crown must assess (a) whether there is a substantial likelihood of conviction and (b) whether

the prosecution is in the public interest- Keeping in mind that:

The case law provides that an accused is entitled to an absolute discharge after an NCRMD verdict:

o Even if they are a threat to public safety, but not a significant threato If they pose a risk to property, but not peopleo If the risk is of offensive but non-criminal behavior

The Assessment:- 672.11 A court having jurisdiction over an accused in respect of an offence may order an

assessment of the mental condition of the accused, if it has reasonable grounds to believe that such evidence is necessary to determine:

(a) whether the accused is unfit to stand trial

(b) whether the accused was, at the time of the commission of the alleged offence, suffering form a mental disorder so as to be exempt from criminal responsibility by virtue of subsection 16(1)

(c) whether the balance of the mind of the accused was disturbed at the time of commission of the alleged offence, where the accused is a female person charged with an offence arising out of the death of her newly-born child

(d) the appropriate disposition to be made, where a verdict of not criminally responsible on account of mental disorder or unfit to stand trial has been rendered in respect of the accused

(e) whether an order should be made under section 672.851 for a stay of proceedings, where a verdict of unfit to stand trial has been rendered against the accused

Unfit to Stand TrialConcerned with the state of the accused only at the time of the trial- Question is whether a person has the very limited capacity to stand trial- Stems from the right to make a full answer in defense- Persons exempt from criminal liability and punishment under s.16 are still fit to stand trial if

provided they possess the limited capacity to understand the process and communicate with counsel Whittle

672.22: accused is presumed fit to stand trial unless a court is satisfied otherwise on balance of probabilities

672.23: Applications- (1) where court has reasonable grounds at any stage before verdict is rendered the court may

direct that the issue of fitness of the accused be tried- (2) accused or prosecutor who makes an application has the burden of proof to show that

accused is unfit to stand trial

Section 2: Accused will be “Unfit to Stand Trial” if unable due to mental disorder to:- understand the nature and objective of the proceedings- understand the possible consequences- communicate with counsel

NCRMDConcerned with the state of the accused at the time of the commission of the offence

s.16: Test for NCRMD:- (1) no person is criminally responsible for an act or omission while suffering from a mental

disorder that rendered the person: incapable of appreciating the nature and quality of the act/omission OR of knowing that it was wrong

- (2) every person is presumed not to suffer from a mental disorder rebut on a balance of probabilities

- (3) burden of proof for showing mental disorder is on the party that raises the issue

Mental Disorder is a “Disease of the Mind” (s.2)

- Cooper “any illness, disorder or abnormal condition which impairs the human mind and its functioning”

PROCEDURE: 672.54 If found NCRMD, a special review board shall, taking into consideration the need to protect the public from dangerous persons, the mental condition of the accused, the reintegration of the accused into society and the other needs of the accused, make one of the following dispositions that is the least onerous and least restrictive to the accused:- (a) Order absolute discharge where NCRMD but not a significant threat to the public- (b) direct discharge subject to such conditions as the review board deems necessary- (c) direct that the accused by detained in custody in a hospital, subject to conditionsThe board must chose the least restrictive option based on the factors672.55 Treatment of the accused can only be ordered with the consent of the accused

Mental Disorder issue can be raised by defense until the verdict is rendered

Crown can raise NCRMD issue only where: (Swain)- the trier of fact has found the accused otherwise guilty, but before conviction is entered- the accused’s own evidence tends to put his/her mental capacity for criminal intent in

question