20.

Laying the Charge

pp. 150 – 154; 294 – 296; 41 – 50

 when information is laid before a justice - someone passes from being a “suspect” to being an “accused". The system has stopped to
discover who committed the crime and will be focusing on proving who committed the crime.
 has great consequences for the individual/ family and the victim of the offence.
 Laying the charge consist both of ministerial and judicial function. Under s 504 CC the justice will perform the essential bureaucratic and
non discretionary function of receiving information.

(with Exception to direct indictment) – indictable offences are charged when an information is sworn, received and approved by a judicial officer
in accordance with s504 CC. This applies equally to offences prosecuted by summary proceedings.
 s504CC- the justice acts in a ministerial fashion and has no discretion over whether to receive the information
 An information may be sworn by any person who has reasonable grounds to believe that an offence has been committed.
 no court can have jurisdiction over the prosecution of an accused person in the absence of a charge.
The informant is a peace officer, prosecutor or private person s 504 CC states some elementary requirements that must be met before a
justice may receive and consider information.
 Information must be in writing and under oath and it must allege the commission of an offence by an identifiable person. It also must
contain allegations affirming territorial jurisdiction of the justice before whom it is laid.
 s506CC- provides the information must be laid in the manner prescribed in form 2.(date, and the place alleged and the date and place
of information and identity of the informant and identify of the justice)
 The informant must declare that they have reasonable ground to believe that than an offence was committed.
 NOTE: It was not sufficient for a police officer to lay information simply on the basis that she was instructed to do soo by her superior. –
R v Pilcher (1981)The officer must personally know enough to reasonably believe that the offence has been committed.
 Private prosecutions are Rare- s579.01 CC The Code provides that the AG may intervene in any private prosecution that has been
commenced either to assume carriage of it or to stop it by means of stay of proceedings.
 Once the information has been received- under s504 the justice who received the information must consider the substance of the
informants allegations.
 The justice may ask questions about the information but the justice is not obliged to observe the rules and principles governing the
admissibility of evidence at a preliminary inquiry or trial.
 The justice must decide to endorse it. The code does not state this but R V Jeffery (1976) it is clear that the justice must personally
consider and agree that there are reasonable grounds to believe that an offence was committed by the person to be charged.
 The judge can refuse to issue process if s/he is not satisfied that it discloses reasonable grounds to believe that an offence has been
committed. A refusal to issue any process by one justice does not prevent the informant from seeking a summons or warrant from another
justice based on the information.

The Charge document 294-296

 when a person is on trial for an offence there must be a document specifying the charge against the person.
 Provincial court judges- information is a relevant court document.
 If not- then an indictment is prepared.
 Most commonly an indictment is prepared following the preliminary inquiry (s574)
 s577- allows for direct indictments-this permits the prosecutor to prefer an indictment when the accused has not yet been given the
opportunity to request a preliminary inquiry, the preliminary inquiry has been commenced but not concluded.
 R v Balderstone (1983) The AG has power to authorize a direct indictment cannot be reviewed by a court.

 information - a document sworn in front of a justice of the peace, alleging that a person has committed an offence. An information is
required for the issuances of some process such as an arrest warrant and is the document based upon which the trial for a summary
conviction offence will occur.

 indictment- a document prepared once an accused has been committed for trial after a preliminary inquiry, though it can also be laid
without a preliminary inquiry having been conducted (directed indictment). This document specifies the particular offence of offences with
which the accused is charged and is the document based upon which the trial for an indictable offence will occur.

 direct indictment- a crown prosecutor has the ability under s 577 CC to prefer a direct indictment which has the effect of requiring an
accused to be placed on trial for the indictable offence charged them either without preliminary inquiry having been held or completed , or
despite a discharge at the preliminary inquiry, This power can only be used with the personal consent of the AG or deputy AG-also known
as preferred indictment.

 R v Light ( 1993) - prosecutions are almost never conducted personally by the AG but by persons who are legally authorized to act in his
name. s 2 provides that deputy can act for the AG

 With regard to summary conviction matters the definition of prosecutor in s785 allows prosecutors
Compelling Appearance s153

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 Compelling appearances and bail provisions operate by granting broad powers to police and judges and to restrict the liberty of individuals but
then attaching significant limitations on the use of those powers
 Satisfy the needs of the state to ensure that the accused persons are present for their trials while, at the same time using those powers with as
much restraint as possible.
 Code provides powers to police to require an accused to attend court through some type of written demand or to arrest the person( not
preferable)
 If the person is arrested- various actors along the way to consider whether the accused can be released without being taken to a justice.
 If possible appearance should be sought without arrest and detention.
 where a person is release preference is given to the means of compelling appearance that is least onerous –especially as regards the imposition of
money debt as a form of security.
 Police can not determine on their own that an accused should be made to attend court: it is always necessary for some judicial officer to confirm
that decision.

1) The process for compelling an accused to appear when charges are not yet laid and

 if a peace officer decides that a person should be prosecuted there are various ways to compel that person to attend court before information is
laid and he is actually charged
 The most obvious way is by warrant. It can also be by means of an appropriate notice a promise to appear or recognize
 s 495(2)- are less intrusive means
 s495(1)- police officers power to arrest without warrant and it is quite broad.
 summary convictions and hybrid convictions or offences listed in s533 are less serious and a peace officer should not necessarily use those
powers.
 In these cases the Code suggest that the peace officer issues an appearance notice instead unless there is a good reason to arrest.
 “A good reason” – is limited that the person would not show up in court, to establish ones identity, secure or preserve evidence or to prevent
the repetition of the offence

s495(2)- the principles is- a police should no arrest simply because they have the power to do so. It does not remove the power though,

if the officer decides not to arrest ..

s 496 does authorize the officer to issue an appearance notice. ( tells them the time and place to go to court) If they don’t appear at court on that time
and date then it is an offence under 144 and a warrant can be issued under 508.

2) The process that is used after charges are laid

Jurisdiction pg 41-50

Jurisdiction to prosecute

 almost all criminal cases are public prosecutions conducted by agents of the AG.
 private prosecutions may proceed unless the case is taken over by the AG

Public Prosecutors (PP’s)

 the AG is the principal law officer of the Crown meaning they are the chief barristers and solicitors for the government. There is an AG in
federal government and provincial government.
 PP’s are almost never conducted personally by the AG but by the persons alleging the act.
 s2 Code specifies that the AG may be represented by his deputy.
 some provinces have conducted a model in where criminal prosecutions are confided to a senior person called the director of public
prosecutions. This model does not change the constitutional position of the AG as chief law officer.
 R v Moscuzza (2003)- counsel may also include not only professional prosecutors but also private counsel who are appointed ad hoc on
behalf of the AG.
 s785 CC- for summary convictions- the definition of prosecutor allows prosecution by the AG, counsel appearing for him, or an “agent” In
some instances, a summary conviction prosecution may also be conducted by a peace officer.
 Requirement for consent by AG- where the requirement exists- is intended to ensure a critical examination of cases before charges are
laid. This will occur where to offences that are highly sensitive to the public or that otherwise require rigorous consideration of the public
interest in prosecution. If consent is required it should be in writing.
 The AG and her agents have a large measure of discretion in the conduct of prosecutions.

Private Prosecutions
 any person may commence a criminal prosecution by swearing an information before a competent judicial authority.
 a private prosecutor is any person under the code who is not an agent of the AG
 Rare- virtually the only reason that motivates people today to private prosecutions is that a prosecutor has decided not to proceed, either
because there is insufficient evidence to sustain the case or because the prosecution of the alleged offence is otherwise not in the public
interest.

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  formal procedure for the commencement of a private prosecution is the same whether the offence alleged is indictable or summary.
 The prosecutor has the carriage of the case from that point and must conform to all the obligations that prosecutors are obliged to fulfil.
( full disclosure to defence)
 s785- a private prosecutor may appear personally or be represented by counsel.
 s 577 the private prosecutor may not prefer a direct indictment without the written order of a judge.
 The AG may intervene in all private prosecutions for the purpose of assuming the carriage of the prosecution or for the purpose of entering
a stay of proceedings.
 s507.1- requires that any information laid under s504 by a private informant must be referred to a provincial judge or in Quebec the Cour
du Quebec

Territorial Jurisdiction
 general principle is expressed in s6(2) CC- a person can only be held liable under Canadian criminal law for an offence that he commits
within Canadian territorial limits. (subject to exceptions)
 this includes territorial seas off Canadian shores and also the Liberman v The Queen [1985] SCC held if an offence is committed abroad
but has “real and substantial connection to Canada it falls within the class of offences committed in Canada”
 issues involving police investigation techniques abroad-sometimes interrogation or searches.
 Questions arise- 1. as to what extent to which an accused can complain of a failure to comply with the Charter standards when the alleged
failure occurred outside of Canada
 Charter is unlikely to have much influence on investigative techniques abroad. Foreign officials cannot be expected to comply with
Charter standards and their failure to do so will not give rise to a Charter violation. example- If US police do not give warning in
accordance with 10(b) then it cannot give rise to a s10(b) claim.
 However- R v Cook [1989] if the conditions in which a statement was obtained are particular egregious, it is possible that attempting to
introduce that evidence at a trial in Canada might constitute a s 7 violation. This authority is overshadowed by R v. Hape [2007]- which
concluded that the approach to extraterritorial application of the Charter in Cook was wrong.
 First- for the Charter to apply it must do so against state actors. s32 Charter
 although a state actor may be involved( police) the principle of sovereignty will normally mean the Charter still does not apply. It will only
apply where the foreign state consented to the application of Charter standards (rare)
 Question 2 arises- whether admitting evidence obtained through the foreign investigation renders the trial unfair, thus giving rise to a s7
violation? –The Charter has minimal impact on investigations conducted outside Canada.
 Crimes can be committed in more than a single place- as a result there can be jurisdiction in more than one country, province or
territory.
 A prosecution may be conducted in any province or territory in which an element of the alleged offence . This allows concurrent
jurisdiction. There is a link in between judicial districts of the court and offence in the sense that some part of the actus rea of the offence
occurred in that district.
 R v. Bigelow (1982)- Accused argument was that the offence of “detaining” had not occurred in Ontario but in Alberta and therefore that
the Ontario trial court did not have jurisdiction.
 s478CC- Ontario court did acknowledge that this s did prevent them from trying the case if” committed entirely in another province”
However, the courtnoted that offence could have elements that mean they were committed in more than one province and identified these
grounds: continuity of operation , commission of an overt act, and the generation of effects.
 transportation of People who commit a crime in judicial district – s543 Code provides that such persons may be transferred to the
judicial district in which the offence is alleged to have been committed.
 a judge may issue a warrant to authorize the transfer of that person.
 Impartial juries or pre-trial publicity- s599CC- provides that a change in venue may be order if it is “expedient to the ends of justice”.
(A trial that is scheduled within the judicial district of the alleged offence may be moved to another district within the same province. )
 an application will be granted if there are ground to believe that a jury in that venue could not try the accused impartiality but applications
for a change of venue are not restricted to lack of impartiality of the jury. ( also extensive pre-trial publicity)

21. The Significance of the Charge

 It is a trial to determine whether the Crown prosecutor can prove the specific allegation that has been made, beyond a reasonable doubt.
The accused is in jeopardy of conviction only for the offence charged, and for any offences that are “included” in the criminal charge.

 R. v. G.R., [2005] S.C.J. No. 45 –the court has stressed the importance of the information/indictment document holding that “it is
fundamental to a fair trial that the accused know the charge or charges he or she must meet.”

22. The Validity of the Charge
- Coughlan, pp.296 – 312

content of charge - s581(1)CC- whether a multi-count or individual count information- “ shall contain in substance a statement that the accused or
defendant committed an indictable offence theirin specified.”

 s581CC sets out some rules for that statement.

 s583CC- a count shall have sufficient detail of the circumstances of the alleged offence to give the accused reasonable information with
respect to the act or omission to be proved against him and to identify the transaction referred to.
 Code provides the standard to be met. for example
-581(5)- may refer to the particular section of the charge.

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 Not fatal if not added: name of person who was/about to be injured. or does not name or describe with precision any person, place or
thing.
2 rules dealing with indictments- s581(3)- dealing with insufficient detail and the R v. Vezina and Cote [1986] “surplusage rule”
dealing with additional unnecessary detail.
 Crown will be required to prove all of the details of any allegation made. However it is open to a court to find that the detail in the account
is actually sursplusage and the fact need not be proven.
 R v. N.C. (1991)- SCC held- the court having charged the accused with trafficking cocaine, the Crown was obliged to prove that the
substance was actually cocaine: their failure to do so would mean she must be acquitted. similarly
R v Saunders [1990]- the Crown had charged a number of accused with conspiracy to import heroin. The charge would have been
perfectly acceptable had it not specified which narcotic was to be imported. However having specified heroin, the Crown was obliged to
prove that the conspiracy related to that narcotic in particular. however
 R v Hanna ( 1999)- accused was charged with theft from Nova Scotia Power Commission and obtained a directed verdict ( no case to
answer) because the only evidence of ownership showed that the gravel was owned by the Power Corporation. The decision was
overturned at trial on the basis that there was “no possibility that the accused could fail to identify the event that gave rise to the charge
against him”. similarly
 R v . Vezina and Cote [1986]- charged with fraud in an information that specified the Bank of Montreal as the victim. In fact the
Crown was unable to prove the Bank of Montreal would have suffered any loss from the accused’s fraud. Court Held: that the
information would have been initially have been in valid, even if it had not specified a victim. It did not matter that the Crown was
unable to prove the particular allegation, which was mere surplusage. Didn’t matter to the defence, it would have been constructed in
the same manner.

Note: whether detail will be considered surplusage depends on whether the accused defence will be prejudiced. ASK: would the defence
have constructed their defence in a different manner?

defective remedies – there are 3 possibilities arising out of an error in an indictment.

1. If it is so flawed that it is an absolute nullity then a trial judge has no jurisdiction to hear the matter and the charged must be quashed.
2. In the even that the accused was never in jeopardy and so the Crown can simply law a new information without violating the double
jeopardy rules( the only remedy is a greater clarity of the new charge)
3. The charge might be flawed but not so flawed that it is nullity- the trial judge will amend charge. If the accused has been prejudiced by the
error, the trial judge is to grant an adjournment in order to remedy that prejudice.

A charge can only be charged quashed only if the prejudice caused by the amending cannot be remedied by an adjournment.

Occasions when a charge contains an error but is made smaller still by the provisions of s601CC

s601CC. First, an objection to an indictment for a defective apparent on its face should be made before an accused has pleaded. Likely hood that the
accused has suffered any irreparable prejudice is small. The grounds upon which a judge “shall” make an amendment are quite broad and require:

- a) that that charge is laid under the wrong act

- b) fails to state or states defectively an element of an offence does not negative an exception that should be negative or is any way defective in
substance, provided the amendment to be made was disclosed by evidence

- c) s601(3) that the indictment or a count thereof is in any way defective in form.

 These provisions do not completely remove the possibility of a charge being quashed. Moore- though it stressed the preference for
amendment over quashing.

 R v. Tremblay [1993]- after all the defence had been presented – defence argued around bawdy house not being indecent- the
prosecution made two applications to have the words “the practice of indecency” and “the practice of prostitution”- amendment
refused. If occurred before the defence then it may have been ok.
 R v Thatcher (1986) an accused cannot use particulars use a way of limiting the options available with the Crown.

What is a defect of a charge? - R v Cote [1978]- a charge is defective when it departs from the “golden rule”. The accused is “entitled to be
reasonably informed of the transaction alleged against him, thus giving him the possibility of a full defence and a fair trial”

generally speaking the rules quite a wide range of forms of charge.

insufficient charges- the most common alleged problem with indictments relates to the requirement in s581CC that account must contain sufficient
detail standards in (s510(3) give the accused reasonable information and to identify the transaction. Courts frequently refer to R v Brodie [1936]- -
that the indictment must life the charge “from the general to the particular.” However that courts have generally favoured the view that the alleged
procedural defects should only rarely prevent a trial.

 R v Ryan (1985)- words such as “on or about” “at or near” should be upheld.

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 counts charging an offence as having occurred somewhere within a ten-month period years earlier or R v Colgan (1986) during a 63 month period
also have been upheld.
 R v Douglas [1991]- Time is not required to be stated with exact precision unless it is an essential part of the offence charged and the
accused is not mislead or prejudiced by any variation in time arises.
 Unless time is the essence of the charge- the time of an offence is not an essential element.
 R v Hamilton –Middleton (1986)- time could be of the essence where an accused was entitled to take items or perform actions (such
as fly a plane) during some periods but not others.
 R v B.(G)- alibi evidence led by the accused can sometimes make the exact time more relevant.
 R v MBP [1994]- whether the Crown has closed its case before seeking the amendment can also be significant.
 R v Henyu [1980]- an information is quashed at trial for failing to disclose an offence know to law on the basis that it failed to
explicitly allege that the accused cause bodily harm
 s581(2)- it is sufficient to repreat the words of the Code in the charge.
 however, in R v Wis Development Corp [1984]- the court did not accept “operated a commercial air service” without anything
more. this failed for not meeting the sufficiency standard in s510(3)CC .However keeping a common bawdy house or an accused
had control of a vehicle have been found to be unaffected by the Wis Development rule.

duplicitous charges- autrefois acquit and autrefois convict- double jeopardy

 a flaw in counts that distinct from insufficiency is duplicity.

 even if the charge is duplicitous it is not fatally flawed. s590(2)(b) allows the accused to apply to have a count that is double or mutli
farious either amended or divided into two or more counts.
 only a trial judge has the power to divide the counts.
 Litchfield- a doctors had charged with sexual assaults arising out of examinations had his trial divided based on the parts of the
complainants body this was order ought not to have been made.
 Duplicity in effect suggest that the accused has been given too much information.
 A duplicitous count is one that charges the accused with committing two different offences and it is objectionable because the ambiguity
prevents the accused from knowing the case to meet. s590(1)(a)- If an ambiguity does not arise to that level then it is not duplicitous.
 This is a distinct requirement from the single transaction rule in s 581(1)
 an information that contains two counts separated by the word “alternatively” is not duplicitous.
 conspiracy cases- a single count charging the accused with more than one conspiracy would be duplicitous.
 Lilly- real estate broker charged with thefts based on a series of withdrawals. Court held that although it would have been acceptable to law
a single count, it would have been preferable to have divided the counts once the accused had two separate defences.
 R v Fischer ( 1987)- the fact that accused employment has been terminated does not mean that a count of theft must be divided to deal with
continuing actions before and after he was fired.

23. The Adversarial Process

At trial the Crown must prove the specific allegation made in the charge BRD (charge= information or indictment).

 Pleas s606 CC. Guilty, not guilty or special plea (s607 CC:autrfois acquit, autrefois convict or pardon), also s611 justification to charge of
defamatory libel
 Special pleas – ie matter has already been dealt with
 guilty plea – admission by the accused, effectively a waiver of the right to trial
*court should inquire into the plea if there is any reason to doubt the accused understands its effect. While the court is not generally obligated to
do this, in the case of young offenders a judge must be satisfied the facts will support a charge before accepting guilty plea, per s36 Youth
Criminal Justice Act).

 not guilty – not claiming innocence, but demanding that the Crown prove all the elements of the offence and disprove the existence of any
defences. This plea puts any available defence into play (unless special plea is required).

 Refusal to enter a plea – judge must enter a plea of not guilty, s606(2).
 W/ Crown's consent accused can plea guilty to some other offence arising out of the same transaction whether or not it is included in the
offence being charged.
Valid guilty plea =

 voluntary
 unequivocal
 based on sufficient info re nature of charges and conseq of plea
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  Withdrawing Guilty pleas
 Guilty plea can be w/d if valid grounds for permission.
 W/d not avail when:
-judge rejects joint sentencing submission because co-accused has been acquitted
-when Crown subsequently makes application for accused to be declared a dangerous offender

W/d of guilty plea requires some special circumstance that guilty plea should not be accepted at face value as a legitimate concession of guilt. eg.
accused was pressured by counsel to enter a guilty plea.

OR accused wished to plead not guilty but plead guilty to obtain immediate fine and avoid being held in custody until trial, or to avoid a more serious
charge (eg. 1st as opp to 2nd degree murder)

 Taillefer – accused received disclosure of evidence 4 yrs after guilty plea, Court held even valid guilty plea could be w/d if Acc's
Constitutional rights violated.

Test for w/d of guilty plea after disclosure of (previously undisclosed) evidence:

How would a reasonable person have behaved w/ the knowl. of the undiscl evidence?

If: realistic possibility they would have run the risk of trial, leave must be given to w/d the plea.

 Judge can but has no obligation to hear evidence after a guilty plea. If it comes about that the accused did not intend to plead guilty (either
in whole or in part) or misapprehended the conseqs, the judge can permit w/d.
 Counsel has an ethical obligation to ensure client understands and truly wishes to plead guilty and judges should also be sure of this.

 No such thing as a conditional plea (Contingent on crown proving / finding a fact).

 But in case of theft accused may concede to having taken items but claim colour of right or deny the necessary mens rea, s655 CC.

 Accused must be present during whole trial (n/a to corporation). --> so accused must be present for plea, s650 CC.

 Exception summary offence : s800 authorizes appearance by counsel

 If accused is present and counsel enters a plea to an indictable offence – then the plea is generally binding on the accused

 Accused can appear electronically if simultaneous video/audio and accused can consult privately with counsel.

Trial Procedures

CC Parts XIX (trial by jduge alone), XX (trial by jury), and XXVII (summary trials)

 proceeds continuously unless judge grants adjournment.

 accused to be present unless judge excuses them (summary – vice versa – jusge can order attendance, otherwise ok for counsel to appear)
-attendance by video link for some parts (not when evidence is taken)

-if accuse absconds – court can either adjourn and issue arrest warrant or continue trial w/o them (if counsel acts for accused who absconded - their
right to full answer and defence not violated).

-during trial judge decides where accused will sit – may have to sit in prisoners dock unless this will violate the accused's right to full answer and
defence.

-judge can ask questions but must avoid apprehension of bias in doing so

-juries can also ask questions wihtin limits – up to parties to decide how to prsent their case – so juries caot become interrogators – best option is for
jury to submit questions in writing to judge at end of trial, then judge and counsel can discuss whether they should be asked.

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Opening Statements

 crown opens with statement of its case and the evidence to be called
 crown is free to modify its strategy though – short of abuse of process, Accused cant object
 use defence has to wait until close of crown case to make their opening statement –judge can allow accused to make their case right away –
prevailing view is that this does not oblige the accused to actually call evidence right then.
 defence might call evidence during cross-exam of Crown witnesses
 If Crown adduces hearsay evidence in anticipation of direct testimony to support it later, but does not end up calling that witness – this can
be remedied by adequate instructions to jury

Crown Case

 evidence taken under oath in the presence of the accused – accused entitled to cross-exam and evidence is recorded
 Crown must prove every element of offence – unless accused concedes to a certain part
-can occur through “agreed stmnt of facts” or waiver of a voir dire

-but silence or lack of objection to a stmnt is NOT waiver (R v Park)

 even if accused is silent – admission of a statement not fatal to case, unless clearly evident that there was a need for a voir dire (despite
failure of defence to request one) and judge admitted the statement anyway

adversarial nature of process : calls for considerable discretion as to how Crown will present its case

 no obligation to call every witness w/ relevant info, or to call a witness it does not consider necessary to its case (not even the complainant
– although judge might comment to jury about this choice)
 Defence not entitled to cross examine all witnesses* – but can call any witness not called by Crown as part of the defence
 *possibility for application under the Canada Evidence Act to cross a witness.
 also judge can call witness as Court's witness allowing defence to cross-examine – may be appropriate where defence having to call the
witness makes the accused give up the right to speak to the jury last

-normally evidence produced by witnesses on the stand (via testimony and / or documents)

-s709 CC allows commission evidence for witnesses who are abroad or cannot attend for “good and sufficient reasons” such as illness.

-see Code for special rules on proof of:

 -ownership / value of property - s.657.1

 expert's reports – s657.3
 dates of birth – s658(3)
 previous convictions – s667

 sometimes evidence taken at PI can be used at trial – s.715 (and 657, 541)
 videotaped evid of persons under 18, or physically/mentally disabled, can be used for sexual offences – s715.1 & 2
 use of technology avail if incr effeiciency -R v Mackay
 jury must be able to see any person place or thing (s652) – at any time prior to rendering of verdict (even during deliberations)
 this applies to judge where no jury present
 witness who refuses to testify can be imprisoned by judge for up to 8 days at a time (s545)
 at close of crown case accused can apply for directed verdict – at which point judge can order acquittal (CL power) aka
“nonsuit” or “no case to answer”
 this is consistent with roles of judge and jury
 jury = trier of fact – called upon to assess credibility of witnesses and decide whether Crown's case proven BRD, etc

judge = not to intrude in jury's role BUT where Crown failed to adduce evidence of essential element to the offence, trial judge can in effect “release
jury” and enter acquittal

 accused has the right to hear judge's ruling on motion for non suit beofre deciding whether to lead evidence in defence (R v Boissoneault)
 judge's ruling cannot be based on reliability of evidence – not permittd to weigh the strength of the evidence – when there is a jury


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Test for directed verdict:

(Same as PreI)

-whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.

and

-a justice is required to commit a person for trial where there is admissible evidence which, if it were believed by the jury, would result in a
conviction.

 -not enough that evidence is “weak”

 only avail where there is a complete absence of evidence on some point that must be proven
 ie becomes a stricly legal question (not a factual one)
 directed verdict should not be used for when Crown's case is purely circumstantiall
 that is left to the jury to determine whether there is another rational explanation for the circumstantial evidence other than that the accused
committed the crime.
 there may be scope for trial judge to do this by applying the PI teest with respect to a purely circumstantial case: that is whether if Crowns
evidence is believed, it would be reasonable for prop instr jury to infer guilt.
 directd verdict can be granted on charge laid – but the trial continues to decide whether accused is guilty of any included offences. (eg. R v
Titus – Court agreed to direct acquittal on 1st degree murder but allowed trial to continue to decide guilt of 2 nd degree murder)

Defence Case

 accused is entitled to make full answer and defence ss541, 560 CC

 defence enjoys same discretion as to how it will present case – judge cannot direct order of witnesses or require accused to go first.
 accused is competent but not compellable – neither the judge nor Crown can comment on accused choosing not to testify – consistent with
accused's right to silence and presumption of innocence guaranteed by the Charter.
 normally defence cannot cross exam own witnesses
Reopening Crown Case

After defence closes its case that's it - “splitting the Crown's case” is prohibited- Crown not allowed to present some evidence before and some after
accused has made decision whether or not to remain silent

BUT the Crown can in exceptional cases apply to reopen its case and call further evidence

keystone principle whether to allow Crown to reopen its case:

judge must ask whether accused will be prejudiced in making a defence

-discretion to allow it becomes narrow as case proceeds

-discretion is most broad during Crowns case at opening of trial

-less discretion when crown has closed case and before defence has elected whether to call evidence

-finally after defence has begun its case discretion is “extremely narrow” and far less likely to be exercised in Crown's favour – and accused's
interests will be paramount at that point

(R v G (S.G.) [1997] 2 SCR 716

-it ought to be new evidence – ie not foreseeable by Crown and it is in interests of justice to allow

AND

-either defence must have contributed (directly or indirectly) to Crowns failure to adduce the evidence earlier – or Crown made technoical error that
does not go to substance of the case

8
Crown's fault not relevant (ie. extent of Crown's diligence) – the main concern is to protect the accused from being prejudiced and the accused's right
to know the case before putting forward a defence

 Eg. Crown allowed to reopen R v Sylvester – police officer received telephone calls from witness on weekend following crown's closing
arguments. Witness said she had lied on the stand and then retracted that claim. Crown permitted to reopen to present phone call evidence.
Defence was allowed to cross examine, to call the witness to the stand again and to make further submissions. Cof A held no problem with
this conduct of trial since judge fully instructed jury on limited use they could make of the evidence.

Rebuttal Evidence

permitted when:

defence raises new matter or defence which Crown had no opportunity to address AND which Crown could not have reasonably anticipated.

Crown cannot be permitted to simply reinforce or confirm evidence adduced earlier which could have been done during Crowns case.

Use for when Crown is surprised by an issue being raised (and not for something they already dealt with / anticipated.)

 R v Biddle – accused charged with assault btw 10 and 10:30 pm. Accused took stand and claimed he was at a show btw 7:30 and 9:15pm
and then several bars later on. Crown led rebuttal evidence that witness testified he followed her in his car at 8:30 pm – Court held this
evidence should not have been allowed in rebuttal since it should have been presented during Crown's case. - Accused had given a
statement to police about his whereabouts and ought to have anticipated a challenge to the identification evidence. Crown could have
presented the witness as part of its case – failure to do so prevented the accused from knowing the case against him before testifying.

Note: not a case of not knowing case to meet where defence raises unanticipated matters – those would not have been part of the original case to
meet. So rebuttal evidence with respect to such matters should be admissable.

Reopening Defence Case

 Since defence case comes last – there is a short time frame for this to occur

-in juge's discretion

 eg. R v Scott – co-accused sought bench warrant for witness who had not responded to subpoena – application was unsuccessful and
defence entered no evidence and moved straight to final submissions along with the Crown. Witness then appeared and accused sought to
reopen case. Court of appeal held she was right to refuse the application because the trial judge has an obligation to ensure expeditious and
orderly trial, also it went against the accused that 1)she was given no explanation as to why the testimony would be relevant. and 2) the trial
judge had to aslo consider possible prejudice to the co-accused who had objected to an adjournent.

Case cannot be reopened oncejury has reached verdict or trial judge has entered acquittal.

But possible to reopen case after guilty verdict entered by judge alone, in special circumstances.

-Test for admitting new evidence in this case will be the same as that of entering fresh evidence on appeal.

Addresses to Jury

Closing arguments:

per s651 – If defence has not called evidence, then Crown argues first. If defence has called evidence it gives closing arguments before Crown.

(If more than one accused – all are affected by either one calling evidence and if this happens, Crown argues last.)

But if Crown's closing address in a particular case is irregular or threatens fairness of trial – 2 options:

1. trial judge (who is always gives the final address) can cure the defect by instructing the jury to ignore the improper aspects of an argument,
or
2. the court can use its inherent jurisdiction to allow the defence a limited reply following the Crown's address, where not doing so would
prejudice the accused's right to a fair trial and to make full answer and defence
-happens where Crown makes unanticipated/surprise argument
9
-Charter - although majority of SCC held that ss7 and 11 not offended by Crown being allowed to speak last (s651) – all 9 judges thought better
alternatives existed – such as always allowing accused to have last say or being given a choice as to when to speak.

Charge to the Jury:

-Judge's instructions to jury.

-s650.1 permits judge to confer with counsel as to what matters should be explained to the jury – purpose is to leave jury with sufft understanding of
the facts as they relate to the legal issues

Judge's charge Requirements:

 fair
 dispassionate
 last thing said to jury before they commence deliberations
R v Daley - jury cannot be left to their own devices as to what evidence must be considered:

 judge should:
■ review substantial parts of the evidence;
■ review the prosecution's theory
■ give the jury the theory of the defence so they can appreciate:
 the value + effect of the evidence; and
 how the law is to be applied to the facts as they find them

-judge should also provide instructions as to:

 all the defences which arise, whether accused has raised them or not
 other relevant issues such as
 use that can be made of accused's criminal record;
 issues surrounding circumstantial evidence;
 identification evidence; and
 alibi evidence
 and finally, the procedures for deliberation (how long it can be, etc)

 (judge may ask counsel if there is anything more that needs to be said but error to allow either counsel to address the jury again themselves)
 and not advisable that charges be split with counsel being allowed to speak in between
 instr to jury need not be perfect – but must be “proper”
 common law matter, which gives judges some leeway, including experimentation w/ new approaches – provided that at the end the jury
understands their task and has been given the assistance they require
eg. R v Menard – instr were given in 4 parts: 1. substantive law at start of trial 2&3.instr two specific matters during course of trial and 4. reviewing
the evidence w/o reviewing the other instructions (although transcripts were distributed to the jury) at the end of the trial.

SCC held no miscarriage of justice but did not agree with the method used of instructing jury at outset – on issues that might not even arise during
trial / or bear significance – also important issues such as reasonable doubt, presumption of innocence and burden of proof too important to be
addressed at the end by handing out the transcript of earlier instructions.

-sometimes better to not restate the facts for each charge – but not to say a charge that is very long will be an error:

R v Fell – 4 day charge given to jury did not make the trial unfair, as there was nothing inaccurate in the charge

 judge's charge is fruitful source of argument – since appeals usu focus on legal issues, ie did the trial judge accurately describe the law?
 in reviewing trial judge's instr – charge is viewed as a whole and inadequacies in one portion may be compensated for at another end.
 trial judge entitled to offer opinions on matters of fact – but not to remove the decision making from the jury – this would offend s11(f) right to
trial by jury
*no such thing as direccted verdict of conviction (can only direct verdict of acquittal)

After the charge the judge will allow some time for consultation with counsel, prior to deliberations, and consider any comments made...

Then the judge may Re-charge the Jury:

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-may correct an error i original charge – making charge satsif taken as a whole

Rv W.(D.) - error in re-charge to jury did not form basis of appeal because re-charge was quite short and took place only a few minutes after original
charge, and judge instr jury not to give special emphasis to the re-charge , but to keep the duties he outlined in the main charge in mind.

-if jury has begun deliberations and asks a question – that re-charge is very significant

-judge hears counsel on what might be the correct response and answer given must be correct and comprehensive - cannot be saved by referring to
original charge – because it is clear that that wasnt enough to provide clarity the jury needed.

Judge and Jury – Impartial Trier of Fact and/or Law

 Judges authority over court process comes from common law / statute
 also s482 CC empowers Superior Courts to make rules of court (these rules must be consistent w/ CC)

Trial Judge

-decides how trial will run. Incl: curtailment of cross-examination; preventing harrssing/ irrelevant questionning; and can ask witnesses questions
themselves

-that discretion must not violate accused's right to fair trial

Test: Would a reasonably minded person who was present throughout the trial consider that the accused did not have a fair trial?

-R v Valley

-s485 preserves Court's jurisdiction over accused despite failure to comply w/ CC provisions – if Court does lose jurisdiction, can be regained by
issuing warrant w/in 3 months – otherwise proceedings dismissed for want of prosecution. Crown would be required to obtian special written
permission to lay new charges, from the A-G

 power to grant adjournments during proceedings, ss537; 645

 judge can also exclude any/all members of public from all /any part of trial, s486(1) – where interest of public morals, maintenance of
order, or proper administration of justice
 also incl : interests of witness under 18 in sexual assault trials, s486(2) – and a judge that does not grant request for exclusion in sexual
assault case must give reasons.
 (the provision violates s2(b) by allowing judg to prevent press from reporting on a case, but is saved by s1 CBC V NB (A-G) case)

Test for whether s486 exclusion discretion was exercised properly:

1. Has judge considered the avail options – i.e. reasonable and effective alternatives?

2. Has judge attempted to limit the order as much as possible?

3. Has judged weighed importance of order + possible effects against importance of openness + limits on expression in order to achieve a proper
balance – ie so that negative doesnt outweigh the positive?

(CBC v NB)

 special provision is also made for how certain persons can be allowed to testify – s486.1
 witness under 18 or w/ disability can have a support person of their choice nearby.
 can also allow such witness to testify outside crtrm or behind screen – but only if judge thinks it is required in order to obtain full and
candid testimony
 in either case although witness may be protected from seeing the accused , the accused will still be able to see the witness.
 judge has trial mgmt power – incl: limits on oral submissions; direct submissions to be written; require offer of proof prior to voir dire,
defer a ruling, direct manner of voir dire (eg. w/ testimony or w/o), and order of evidence (exceptional circumstances)
 always remember – trial judge must not create reasonable apprehension of bias

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Publication Bans

 conflict with open court principle – not used freely

 can be both CL and statute based
 s486.4 – allows pub ban of sexual assault complainant or witness
 if under 18 judge must inform of right to apply and if Crown asks for it, must be granted
 s486.5 – judge's discretion to allow ban on disclosure of witneess/victim's identity
-can also be used for other participants such as jury/prosec/officer.
-see also s276.3 ban on previous sex activity; and s648 on evidence from trial where jurors separated before deliberations
-YCJA bans on identifying young person being dealt with under the Act
-young persons who are victim / witness to YCJA proceedings may apply to personally publish info once they reach 18 yrs of age
 Dagenais v CBC – common law power to issue pub ban – application made in absence of jury – judge decides to give media standing – cl
rule that ban can be ordered if real and substantial ris of interf w/ right to fair trial, had to be modified by Charter which also guarantees
freedom of expr and of the press
-ban was justified bc of alternatives avail. incl: adjourment/sequestr jury/change of venue/strong directions to jury
 R v Mentuck – not about “fair trial” issue, Mr Big scenario = suspect induced to give info to “criminal higher up” who he wants to be
recruited by. Crown sought ban of P.O.s names and about the technique itself. Judge granted banof identities but not of technique.

-but importantly Court recognized rights other than that of “fair trial” could be weighed against the freedm expr/press guarantees.

Court will seek to balance : rights that make up proper administration of justice with s2(b) freedoms -

Dagneais/Mentuck Test for Publication Bans:

Publication ban should only be ordered when:

a) such order is nec to prevent serious risk to proper admin of justice because no reasonable alternative measures will prevent the risk

b) salutary effects of the ban outwiegh deleterious effects on parties and the pulic incl right to free expr, right to fair and public trial, and efficacy of
administration of justice

-Onus is on person seeking ban

Contempt of Court

 common law power expressly preserved by s9 CC (appeal procedure s.10)

-2 types:

1. contempt committed in face of court -Superior courts and Inferior courts

2. contempt committed not in face of court -Superior courts only

-under YCJA youth justicecourts(and any other) have broad discretion over both types when committed by a young person.

Contempt in face of court can incl: insolence to the court, refusal to answer questions while under oath

-intended to maintain courts dignity and fairness of trial

can be applied 2 ways:

1. ordinary procedure – gives accused usual procedural guarantees of a criminal trial

2. summary procedure – only avail if urgent and imperative to act immediately. Only least possible power necessary should be used.

3 steps to contempt charge (summary procedure):

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1. put person on notice to show cause why they shouldn't be held in contempt

2. adjournment given to allow consultation w/counsel

3. opportunity given to person to make representations as to sentence

-failure to follow these steps = error of law

-if made with jury present, it must be emphasized that guilt of contempt does not=guilt in actual trial

Mistrials

 can be declared at any point in proceedings (as early as jury selection; as late as post conviction, but pre-sentence)
 causal issues incl: inappropriate publicity; other errors during jury selection; improper comments by Crown during address to jury;
inadmissible evidence given to jury by accident
 remedy of last resort, not automatic – usually preferred remedy is to direct jury to ignore the inadmissible evidence / comment
 if so prejudicial jury would not be capable of disregarding it then jury has to be discharged and new trial ordered (R v D. (L.E.))
 either accused or crown can apply
 can happen in trial by judge alone
 will not be interfered with on appeal unless court is clearly satisfied that judge proceeded on a wrong principle of law or was wrong
 judge can also declare mistrial per s653 in case of hung jury
 accused cannot plead autref convict/acquit in case of mistrial
 where a mistrial declared to save floundering Crown case – accused may have recourse to Charter to prevent a new trial, but in most all
other cases new proceedings are commenced

24 Statutory Police Powers

 ss494-528 CC – powers of arrest

 only time PO cant arrest – summary offence only and accused not caught in the act
 ss25-33 related powers – use of force
 s487 search powers and seizure of evidence
 general power to seize anything (w/no warrant) thought to be obtained in commission of an offence

also in the code authority to:

 492.1 use a trakcing device

 492.2 install recorder on telephone
 487 video surveillance
 256 obtain blood samples
 487 obtain handprints etc
 487.05 obtain DNA samples
 487.01 PO can apply for warrant to “use any device or investigative techniue or procedure or do anything”

othe statutes can auth investig techniques – eg. prov legisl auth random vehicle stops (other examples on p13)

 s25.1 – broad power allowing POs to do what otherwise would be a crime

 -given broad PO powers in statute Courts cautious about extending powers at CL
 eg. R v Kokesch – property rights need clear stat lang to be intruded on by POs

Common Law Powers

Historical CL Powers

-powers of search incident to an arrest:

Cloutier v Langlois – police have the power to search a lawfully arrested person and seize anything in his possession or immediate surroundings to:

1. guarantee the safety of the accused and of the police and

2. to prevent escape or
3. provide evidence against him
this power was expanded – beyond its original purpose of preserving evidence
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  R v Stillman: a broader search incident to arest power applied to vehicles. As for searching the person – the power did not go beyond
discovering evidence that might disappear
 R v Caslake: pretty broad- ensure safety of police and public; prevent destruciton of evidence; and discovery of evidence to be used at trial
 R v Golden: was there a CL strip search power? Yes – But no more than a “frisk” search UNLESS there are reasonable and probable
grounds to believe a strip search is necessary in the partic circumstances. and unless the search cannot be postponed must be done at
station.
 -entering private dwelling in hot pursuit of person fleeing arrest:
Eccles v Bourque – police have power to arrest perosn w/in private dwelling

note : CL rules that devd pre-Charter need to be re-examined (R v Feeney) Thus warrantless entry of a dwelling is prima facie unreasonable

New CL Powers – “Ancillary Powers Doctrine”

under s9 courts have decided that “legal” detention is not arbitrary detention

The Waterfield Test:

1. Does the conduct fall w/in scope of duty imposed by statute or recognized at CL?
2. does the conduct, although within general scope of such a duty, involve unjustifiable use of powers associated with the duty?

 first branch of Waterford not likely to fail but second branch depends on:
 the duty being performed
 extent to which interference w/liberty is necessary
 importance of duty to the public good
 the liberty interfered with
 nature and extent of interference

(Godoy)

 Note the distinction btw PO's duty and PO's powers – in the case of exercising mere power persons who get in the way cannot be accused
of obstrcting them in execution of their duty.
 But this law has not been consistently applied :
Stenning – PO entered premises w/o stat auth and was assaulted by person insde. In that case the PO was found to be in execution of his duty because
he was “investigating”

 undesirabe uncertainty coes fro the fat that Waterford tst can be used to justify poice behaviour after the fact
 Police given very broad powers which incl “preservatio of the peace , prevention of crime and protection of life and property” - Dedman

The wide range of powers pre-auth by statute and communications technology the need for broad CL powers is small

“Default” CL Powers

=the power to do anything that will not result in some remedy to the accused

Pre-Charter there was no basis to exclude evidence that was relevant

s24(2) now allows excl of some evidence – but if there is no Charter breach this section cant be relied on; and the evidence will be admitted.

s8 right against search and seizure onlly applies where reasonable expectation of privacy is had.

Otherwise in most cases a warrantless search is prima facie illegal – unless justified in some way.

The default power works like this (p21): no reasonable expectation of privacy in electricity consumption records – therefore s 8 not invoked if
obtained by police w/o stat authority – no stay of proceedigs and no exclusion of evidence will be granted – since no Charter breach occurred --->
this essentially “gives the police the power to obtain electr consump records w/o a warrant” although no one calls it that.

other examples:

-guest in an apt has no reasonable expect of privacy engaged by search of the apt

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-passengers in an MV

24 Consent

 cooperation by suspect – another source of PO power

 -PO can question a person re suspected offence – but cannot compel them to answer - if they voluntarily answer than the info is admissible
also incl police request to provide DNA samples; appear in a lineup; or stop a vehicle
- no stat / CL auth requiring accused to participate in a lineup – but there also has been no decision stating that there is a positive right
to refuse --> meaning refusal to do so can be brought up at trial
- (but note prob will agree because police can try other ways such as showing the accused to a witness by himself)
- At some point during an interview with a witness they may become a suspect – and should be considered “detained” invoking s10(b)
of the Charter

Limits on consent:

-to take DNA for one offence (voluntarily) but used for investigating another than involves s8
- on the other hand if DNA is handed over w/ no restriction on its use the accused no longer has an expectation of privacy – and police
can use it anyway they wish
- Also need to consider whether the consent is real – some people think they have to comply with a partic request which isnt an
informed and truly voluntary form of consent.
eg. emptying contents of sports bag – not automatically “consensual”

Search and Seizure

 Baron v Canada – decision to grant/withold warrant requires balancing of 2 interests :individual freedom from intrusion by state and the
state's need to intrude for law enforcement purposes
 Hunter v Southam – the question is: whether in a particular situation, public's interest in being left alone must give way to govt interest in
intrusion to advance goals of law enforcement
 In other words, priority is given to the individual’s interest but ever since PO powers have enlarged

 CanadianOxy Chemicals may be a departure from Hunter - which made no mention of individual interest in determining the scope of
search provisions of s487(1)

 Search = intrusion on reasonable expectation of privacy

 Inc: frisking, electronic monitoring, inspection of a workplace, wiretap, video surv.
 Does not incl: request to inspect foreign docs – (although supplying those docs might be)
 Seizure = not based on compulsion or deprivation but on reasonable expectations of privacy
 Incl: photocopying company documents, doctor handing over blood sample to police (if dr was only auth to have the sample for limited
purposes)
 Does not incl: evidence that is “found” (like sample of blood taken from car accident)
 Also an exception: taking bodily fluids abandoned by an accused
 -but this exception has been contained:
 Stillman – accused not in custody discards kleenex or cigarette butt – police may ordinarily collect these items and test them w/o consent
– but when accused in custody discards items containing bodily fluids – its a different story.
 - if they are in there for days may have no choice but to proide some kind of sample at some point.
 Nguyen – offering accused a piece of gum knowing he would have to discard it before entering courtroom.

Searches with a Warrant

Warrants require information on Oath – by PO who is in position to know.

Places – s487

 Minimum Constl reqts set out in Hunter reflected in the code:

 CC reQ: that warrant must be issued by Justice - Hunter: that prior auth for a search whould come fro someone entirely neutral and
impartial
 person issuing warrant cannot be partially in an investigative role as well (as was the case with the Trade Practices Commission in Hunter)

15
  Someone must be responsible for the execution of the warrant – risks being called a “fishing licence” if it does not designate a person
responsible and a time frame for conducting the search
 Hunter: Justice must be satisfied of more than a possibiltiy that evidence will be found – cant have intrusions based on mere suspicion.
(the justice must be given facts that show the basis for the PO's belief
 -Other than innocence at stake exceoption – no need to id the informant for a warrant – affidavit tha accompanies the application for one
can contain hearsay and need not be admissable in court
 warrant based on info that was obtained in viol of Charter will be quashe
 Kokesch – search of exterior of residence – police obtained search warrant on basis of what they observed on the property – and it was later
quashed – because no reasonable grounds to inspect the premises in the first place - Led to evidence obtained being excluded
 Note : not automatic – viol of s8 is a factor to consider under s24(2) exclusion is discretionary
- If police knock on door to see if they can smell MaryJ then their behaviour = warrantless search
- If they knock on door for some other legitimate reason = not a search and if they smell Mary J after that – no Charter violation -
entitled to a valid warrant to search.
- Because homeowners can be assumed to have issued an implied general invitation to anyone to knock on their door.
- If warrant based on partly illegally obtained info then reviewing court reqd to ask:
- Would the untainted evidence, on its own, have justified issuing the warrant? and either quash or uphold it.

s487(1) - 4 categories of things that can be searched

- Warrant can be issued by justice satisfied (by evidence on oath) there are reasonable grounds to believe any of the following is in a
building, receptacle or place:
- anything on or in respect of which offence committed
- anything that will provide evidence of offence or location of suspect
- anything reasonably believed to be intended for use to commit an offence (*for which person could be arrested w/o warrant)
- offence related property (def in s2 : property that has / will be used in committing an indictable offence)

-->broad but not unltd purposes for a search

-limited to physical items – ie not bank accounts

-must specify in advance: with some precision, what evidence will be found

eg. warrant issued for publication “x” and “other obscene materials”, quashed w/ respect to all but the one named.

how specific: enough so that person being searched is sufficiently informed of reason for the search.

s489 – allows PO to seize evidence not named in warrant discovered during the search

Sealing Orders

- once items seized = public info unless an applicant can demonstrate that public access would subvert the ends of justice.
- s488 warrant to be executed by day unless reasonable grounds for executing by night(and warrant authorizes that)

Person - DNA Warrants

- -warrants can be issued to obtain hair, buccal swabs, blood samples from a suspect
- greater protections for privacy because these searches directly affect bodily integrity

Basic Requirements:

information on oath that -

1. bodily substance connected w/offence has been found (in any place associated w/ the commission of the offence); and

2. that DNA analysis will provide evidence whether it was from the person

+Conditions may be imposed to make the taking of a sampe reasonable

16
-DNA warrants only avail for offences listed s487.04 (basically sexual offences and offences causing bodily harm) + must be in best interests of
justice to issue the warrant (as with video surv warrants)

- PO must advise accused of contents of warrant, method, and purpose for taking the sample, and advise of right to use force
- note it is an offence to use the sample taken for any purpose other than – investig of designated offence meeting the warrant reqt.

PO must destroy DNA sample :

-if analysis shows sample is not from the person; or

-person is acquitted or no new proceedings commenced after discharge during PI for more than one year

-The DNA databank was held not to violate the Charter bc offenders convicted of the crimes to which it applies have a lower expectation of privacy –
and it is an important tool for law enforcement – as well the safeguards in place such as that it be used for identification purposes only.

Misc. search provisions -

s256 – blood sample from person suspected of driving while impaired

- wiretaps – very intrusive – special provisions

- cp tracking devices or number recorders (numbers to and from telephone calls are being made)– only need suspicion that offence
might be committed
- these warrants exp after 60 days
- nature of things beig searched for also significant
- s164 – special powers for seizure of obscene materials, crime comics, child pornography
- preventive concerns motivate separate warrant provisions for : gaming houses, hate propaganda, valuable minerals, Drugs, and
explosives
- In Hurrell - Ont Cof A struck down s117.04 for failure to comply w/ Hunter v Southam
- allows PO to obt warrant for seizure of weapon where not safe for person to have it
- too sweeping to be saved under s1 because it req the justice to be satisfied person shouldnt have the weapon – but does not req the
justice to be satisfied he in fact does have it.

Reviewing Warrant

- cannot appeal issue of warrant

- usu best to challenge it at trial –
- central issue will be whether reqts have been met:
- eg. sufft descr of premises / suspect
- not to determine whether should have been issued but whether decision to issue it could be made based on the evidence.
- result of search not relevant to this question...

Evidence used to justify the warrat will be excluded if:

- PO knew it wasnt true

- it was illegally obtained (throguh breach of Charter)
- -misleading

As a result warrant can be quashed where either:

-inadequacy of evidence to support its issue OR

-behaviour of PO – itentionally mislead or subvert process of justice

If warrant is quashed = becomes a warantless search ...

24 Warrantless Search

17
 - Per Hunter – is prima facie unreasonable under s8 of the Charter
- To mae it legal ... R v Collins sets out min reqt to meet s8 standards:

1. But first is there a reasonable expectation of privacy (so as to invoke s8)?

- privacy is the basic startig point: the level that can be expected (ot the level that can actually be achieved (R v Wong))
- smthg stolen – can still expect privacy although prob wont have it anymore – but if smthg abandoned can no longer expect privacy
- greater state interest can also lower the expect of pri -eg. school locker where auth need to make sure school is a safe environment
- cant object to invasion of s/o else's privacy

R v Edwards Test:

- Factors to determine Reas Expectn of Priv:

- totality of the circumstances
- presence at time of search
- possession or control of property or place searched
- historical use of the property
- ownership of the property
- ability to regulate access incl right to excl/admit others from the place
- subjective expectation (accused himself had)
- objective reasonableness of that expectations (would a reasonable person have the same expectation)

3 types of interest:

- Personal (strip search, etc); Territorial (house, car. etc); and Informational (R v Tessling – not limited to intimate details)
- Sometimes courts will find that an informational search is no search at all - the info doesnt meet the threshold of being private enough
- when a search is cast as “informational” it lowers the threshold for REofP and may retrict application of s8.

Coughlan: worrisome that lower courts have started assessing searches expost facto – avoiding set rules to provide guidance for legal searches. Thus
in R v Rajaratnam – PO usig sense of smell to deliberately try to detect an incriminating odour on someone – found not to be a search – BUT
directly contradicts R v Evans where SCC ruling on “olfactory searches” (if not intentionally going there to conduct one then ok, but otherwsie =
intrusion on privacy)

- Court ignoring preset rules in favour of “totality of circumstances approach” (which really only applied to a territorial search, Edwards)
- Note: REofP also plays a role at s24(2) remedy stage – ie whether to exclude evidence as a result of the breach

2. Then, are the Collins Criteria met:

Once REofP established, was the search itself reasonable?

3 steps:

1. Is the (warrantless) search authorized by law?

2. Is the law itself reasonable?
3. Is the manner in which the search is carried out reasonable?

1. Is the (warrantless) search authorized by law?

-statute / CL / consent

Statute:

- CC; and CDSA

- usu where it can be said state interest takes priority over individ interest
- CC s487 general warrants do not permit search of person, during execution of warrant for search of a place –
- cp s11(5) of the CDSA permits search of persons reasonably believed to have the substance on them during exdec of a warrant to search a
place
- -CDSA s11(7) permit warrantless search where grounds to obt warrant exist but exigent circumstances make it impracticable

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CC s487.11 (warrant not necessary – where exigent circumstances make it impracticable); and ss 117.02 (weapons reasonably believed to have been
used in offence or are being used) and 117.04 (circustances exist to obt warrant to seize weapons becua of safety to person – but by reason of possible
danger to them or to anyone else it would not be practicable to obtain a warrant)

-”exigent circumstances” = iminent danger of loss, removal, destruction of evidence (Grant (1993))

also – CC – seizure of weapon if no llicence can be produced, seizure of cock from a cockpit, seizure of counterfeit money

Common Law:

- no CL power to search property (except incident to arrest)

- usu applies to searches of the person – and these are usually assessed after the fact

a) Search Incident to Arrest

- Cloutier v Langlois – held to be consistent w/Charter if properly delimited power. And that it could extend beyod the person to the
surrounding area (ie building/vehicle person is in at time of arrest) Note: when it comes to a person's home – the search cannot be done to
obtain evidence, but only for safety reasons/exceptional circumstances (R v Golub).
- Applies to validly arrested person - Not because of a reduced Expec of Priv but because of need for police to exert control over persons in
their custody

Time of search – can be before arrest – but the grounds for arrest must be present first.

- I.e. turning up evidence that leads to arrest cannot then justify that initial search.
- There is no rule as to how long after the arrest the search takes place either – it can be a vehicle search up to 6 hours later, depending on the
circumstances – but what matters is the motivation for the search.

Stillman Test: Was there a power of search incident to the arrest? :

1.Was the arrest lawful?

2.Was the search truly “incidental” to the arrest?* <-- usu the issue for dispute

3.Was the search conducted in a reasonable manner?

*Note: Must be both an objectively valid purpose and PO must subjectively decide to conduct the search for that purpose (Caslake)

- Truly Incidental = done to achieve some valid purpose connected to the arrest
- -if done for intimidation/pressure = not valid
- -policy to search everyone arrested = not valid

Caslake - Valid Purposes =

1-ensuring safety of the PO and others

2-preventing destruction of evidence

3-discovering evidence* that may be used at trial

- *prob only in case of vehicle,etc and not bodily samples, Stillman – taking teeth imprints / hair samples not justified as an “incident of
arrest” because not likely those things would change over time
- if more than just safety reasons (ie discovering evidence) there must be some prospect of finding evidence relevant to arrest made (not just
to any offence)
- person arrested for traffic violation – search of trunk not “truly incidental” (once PO has secured own safety)

Strip Searches --> higher REofP --> requires compelling reasons for conducting the search in the particular circumstances.

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 b) Search during investigative detention

- created in R v Mann
- -w/ investigative detention – grounds for arrest (which justify the “incidental to arrest” powr) are missing – therefore independent
reasonable grounds are required to justify the search
- can only be done out of concern for safety of PO/public

-must be done in a reasonable manner = pat down of accused – pat down must give grounds for going further, eg. reaching into a pocket

R v Mann – PO stopped M in connection with break and enter after midnight – pat down revealed “soething soft” --> therefore not grounds to go
furhther – Court found this to be a breach of s8 and excluded the evidence under s24(2)

c) Exigent Circumstances

-does not justify the search – only that it was warrantless

-also requires independent grounds for search

exigent circumstances = imminent danger of loss, removal, destruction if search and seizure is delayed (R v Grant (1993))

-case by case assessment (warrantless searches for cars put forth as a category but court refused to create a blanket exception- Grant (1993))

Strip Searches --> should always be done at station but can take place elsewhere in exigent circumstances

-and where search is held to be illegal - “exig circumst” may mean it was not as serious a violation

d) Authorization by Consent

Need to ask:

1. Was the consent valid?

2. What was the extent of the consent?
Dedman – intimidating nature of police action and uncertainty as to their powers – compliance cannot be regarded as voluntary – obeying a signal to
stop should not be taken as waiver of rights or supplying otherwise lacking authority for the stop

Warrantless search (w/o reasonable grounds) = prima facie unreasonable

Consent to it = waiver of Charter rights – therefore the standard is set high

Accused must have “sufficient available info to make the choice meaningful” (R v Borden)

Criteria for valid consent – R v Wills:

1)express or implied consent

2)consenting person has authority to give the consent

3)consent is voluntary – not the result of police oppression/coercion/other external conduct that effectively took away the choice

4)consenting person aware of the nature of the PO conduct they are being asked to consent to; and

5)consenting person aware of the consequences of giving that consent

-failure to inform a person of the right to refuse will likely make search involuntary

-when search by consent – PO reqd to suspend the search until suspect contacts counsel

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 - R v Borden – investig accused for 2 assaults - DNA sample left at scene of one offence not the other – accused arrested for 2 nd offence –
PO asked for hair and blood samples - but true motive was to analyze it in relation to 1 st offence – they did not disclose that to him but
consent form used the word “investigations”. Court held that B did not in fact consent to said use of the samples. There was no stat/CL
auth for the police to use them either – so s8 right was violated.

position modified in R v Arp – accused consented to provide hair samples – muder investigation – PO adivsed any evidence arising from samples
could be used against him – discharged at PI for that offence – 3 yrs later inestigated for 2 nd murder – PO used warrant to obt hair samples and DNA
teesting linked him to 2nd murder. Court held – no restriction on how evid could be used if consenting person nor PO placed such limits on it.

Rule for DNA obtained by consent = PO must disclose any specific uses they intend at the time they take the sample but (per R v Arp) if further
possible uses arise later there is no bar to using the sample.

Note: even if consent is not valid – fact that PO thought accused consented may be considered at s24(2) stage so as to reduce seriousness of the s8
breach.

2. Is the law itself reasonable?

- Courts tend to read down statutory warrantless search powers to be in line w/constitutional standards
- (eg. Grant [1993] – court read down s10 NCA to require “exigent circumstances” for warrantless search)
- -this question is already answered above at step 1. because the law will not be said to not violate charter if it is an unreasonable one – if the
law auth a search then it must be reasonable and if read down to conform w/ the Charter then it must be reasonable – or else the answer to
the above question was “no” and there was no need to proceed further.

3. Is the manner in which the search is carried out reasonable?

Even ir authorized search can be carried out ina way that is not reasonable.

 R v Collins – Officer grabbed accused by throat at start of search = unreasonable.

-general rule: the more invasive the search the higher the reasonableness threshold for the manner in which it is carried out

- R v Thomson – wiretap allowed monitoring of phone lines including third party and public pay phones – no limits on wiretap warrant –
and POs would sometimes leave wiretap recording at a payphone in hopes accused would use it too, given how invasive a wiretap is – the
lack of restrained created a potential for the warrant to be carried out unreasonably
- but note: 3rd party rights prob only a factor where there is a massive invasion of privacy.
- note “manner” refers to way the warrant is physically carried out – in Debot – the fact that there was also a violation of s10(b) during the
search was not relevant to the “manner” of the search.
- Be mindful of whether it is under a regulatory scheme – such searches may not comply with Hunter and still be reasonable under s8 (eg
surprise food inspetion under FDA)
- (But this will not render the evidence automatically admissible in unrelated criminal proceeddings – Colarusso) p111

Other Investigative Powers

- Wong – is the case that gave rise to s487.01 CC – ironically disapproving of unrestarined govt surveillance of members of society – the
Court had refused to shape extended powers to cover new ivnestigative techniques that were not auth by statute – so by s487.01 the govt
basically provides for the ability to authorize “anything”.

s487.01

- does not incl body searches

- unlike 487 this provision allows for warrants for offences that “will” be committed, not just ones that have been committed
- Restrictions:
-can only be issued by judge or justice, not a JP
-judge ca attach conditions
-judge has to think its best interests of admin of justice (same goes for wiretaps s186)

-487.01(4) req that when used where susp has REofP that conditions be placed to respect that privacy as much as possible

-videotaping can only be used where other techiques have failed or are doubtful to succeed

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Buhay – where police suspect s/o bt have no legal way to obtain evidence – they have to leave the suspect alone

24 Powers of Detention

“detention” includes:

- when PO has legal power to compel person to remain

- “psychological detention” when no such legal power but person complies (R v Thomsen)
- roadside brethalyzer
- breathalyzer at accused's home after being questioned w/o being detained
- situations where not physically restrained
- voluntary stop on roadside upon reques

Charter right on detention to protect detainee from self-incrimination

that having a lawyer present/being afforded the opportunity to contact one “would not have made much difference” does not affect that s10(b) right,
and does not affect the s24(2) possibility of excluding the evidence.

 R v HCR – youths stopped in street – not “detained” = because of testimony by PO that they would have been allowed to leave if they
refused to give their names.
 R v Manninen – answering question = not a waiver of right to counsel

Common Law Powers of Detention

-Waterfield Test increasingly used to create new CL PO powers

Waterfield Test:

1. Does the PO conduct fall w/in the general scope of any duty imposed by statute or recognized at CL?
2. Does the conduct, although w/in the general scope, involve an unjustifiable use of PO powers?

Eg. R v Dedman - R.I.D.E. program stops were not auth by statute Court applied Waterfield:

1. preventing crime and protecting life and property = w/in scope of duties if POs
2. given: seriousnoess of problem of DUIs; need for deterence; fact that driving is a licensed activity; and short duration of stop as well as
minimal incovenience = conduct of random stops was not unreasonable.
Conclusion : PO authorized at CL to make the stops.

-random stops (Dedmman) or under statutory scheme (Ladoucer) do not violate the Charter

-if power to stop is in absolute discretion of PO – then viol s9 right against arb detention – however these can be justified under s1 based on concerns
about highway safety

-detention will not be arbitrary per s9 if based on criteria that are reasonable and can be clearly expressed. (R v Wilson).

-a stop will be arb detention per s9, if based on neutral and unreliable factors or inappropriate considerations (R v Calderon – presence of cell
phones, pager, fast food wrappers and dufflebags – and inap to consider that they didnt look like they could afford that car)

-sometimes POs may make a stop based on race of the accused = s9 violation (racial profiling) – this usu not proven by direct evidence but will have
to be inferred (R v Brown).

Investigative Detention

Mann – POs have power to stop a person to investigate (even if no reasonable grounds to arrest) as long as they have 'reasonable grounds to detain'

-this power is susceptible to misuse

note: PO must be suspicious of a partic person in relation to a partic crime they already know of

 court must perform case by case analysis of the decision to detain – it must be justified in the circumstances
 -s10(a) applies – requiring that person be informed of reason for detention
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  but no ruling on whether it gives rise to s10(b) right to counsel
 finding a CL power to arrest short of detention dramatically weakens the protection against arb detention in s9
 R v Suberu – accused in investig detention made incriminating statements – was not advised of right to counsel – also evidence found by
PO before s10(b) rights given. SCC held that while S was momentarily detained not phys/psych restrained so as to = “detention” under the
Charter.
 R v Clayton – PO received a report of men w/ guns and set up a roadblock to stop all vehicles leaving the parking lot whether they
matched the vehicle or not

Clayton and Farmer found to have handguns. Issue: was there a violation of s9? Court held not if police acted legally – so was roadblock authorized?
No statutory power – so it would have to come from CL. Majority Court applied Waterfield Test: 1) police acting in general course of their duties
(hardly ever the point at issue) and 2) (should be:) the actions taken not unjustifiable use of powers associated with those duties – but the court
reduced the 2nd limb to: whether in the totality of the circumstances the detention of a partic individ is “reasonably necessary”

24 - Ability for POs to Break the Law

-ss25.1-4 CC – protect officers from liability in partic situations

2 conditions:

1. PO is investigating an offence
2. PO believes on reasonable grounds that the act is reasonable and proportional in the circumstances
-does not cover (25.2(11)):

causing death/bodily harm;

obstruct justice;

or sexual offences

-must be designated by a minister resp for police for this section to apply

-can be designated on emergency basis in exigent circumstances for a max period of 48hrs

-25.1(9) – loss/serious damage to property – must be auth in writing by snr official and only where it is nec to: preserve life or safety; prevent
compromise of PO identity/ confidential informant/ or other person acting covertly; or prevent imminent loss/destr of evidence of an indictable
offence

Jurisdiction Over the Accused

 s470 – court has jurisdiction where:

 person is w/in the territorial limits of court's jurisdiction or
 accused otherwise lawfully ordered to appear before the court
 s485 – secures jurisdiction in face of court error / failure to comply w/CC

Courts have no jurisdiction over:

 persons under 12
 persons who have immunity (eg diplomats)

Jurisdiction in Time

indictable offences - no period of limitation

summary conviction - 6 months from completion of offence

criminal offences not retrospective – must be a crime at time of offence (s11(g) Charter)

R v Finta – made an exceptionfor war crimes on basis that they were crimes in intl law at the time.

-unreasonable delay = breach of s11(b) Charter – and remedy is stay of proceedings

(no remedy if accused it the one responsible for the delay)

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note: R v Morin – SCC held accused had to est actual prejudice arose from delay

25 Arrest

Part XVI CC – Compelling Appearance

 incl: 2 methods other than arrest - “summons” and “appearance notice”

 desire to balance crime control w/ due process interests
 compelling appearance must be sanctioned by judicial officer
 4 scenarios: (least to most intrusive)

1. PO demonstr to JP that reasonable grounds to believe person committed a crime – obtain summons to appear
2. Encounter accused on street and issue appearance notice, subsequently cofirmed by JP
3. Arrest w/ a warrant
4. Arrest w/o a warrant
Arrest = words of arrest + touching w/view to detain (or submission by accused)

Arrest w/ Warrant

 to obtain a warrant = information setting out reasonable grounds to believe person commited an offence must be laid before justice
(s504 – rule for indictable offences
 s795 – summary offences)
 summons must be issued unless on reasoable grounds warrant is necessary in public interest
 warrant from justice or povl court judge can be executed anywhere in province
 in fresh pursuit – warrant can be executed anywhere in Canad
 arrest warrants – no expiry – remain in force until executed
 s29-PO must give notice to arrested person of:
process or warant under which arrested and -reason for the arrest

Arrest w/o Warrant

 ss 494, 495
 s494(1) – arrest powers for anyone
 494(2) – special arrest powrs for property owners
 495(1) – arrest powers for POs only
*term “indictable offence” will incl hybrid offences
*term “criminal offence” will incl summary offences
*”finds committing” requires person arresting to actually witness the offence “apparently” being committed (acquittal does not invalidate
the arrest)
“reasonable grounds to believe” = person arresting subjectively believes person committed the offence and it the belief is objectively
justifiable
-more than mere suspicion is necessary – but not a prima facie case
 note however police cannnot arrest simply to be able to investigate(but can continue to investigate after arrest made)

s494(1)

 given to anyone
 most limited powers of arrest
 can be used when either:
a) person finds another person committing an indictable offence; or
b) person believes another committed an offence and is attempting to escape from person who has auth to arrest them

s494(2)

 -property owners can arrest for any criminal offence (incl summary) being committed in relation to their property
 must deliver arrested person “forthwith” = as soon as reasonably practicable underthe circumstances (R v Cunnigham)

s495

 POs only – much more broad

24
power to arrest in any situation except:

1. accused was not caught comitting the offence, it is only summary, and no warrant has been issued; or
2. officer believes a summary conviction offence is about to be committed

Other Arrest Powers:

 s199(2) -person found keeping common gaming house

 s31 – person found in breach of the peace

Supporting Powers

 s25(1) power to use as much force as necessary

 s26 makes PO criminallly resp for use of excessive force
 s25(4) outlines where use of force likely to cause death/bodily harm is permitted
 s28 provides PO not criminally resp for arresting wrong person under warrant – as long as good faith belief that it was the correct person
 s529 – judicial pre-auth reqd to enter a dwelling to effect arrest unless exigent circmstances – but note might be hard to show justification
since s529.5 provides for auth to be obtained by telephone

Hot Pursuit Exception

 R v Feeney – upheld CL exception where PO is in hot pursuit

 “Hot Pursuit” = continuous pursuit done w/ reasonable diligence – so that offence, pursuit and capture form part of single transaction
 -applies to all offences, incl Provl

Rights Arising on Arrest

By Statute

 attempt to restrain / limit coercive PO powers

 eg. 503(4) – PO must release person arrested to prevent commission of offence as soon as threat no longer exists
 s497 calls for release on summons unless certain grounds exist for contd detention
 -if PO doesnot release accused – pursuant to s503, they must be taken before JP who decides whether to release – must occur w/o
unreasonable delay, upper limit being w/in 24 hrs
 unreasonable delay < 24 hrs w/o explanation = illegal (breach of s503 CC) and arbitrary (breach of s9 Charter)
 s25 YCJA – right to counsl on arrest(already provided for by s10(b) Charter) and notice of arrest be given to a parent.
 s146 – right to have parent/lawyer present during questioning – if not afforded this right statements will be inadmissible

By Charter

 s10 rights apply to both arrest and detention – incl:

 10(a) to be promptly informed of reasons for arrest/ detention

 looks at what accused can be expected to have understood (not what was actually said)
 impact of 10(a) reduced in Latimer where PO advised he was being detained for investigation – false explanation since they did not have
the power to do that – but court held that accused would have known seriousness of situ in rel to daughter's death
 Smith 1991 – accused told he was under arrest for shooting incident – but not advised victim had died – Court held waiver fo right to
counsel was valid despite s10 viol
 also a basis to mae 10(b) right to counsel a more meaningful choice – ie accused understands what is at stake
 s10(b) to retain and instruct counsel w/o delay and be informed of that right
 purpose is to allow accused to be informed of their rights ad obligations and obtain advice on exercising them
 also to safeguard against self incrimination – and exercise their right to silence
note that for s1 analysis to allow a limit of these rights – PO must be authorized by law to so limit the right – an oversight by a PO is not a reaosnble
limit prescribed by law

eg of justification would be roadside breath tests – where limit of right to counsel is prescribed by law

Otherwise PO has certain obligations in relation to s10(b):

25
Informational Duties:

1. Accused must be informed of their s10(b) right w/o delay:

satisfied by reading standard caution – except where language difficulty/ mental disability or genuine inability to comprehend are known
and require furhter explanation

2. Advise of right to Legal Aid if financial circumstances require it and right to immediate legal advice whether they can afford it or not

 violation of s10(b)
 -discouraging comments about obtaining legal counsel
 offering one time plea bargain that expires before counsel can be contacted
 these rights must be obseved whether accused expresses desire to see counsel or not

Implementation Duties:

1. Reasonable opportunity for accused to spea to counsel ust be provided where they express the desire to do so

 only emergencies allow for postponing this duty

 R v Manninen – accused arrested at office – should have been allowed to use that phone -instead of being made to wait until he got to the
station to contact counsel – no reqt that accused asks to use the phone – up to PO to offer them the opportunity as soon as it is avail

2. Hold off from further questionning once accused chooses to contact counsel until accused has had the opportunity to do so

 -R v Manninen – s10(b) viol when PO continued questioning accused after desire expressed to contact counsel
 R v Ross – accused cold not reach counsel, it being 2am and was put in ID Lineup – Court held there was no urgency or compelling reason
to not wait until counsel was reached
 these duties only arise where right to counsel has not been waivey
 they can be waived explicitly – declining to contact counsel
 or implicitly – very high standard – waiver must be clear and unequivocal
 cooperating with the investigation by answering q's or particip in lineup = not a waiver
 these duties can be lost – where accused not duly diligent in attempt to contact counsel – note: right to counsel still there – but PO is then
able to continue the investigation prior to contact w/counsel being made
 or they are purposely trying to obstruct the investigation (eg R Tremblay – stalling a breathalyzer test)
 once accused does speak with counsel PO are allowed to continue asking them questions – even if they have chosen to remain silent

Compelling Appearance w/o Arrest

 preference is given to not arresting (as indicated by 495(2))

Pre-Charge:

 if PO chooses not to arrest s496 auth issuance of appearance notice – person mut be advised that failure to appear is an offence (under
s145 CC
 -arrested person can also be released on “promise to appear” form 10; or
 recognizance, Form 11, is a debt under $500 undertaken to be incurred should person fail to appear
 before the first appearnace justice must be given an information which supports the notice to appear- if not satisfied there are reasoable
grounds that offence committed he will cancel the process
 once appearance notice has been given PO must lay a charge as soon as practicable and before the time and date on which person due to
appear – otherwise the process lapses and person cannot be charged with failure to appear
 if they do appear court may assume jurisdiction over them anyway
 if charge not laid in time – new information can be laid to compel appearance

Post-Charge:

 in cases where PO was present at commission of crime for example, a justice will review the charge after the fact
 otherwise the police should 1. investigate 2. decide who they believe is guilty and then 3. lay charge before justice to compel appearance
26
  in cases where charge laid first – justice issues warrant or summons = issued by court and contains particulars of charge, Form 6
 must be served in person or left w/ an adult at last known address
 s499 gives officer in charge of person arrested under warrant the auth to add conditons on release incl that the person abstain from use of
drugs/alcohol, or go to specified places
 person can apply to have the conditions modified

Judicial Interim Release

 presumption that accused should be released pending trial with as few restrictions as possible. Crown must justify ea step toward more
intrusiveness (ie conditions/detention)
 once brought to a JP, they can adjourn bail hearing for up to 3 days w/o consent of accused
 (s516 requires consent of the accused for an adjournment longer than 3 days)
 Bail hearing = show cause hearing --> because accused must be released at bail hearing unless Crown can show cause why more
restrictions are necessary – s515 CC
 conditions applied on release designed to assure attendance at trial
 must be realistic and workable - not setting accused up to fail (R v Thomson)

 cotinued detention can only be ordered where:

1. necessary to ensure attendance in court

2. necessaty for the protection or safety of the public
3. necessary to maintain confidence in the admin of justice- incl: apparnet strength of case, nature of offence, circumstances surrounding its
commission (incl use of firearm) and potential for lengthy term of imprisonment (in case of firearm, 3yrs+) see R v Hall

 R v Hall – the 3rd ground should be used sparingly – and rarely if ever should it stand alone to justify contd detention

3rd criteria used to read: “on any other just cause being shown” - SCC held that was unconstl because too vague

-if Crown shows cause for contd detention -JP must attach reasons

-show cause onus reversed for offences listed in s515(6) :

 not resident in Can

 allegedly committed offence while on bail
 organized crime/terrorism/natl sec offences
 relates to failure to attend court previously
 offence is punishable by ife imprisonment under CDSA

-no discretion to release the accused for s469 offences – s515(11) – and accused must be taken before sup crt judge to est that he/she should be
released

 most comonly – murder

 -bail decisions can be reviewed to make adjustments, etc. but must wait 30 days after each review to bring another one
 if trial has not commenced w/in specified time accused entitled to automatic review, s525
 s518 – sets out evidence rules for bail hearing – JP can base decision on evidence they consider trustworthy or credible in the circumstances
of each case
 not an interrogation in relation to the offence – although Crown may adduce evidence to est probability of conviction
 if accused violates condition of release – they can be arrested w/ or w/o warrant, s524

Disclosure

 remember the question is whether the right to make full answer and defence is impaired (Stinchcombe)
 R v Stinchcombe - while disclosure may allow an accused to tailor their defence, to anticipate the Crown's case – nonetheless fairness to
the accused requires them to see the evidence in advance (Court noted the different roles of Crown and Defendant and what each required
to prove)
 and while Crown may need to continue investigating – they have theiberty of waiting to lay charges until they are ready – so once that is
done thy should be ready to make full disclosure as well
 both inculpatory and exculpatory evidence must be disclosed

27
  disclosure to be made before plea / mode of trial selected
 incl all witness stmnts whether Crown intends to call them or not (and whether or not “reliable”)

-duty to disclose triggered when --> there is a reasonable possibility the information would be useful to the accused in making full answer
and defence

 Crown's obligation to disclose includes the police (R v McNeil)

 disclosure is a continuing obligation
 defence has continuing obligation to seek disclosure
 But what is being remedied? - either 1. the Crown's non-disclosure; or 2. the failure to allow a full answer and defence
 (if its 1 – the threshold is lower – no prejudice needs to be shown)
 (if its 2 – the effect on the accused's ablity to prov full answer and def needs to be shown)

Remedy for Non-Disclosure

 R v Carosella - accused charged w/ gross indecency – compl had visited rape crisis centre and was interviewd by case worker before
contacting PO – centre destroyed all notes before PO involvement
 -Court held : breach of the obligation to disclose = breach of constit rights of th accused – no need to show prejudice – the breach
itself iis prejudicial.
 -Court also held that a stay of proceedings should only be granted in the clearest of cases:

1) where the prejudice to the accused cannot be remedied; or

2) there would be irreparable prejudice to the integrity of the justice system if prosecution continued

In this case both tests were met:

1) the evidence destroyed would have more than likely assisted the accused in his defence, and there was no aternative remedy to cure that
prejudice
2) deliberate decision of an agency that receives govt funds to destroy documents (in an effort to defeat the processes of the court)
Remedy for Failure of Full Answer and Defence

 La – PO tape recorded interview w/ compl prior to charges being laid – tape was lost before trial – PO admitted complainant had told some
lies on the tape
 Court held : s7 right wasnt violated at all – where Crown can show that evidence not lost due to unacceptable negligence, then there is no
breach of the duty of disclosure
BUT the accused's right to full answer and defence may still be breached
-depends on whether he can establish actual prejudice

 In this case, the evidence did meet the standard for disclosure in Stinchcombe – (ie that it should be disclosed) but was not enough to
establish a serious impairment to the accused's right to full answer and defence (ie actual prejudice from the non disclosure)
 R v Dixon – involved failure to dsiclose that became apparent onlyafter trial was concluded- there the court held : right to disclosure isi
onlyone aspect of the right to full a&d and if violated may not necessarily equate to impairment of full a&d

New Approach to non disclosure:

1. Was the accused's right to disclosure breached? (Stinchcombe)

2. If so, did the breach violate the accuseds right to make full a&d?
Did it affect either:

a) the outcome of the trial ; or

b) the overall fairness of the trial?*
3. If so, what remedy should be granted?

* To answer this question i the positive you need either: 1. a reasonable possibility the evid would have affected the decision to convict; or 2.
reasonable possibilty of further lines of inquiry would have come up if evid disclosed

Privileged Information

Informer Privilege

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-identity oif informers = highes level of protection – for their safety and to maintain this investigative method

“innocence at stake exception” = identifying info will only be revealed where the informer:

 is a material witness to the crime

 acted as an agent provocateur
 planted the material found under a search warrant
otherwise the tipsheet from an informer must only be edited and disclosed if the accused can establish that w/o disclosure their innocence is at stake

Note : Crown still has the option of staying the proceedigns rather than making the disclosure

Solictor-Client Privilege

-principle of fundamental justice – but so is right to full a&d

McClure – the obligation to disclose material otherwise protected under sol-client priv also arises depends on the innocence at stake exception

McClure Test:

1.Threshold Test

a)the information sought is not avail from any other non-priv source

b)the accused is otherwise unable to raise a reasonable doubt

2.Innocence at Stake Test

Stage 1)accused must demonstrate comunication exists which could raise a reas doubt

Stage 2)judge should then examine the communication to see if that is the case

note : McClure application = should be a last resort

solicitor's file must be the only way for the accused to prove his/her innocence

Counselling Records

 psychiatric / medical / other counselling records

 case by case privilege (not blanket priv like the above 2)
 governed by s278.1

Materials in hands of Crown – dealt w/ under Stinchcombe disclosure rules

records in hands of 3rd party (sexual offences) – apply statutory scheme under s278.1-.91

records in hands of 3rd party not falling under s278.1 – O'Connor rules apply

 s278.2(2) makes the scheme applicable to records in hands of the Crown (that otherwise would fall under Stinchcombe
 -production of record must be in interests of justice
 R v Mills read down s278.1: only records listed there in which there is also a REofP come w/in the scheme
 records come into hands of Crown priv extends to them unless compl waives the priv by: expressly after being fully informed OR by
voluntarily providing the records to the Crown

Preliminary Inquiries

 indictable offences only

 -accused / prosec can request PI
 can be bipassed under s577 - where A-G decides to proceed by way of direct indictmen
 -screening mechanism

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  -usu accused is committed to trial
 no Charter remedies avail at PI
 if not specifically requested by accused (or Crown) the accused goes directly to stand trial
 no longer an assessment of case as a whole – now the issues/wintesses that will be addressed must be stipin advance
 these changes were justified by the current (Charter) reqt for extensive disclosure by Crown prior to accused entering their plea
 new PI format is to allow certain aspects of the evidence to be tested in preparation for trial

Jurisdiction

 the only powers that a justice (or prov judge) can exercise in PI are statutory ones – or those implicit in the statute – because there is no
inherent jursid over PI's (they are creatures of statute)
 justice can regulate the PI as appropriate and even cajole the parties to narrow the issues or do so herself

Commencement

 judge cant conduct PI and trial at same time – nor can one accused be in a PI while the co-accused is at trial at the same time
 first appearance = arraignment (charges read to the accused); accused submits to jurisd of court; and elects mode of trial
 once evidence is adduced before a judge – that must be the judge that sees the PI through

Scope

 not limited to offences charged on the information – but can give rise to other offences that are disclosed by the evidence (in same
transaction) – not limited to lesser/included offences
 judge can commit accused to trial on all of them
 no power to order production of 3 rd party records at PI – butcan alow the accused to cross the compl laying the foundation for an
application for disclosure at trial
 same goes for possible Charter motion at trial
 the only basis for challenging the information would be that it fails to charge an indictable offence
 also no auth to decide whether information properly sworn; or any special pleas based on double jeopardy

but s601 gives judge broad powers to amend the charges at the PI

therefore not likely that a challenge to quash an information at PI can ever succeed – so long as the probem can be corrected by amendment

Multiple Accused / Counts

 no power to order severance of accused or counts at PI

 if one accused requests P they all get one

Presence of the Accused

 -accused entitled to be present

 if accused absconds during PI = waiver of right to be present s544
 -counsel can continue on accused's behalf
 -justice entitled to draw adverse inference

Constitutional Issues

-court conducting PI = not a court of “competent jurisd” for Charter purposes (per Mills, Hynes)

-if consti remedy being sought – has to wait for trial

Evidence

Admissibility

-evid at PI takend under oath and recorded

-rules of evid apply at PI as they would at trial

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  -judge has no auth to call witnesses
 -but can admit evid he/she deems credible even though it would not otherwise be admissible
 per s540(7) – and the question is how far does this exception extend?

Cross-Examination of Prosecution Witnesses

 defence can do this at PI – in relation to any matter that would suggest the Prosec's case is insufft
 and can be done in prep for trial

Address to Accused

 unrepresented accused must be cautioned pursuant to s541(2)

=warning about makig self-incrim statements etc

Defence Evidence

 can be adduced at PI – incl accused testimony – not a trial so discharge is rarely ever based on evidence of the defence
 advantages to calling Crown witnesses – assessinng what evdence they can give in prep for trial

also – s715 CC : if evid was taken on oath at PI and witness now dead or too ill to attend trial or outside Canada – then that evidence can be aduced at
trial – as long as accused had a full opp to cross -examine the witness (not full if info comes avail after the PI -eg. that the witness was getting her
info from psychic visions dicsl after PI, R v Assoun)

Publication Bans

 PI proceedings are open unless basis for exception

 s537(1)(h); and s486 – give judge discretion to excl the public
 accused is usually shielded from adverse publicity before trial – by a pub ban on the PI
 s539 makes a pub ban discretionary if sought by Crown and mandatory if sought by accused
 -ban is in effect until discharge or in case of committal until end of trial

Committal

-s548 – req committal for trial on any indictable offence if the evidence is sufft

and discharge the accused in respect of any charge for which evid not sufft

“sufficient evidence”=Shephard test

USA v Shephard – SCC held the test is: whether a reasonable jury properly instructed could find the charge proved BRD.

Judge will look at completeness and weight:

completeness:

-crown has to lead evidence on all elements of the offence, including identification evidence

eg assault – there should be evidence led that : the accused – intentionally – applied force – to another person – w/o that person's consent

weight:

the Courts have stated it is not the funcion of the judg at the PI to assess the weight of evidence at the PI

eg. should not assess credibility of witnesses

-should not usurp the role of the trial judge / jury (to determine the strength of the case)

(but finding that no reasonable jury prop instr could find the charge proven BRD – may inevitably be an assessment of weight and should result in
discharge

(which would be w/in the role of the PI judge))

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If there is direct evidence on every element – then accused should be committed to stand trial

but if the Crown's case is circumstantial on some of the elements – then the PI judge should undertake a limited weighing of the evidence on the
whole (including any defence evidence) to determine wheher a reasonable trier of fact could return a finding of guilt.

Extradition

USA v Ferras – extended the role of PI judges by saying that if the evidence is so manifestly unreliable that it would be unsafe to rest a verdict on it
– extradition should not be ordered – the court modified Shephard to allow this for extradition hearings.

Outcome:

 Once PI meets test of sufficiency – judge endorses the information so as to indentify the appropriate offences.
 judge is not limited to offences chargeed on the information or to lesser or included offences – but can find there is evidence of any
offence
 -but is limitd to offences occurring w/in same transaction (except summary offences)
 ie offences related to the event or sequence of events that gave rise to the charges
 can even include offences against another victim not identified in original charge (as long as the same set of events)
 discharge = not an acquittal – no grounds for cliaming double jeopardy if charged again
 crown can lay fresh information or proceed by way of direct indictment (be sure to note the reqts)
 discharge = not a final judgment – because tthere is no risk (“jeopardy”) of conviction at PI
 if comitted --> justice must transmit record of PI to trial court – s551
 incl charges (as endorsed) , evidence, exhibits, any statement, made by the accused (after address to the accused), and process papers
relating to compelling appearance of accused

Review of PI Decision

 -tatuitory execise therefore no appeal is possible because no procedures for it are provided by CC
 only course would be certiorari
 under certiorari review – not sufficient to show error of law – certiorari will only be granted for jurisdictional error :
 evidence issues = not jurisictional, unless they rise to level of a denial of natural justice
 -failure to comply w/ mandatory provision of code = jurisdictional error

-s548 – which requires justice to commit if sufficient evidence = jurisdictional error ifjustice commits on insufficient evidence (ie if there is no basis
in the evidence that supports the decision to commit)

-where Crown indicates evidence led through PI witness will not be led at trial – justice at PI must consider it anyway, otherwise = jurisdictional
error

-also granting discharge w/o considering the whole of the evidence = jurisdictional error because that is what s548 requires them to do

Sazant – judge “there was absolutely no evidence of non cosent” : meanwhile compl had testified that he did not want to participate

So 3 possible types of jurisdictional error occurred:

 misunderstanding the elements of the offence and gave effect to a non existent defence --> translates to failure to apply the Crown's
evidence to the actual elements;
 finding the compl testimony to be ambiguous – either as after the fat regret or during the fact nonconsent --> which would mean he was
deciding an issue reserved for the trial forum; OR
 simply overlooking the evidence of non cosent given in the complainant's testimony --> which amounts to failure to consider “the whole
of the evidence” as required by s548

Selecting Mode of Trial

Road Map of proceedings:

1. s504 – information laid before a justice – alleges commission of an offence

(if summary --> same document used for trial – s788)

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2. s507 – justice decides whether to proceed and whether to issue summons / warrant

3. If arrested, accused attends bail hearing - taken before a judge to decide whether to detain / release – s503, procedures for bail hearing - s515)

4. Once issue of release is dealt with, an Arraignment takes place – accused's initial 1 st court appearance to answer the charge

If hybrid offence – Crown now elects whether to proceed summarily or by indictment

If Summary offence – accused enters plea and is tried on the information as is.

5. If by Indictment, accused elects mode of trial – must be by judge and jury, s471 (unless CC specifies otherwise, or accused elects not to have a jury
(election requires A-G consent for s469 offences))

 If accused refuses to elect – trial is by judge and jury

 If offence listed in 553 – absolute jurisdiction of magistrate – accused cannot elect and is tried in provincial court
 If more than one co-accused and they elect differently from each other – trial will be by judge and jury
 A-G can compel trial by jury eve if accused doesnt want one – if punishable by >5yrs, (s568)

6. If Accused elects trial by Provl Crt – enters plea and trial takes place at any point

-If Accused elects trial by judge / judge and Jury – Plea not yet entered and PI will take place if acc/crown request one, (s535).

-Or If no PI requested – indictment is preferred (laid before trial court) on any charge set out in the information (s574(1.1)) for trial to commence

7. Prov Crt judge can convert trial into a PI where it seems necessary, (s555(1))

Various rights of re-election are set out in s561

Failure to appear w/o reasonable excuse may result in loss of jury trial

8. After PI, accused is either discharged or committed (s548(1))

If comitted – “indictment” (new document) is “preferred” (laid before trial court) – can be for any charge ordered by PI judge or found on the facts at
the PI (s574)

9. Note where Accused discharged on PI – Crown can proceed by way of direct indictment under s577, requires written consent of A-G

10. Also available to Crown to stay proceedings w/ option to recommence them w/in 1 year (s579) – and the power to intervene to take over private
prosecution under s579.01.

Jury Selection

 s471 – indictabl offences to be tried by judge and jury unless otherwise specified
 result is that only a few – eg. muder and treason actually reqd to be tried by jury
 and some cannot be tried by jury – eg. theft under $5000
 note s11(f) Charter guarantees benefit of jury for any offence punishable by more than 5 yrs

Composing an array of Jurors

 s92(14) – jursidcition over admin of justice in the province

 -jury “array” (or “panel”) = larger number of prospective jurrors from which jury selected
 prov/territ legisl governs who can form the array – who is disqualified and compensation – then once array is assemled CC takes over for
selection process
 s626 no juror can be disqualif based on sex
 typically members of public who: i) would face a conflict in serving a jury; or ii) who have a job that is more important to society than
serving on a jury are exempted.

Jury selection under the Code

 can challenge the aray on grounds of partiality or fraud on part of person who assembled them
 s631 - names of those present pulled randomly from a box until there are enough members left after exclusion procedures

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  s644 – allows array to be enlarged if exclusion leaves too few jurors – sheriff simply goes into street and asks members of public to be on
the jury – aka “talesmen”
 s644 allows judge to discharge juror due to illness / other reason – judge can either find replacements form other arrays – or more talesmen
– or judge can have alternate jurors on reserve from the original array
 once evidence is heard cant substitute altrnate jurors – so under s644(2) jury is big enough if no less than 10 members

3 ways a juror from the array may be excluded:

1. Exemption

s632 – exclusion by trial judge – on basis of: personal interest in the matter – relationship w/party/counsel/judge/possible witness – hardship – other
causes (note: “partiality” that is not so obvious should be reserved for exclusion by counsel during challenge for cause – but OntCofA has included it
as potentially coming w/in “other reasons”, R v Krugel)

2. Challenges for Cause

s638 – sets out grounds for challenge fo cause

-both Crown and accused entitled to unltd numer of challenges (on those grounds only)

-incl: convicted of an offence where punishment is more than 12 mos

-s638(1)(f) – contraversial – person is not indifferent btw accused and Queen – ie prejudiced and unlike US, in Canada – every jury panel is
presumed impartial or indifferent and must raise concerns which diplace the presumption inorder to be challenged on this ground

4 types of juror prejudice :

1. Interest Prejudice – juror has direct interest in trial – nnot contraversial (“juror is uncle of accused or wife of a witness”)

2. Specific Prejudice – attitudes or beliefs about the case form media coverage etc

3. Generic Prejudcie – stereotypical attitudes about accused, victims, witnesses or nature of the crime

4. Conformity Prejudice – juror might feel influenced by strong community expectations about the outcome

 first, counsel must have some reason for the challenge – cant be random
 secondly, challenge will most likely be limited to 1 - 2 preset questions – cant grill the juror
 since counsel doesnt know much about the jury - challenges usually agaisnt array as a whole – asking each juror the basic question to
determine if they can be impartial
 but it is difficult to get approval for these challenges – except w/ respect to prejudice against race of the accused
 but the rules will not be relaxed for other types of prejudice -
 R v Find – accused wanted to question the jurors in relation to sexual assaults against children – but the court held that prejudice of that
type could be cured by directions to the jury and that type of bias was not something the court could take notice of

also in R v Spence – accused black and victim East Indian – accused tried to challenge on basis of racial sympathy for victim by jurors who might be
east indian – court refused to notice that type of bias as well – allowing only challenge on grounds of racism against the accused.

When Challenge allowed --> accused decides whether to go first and then crown and accused take turns – the challenge is tried by the 2 most recently
sworn jurors – on bal of prob

-if CC provisions not followed = error that leads to retrial

R v Guerin – judge took over role of counsel to question jurors and decide their impartiality

3.Preemptory Challenge

s634 – limited to:

 20 for each party (1st degree murder, high treason)

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  12 for offences pun by 5yr
 s imprisonment or more
 4 in all other cases
-use of this challenge is unconstrained – ie can be for any reason

if more than one accused each recieves the full number (and the Crown receives the same as all combined)

R v Latimer – Crown and RCMP devised questionnaire for 30 prosepective jurors on religion, abortion, and euthanasia – the Crown did not disclose
the questionnaire or even their direct contact w/ the jurors to the defence - Court held this was flagrant abuse of process and interf w/ admin of
justice warranting a new trial – did not matter whether RCMPs behaviour actually influencdedjury deliberations but whether justice was “seen to be
done”

-representativeness is desirable but not the onlyway to achieve impartiality – and accused cannot insist that jury contains members of their race

R v Butler – succeeded in challenging the array because sheriff commented to his counsel that Indians usu kept out of array because they were
unreliable to attend trial and in Pizzacola – crown admitted creating all-female jury on basis that men more likely to find sexual harrassment
acceptable in workplace

- **without the benefit of these candid statements it is very difficult to est unacceptable motivations for jury selection (eg. Butler – initial challenge
was rejected)

-cant really challenge because there doesnt need to be an explanation or a good reason for dismissing particular jurors

Pre Trial Motions

Timing and Forum

 SCC has held that in relation to s11(b) of the Charter a person is “charged” when an information is sworn or a direct indictment is laid.
 And the time of “commencement” of a jury trial depends on what section of the Code is being considered and what interests are at stake.

eg.

-accused right to be present at trial -->jury selection is part of the trial

-in relation to power to replace a juror --> trial does not start until accused is place in the charge of jury

pre-trial motions -->

 only the trial judge should hear applications to sever counts

 only the trial judge has jurisdiction to issue severance orders
 as long as trial date assigned no need to wait until trial date to bring a motion
 s645(5) auth trial judge, before jury selection, to deal w/ any matter that would be heard in the jury's absence
 some matters can be dealt w/ by the PI judge (like exclusion of evidence) but some cant (like Charter applications)

Pre-Hearing Conference:

 unlike a pre-trial motion no binding decisions are made

 matters can also be discussed at a pre-hearing conference, s 625.1 to consider matters that would be better decided before the proceedings
start
 mandatory for jury trials 625.1(2)
 done to see if there can be agreement on certain issues to expedite the trial
 judge gets opportunity to see what will be contentious/at issue
 parties can change strategy after the conference but not so as to prejudice the accused who placed reliance on for example the crown's
stated intention before deciding whether to have a jury trial. depends on whether a change of strategy takes away accused's right to a fair
trial
 the defence can also change strategy and focus – and any intended action revealed does not constitute an application (eg. saying they will
be applying for youth court transfer – not binding)

Specific Pre-Trial Motions:

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Change of venue

 at CL trials held in area where offence occurred

 judges have jurisdiction throughout province where appointed
 should not hear trials of offences committed entirely in another provinc
 s599 – either defence / crown can apply for change of venue when:
a) where it appears expedient to ends of justice; or
b) competent auth has directed that jury not to be summoned at time appointed in a territorial division where the trial would otherwise by
law be held

 where pre-trial publicity has made it too difficult for an accused to obtain a fair trial w/o a change of venue
 req strong evidence of a genera prejudicial attitude in the community as a whole

- and only where the prejudice cannot be cured through jury selection, instructions to jury,or the rules of eviden

-also relevant – date of media coverage, and possibility that province wide publicity means better off having trial in larger center, rather than moving
it to a smaller one

 R v Eng – court refused change of venue on retrial even though one was granted on original trial – passage of time had mended the
prejudice from media coverage
 -onus on accused to show change is needed if they are the one applying for it

Fitness to Stand Trial

-whether the accused suffers from a mental disorder and thus will be found not criminally responsible under s16 CC

-Part XX.1 deals with:

-either not criminally responsible based on state of mind at time of offence

-fitness provisions – focus on accused's state of mental state at time of trial, and whether fair to proceed

-presumption of fitness to stand trial (s672.22)

s2 CC defines ”unfit to stand trial” =

1. accused suffers from mental disorder; and

2. accused is thereby unable to conduct a defence, or to instruct counsel, and unable on account of the mental disorder to:
1. uderstand the nature of the proceedings;
2. understand the possible consequences; or
3. communicate with counsel
-the standard for whether an accused can communicate w/ counsel is low – all that is necessary is the accused be able to communicate the facts
relating to the offence

(no analytical ability to make the choice to accept counsel's advice etc is reqd)

 court can order fitness hearing on its own motion

 or accused or prosecutor can make an application
 onus is on the party arguing the accused is unfit to prove it on bal of prob

2 stages to fitness hearing :

1. judge decides there are reasonable grounds to decide the issue

2. actual question of fitness is then decided
-s672.11 – court can order assessment

-cant be done in a summary conviction case unless accused raises the issue or prosec shows reasonable grounds to believe the accused is unfit

-For non-jury trials – PI judge can determine whether accused is fit

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-If jury trial and once jury is in charge of accused – jury decides fitness

-if jury not yet given charge – jury must be sworn to decide the fitness issue, though with accused's cosent that they can also hear the trial if one
occurs (s672.26)

-fitness application can be brought any time before verdict

-if hybrid offence judge must postpone fitness hearing until after crown has elected to proceed summarily or by indictment (s672.25)

-if app brought during PI judge may postpone fitness application until after accused has answered the charge (s

-if brought at trial – jufge can postpone until after defence opens its case

Mike

Getting Ready for Trial

26. Disclosure

- R. v. Stinchcombe, [1991] 3 S.C.R. 326

- R. v. McNeil 2009 SCC 3- The 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 that had led to both internal
disciplinary proceedings under the Ontario Police Services Act and to criminal charges.

 The Crown and the police are separate and distinct, the police have a duty to participate in the disclosure process.
 The Crown’s disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its
investigation of the accused.
 Records relating to findings of serious misconduct by police officers involved in the investigation against the accused properly fall within
the scope of the first party disclosure package due to the Crown from police, where the police misconduct is either related to the
investigation, or the finding of misconduct could reasonably impact on the case against the accused.
 Not related to accused - Production of disciplinary records and criminal investigation files in the possession of the police that do not fall
within the scope of this first party disclosure package is governed by the O’Connor regime for third party production.
 In effect, a finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the
investigation against the accused in the hands of the prosecuting Crown under Stinchcombe. It may be useful to pose the question in this
way: If the third party record in question had found its way into the Crown prosecutor’s file, would there be any basis under the
first party Stinchcombe disclosure regime for not disclosing it to the accused? If the answer to that question is no, there can be no
principled reason to arrive at a different outcome on the third party production application.
 The accused’s interest in obtaining disclosure for the purpose of making full answer and defence will, as a general rule, outweigh any
residual privacy interest held by third parties in the material. This is particularly so in respect of criminal investigation files concerning
third party accused.

DISCLOSURE 197-222

Creation of the right- An accused has a right under s.7 Charter to disclosure of the Crown’s case. R v. Stinchcombe [1991]-The Crown must
disclose all relevant information whether inculpatory or exculpatory and may refuse to disclosure privileged/irrelevant information.
Reasoning-This disclosure allows the defence to tailor a defence to anticipate the prosecution’s case.
When- on the request of the accused any time the charge is laid. It ought to be made before an election or plea. Disclosure is to be made before the
accused is called upon to elect his mode of trial for s.536 indictable offences.
Disclosure includes:
 witness statements –whether the Crown intends to call the witness or not.
 Crown should disclose the name, address, and occupation of a witness and any information the prosecution possess concerning the evidence.
 Crown must disclose additional further information it receives and this includes the police as well.
Defence Obligation - R v Dixon [1998 obligation to seek disclosure and is not entitled to assume that it has received all relevant information. -“Call
for the information or live without them”
 The right to disclosure is not absolute- prosecution may need to protect the identify of informers.
 The discretion in regards to timing and manner and man need to complete an investigation.

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Non-disclosure burden - R v Chaplin [1995]- The burden clearly rests with the Crown to justify the non disclosure of the evidence “by
demonstrating either that the information sought is beyond their control or that it is clearly irrelevant or privileged.
How to measure of relevance- R v Egger [1993]-one measure of the relevance of information in the Crown’s hands is its usefulness to the defence:
if it is of some use, it is relevant and should be disclosed.
Calling witnesses- R v Cook [1998]- Crown has no obligation to call a witness in order for all material facts to be brought forward.
Disagreement on disclosure- R v Stinchcombe [1991] trial judge can review the disclosure if defence is unhappy. The onus is on the Crown to
justify an exception to the rule to complete disclosure.
Lost Evidence no disclosure - R v La [1997]- where the Crown can show that the evidence was not lost due to unacceptable negligence then
the duty of disclosure is not breached.
Aware of non-disclosure during the Trial- R v Dixon [1998]- Conflicts with Carosella. Accused knew that evidence wasn’t disclosed during the
trial. (Carosella was after) Held-Although the right to disclosure may be violated, the right to make full answer and defence may not be impaired as a
result of the violation. - “ call for the statements or live without them”
Defence to be successful- Stay of proceedings can be justified on either 2 bases:
i. where the prejudice to the accused cannot be remedied or R v O’ Connor[1995]
ii. where there would be irreparable prejudice to the integrity of the justice system if the prosecution were continued. R v Carosella [1997]

New Test - R v. Talleifer 2003- Infringement of the right to disclosure is not always an infringement of the right to make a full answer and defence.
Accused shows that there was a reasonable possibility that the failure to disclose affected the outcome at trial or the overall fairness of the trial
process.

3 part test for knowledge of non-disclosure After Trial Dixon

1. Was the accused’s right to disclosure breached?
2. Is so, did that breach violate the accused right to make full answer and defence?
The standard that non disclosure affect the outcome of the trial or the overall fairness of the trial process are:
I. a reasonably possibility that the evidence would have affected the decision to convict
II. a reasonably possibility that lines of inquiry would have been available if the evidence had been disclosed.
(The evidence must be looked as a whole and not individually).
Dixon- statements were relvant-but not that significant and would not affect the outcome.
Smith- was reasonable possibility that the statements would have affected the trial.
Tallifer- defence could have used undisclosed evidence to challenge credibility.
3. If so, what remedy should be granted?

Remedy- a stay of proceedings is the appropriate remedy for non-disclosure. (Caselaw is inconsistent )
 R v Carosella [1997]- court had to determine whether the non-production of the notes (complainant went to rape crisis and they shredded notes)
violated the accused’s Charter rights and if it did, whether to a stay was the appropriate remedy.

Disclosure and Privileged Information- Michaud v Quebec (AG) [1996]- “the Crown must justify non-disclosure in circumstances where “the
public interest in non-disclosure outweighs the accused’s interest in disclosure”
 Stinchcombe- the right to disclosure was subject to the rules of privileged. (informer privilege, solicitor-client privilege, privilege in
counselling records)

A. Informer Privilege- Bisaillon v Keable [1983] This privileged is common law rule. The identity of police informers is entitled to the highest
level of protection, not only to protect the individuals concerned but also to preserve the investigative methods.
 Reasoning- Without this privilege- informers would be less likely to report information to police
 Breaking informer privilege- “is the innocence at stake exception”. This is if the evidence establishes a basis for this exception such as that
“the informer is a material witness to the crime, acted as agent provocateur, or planted the material founded under the search warrant.
 unchanged by Stinchcombe- R v Leipert [1997]- held this “ancient and hallowed” common law rule was unchanged by the obligation
established in Stinchcombe.
 R v Leipert [1997]- the privileged extends not only to the name of the informer but to any information that may enable identification.
 Defence needs to show- Only if the accused can establish some basis to conclude that without the disclosure the accused’s innocence is at stake,
should the trial judge review the tip sheet and potentially order the disclosure of some portion of it. Even then- the Crown has the choice of
staying the proceedings rather than making the disclosure.
B. Solicitor- Client Privilege- another common law doctrine that has existed for 100 years. Reasoning- allows accused people to get legal advice in
confidence and has been R v McClure [2001] classified as a principle of fundamental justice. Neither principle will always prevail. However, it
should occur in limited defined circumstances. Obligation to disclose only arises when the accused’s innocence is at stake.
 The McClure Test
 Note McClure Test- the court has adopted a very stringent position and will use the test as a last resort.

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  Initial Question to be asked before McCLure Test - Is the information available in an admissible form from another source? The
evidence needs to be definitely unavailable.
 The accused be unable to prove innocence in any other way. A case based entirely on circumstantial evidence is the least likely to succeed.
 If the Crown has not proved its case beyond a reasonable doubt then it is unnecessary.

The McClure Test

To satisfy the threshold test, the accused must establish that:
-the information s/he seeks from the solicitor –client communications is not available from any other source; and
- he is otherwise unable to raise a reasonable doubt .
If the threshold test has been satisfied, the judge should proceed to the innocence at stake test,
Stage 1 -The accused has to demonstrate an evidentiary basis to conclude that a communication exists that could raise a reasonable doubt as to his
guilt. ( note: standard is not too high- if evidence suggested merely challenges credibility or raises a collateral matter-it is unlikely to pass this part.)
Stage 2 - R v Brown [2002] - If such an evidentiary basis exist, the trial judge should examine the communication to determine whether in fact, it is
likely to raise a reasonable doubt as to the guilt of the accused. (note: the judge is not limited to the written materials in the file-can be oral- trial
judge may request affidavit stating the file is a complete record or contain all information. The solicitor’s file must be the only way for the accused to
prove innocence. The file should be edited to remove references to third parties. It should only be released to the accused and not to the Crown.) The
person whose privilege is being infringed will enjoy use and derivative use immunity concerning the information released.

C. Counselling Records – A controversial with disclosure (production) is in the context of an accused’s right to see psychiatric, medical or other
counselling records regarding a complainant, particularly complainants in a sexual assault trial. It differs from other privileges in several ways:
 differs because not conserved a “class privileged” like the informer, a solicitor/client privileged.
 differs because it is also subject to legislation- s278.1 to s278.91 of the CC
 differs because most frequently the records will be with a doctor or counsellor(not the Crown’s)

Mind Map
Step One- Are you dealing with a sexual related offence ?
Yes  Then s278.1 CC definition or “records” will apply to sexual offences listed in s278.2(a) & relevant for 3rd party records.
No  Then O’Connor Test will be relevant.

Step Two- Is in the hands of third parties?

- s278.1 CC define record and lists several types of records. It is very wide.
- s278.1 CC Does not include- records made by persons responsible for the investigations or prosecution of the offence.

Step Three- If it is excluded from s278.1 CC then apply O’Connor test. –still 3rd party hands (R v McNeil [2009]-can include police disciplinary
reports if can show related to accused case. A finding of true relevance puts the third party records in the same category for disclosure purposes as the
fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe)

Step Four– go through either test.

O’Connor Test for producing 3rd party records

1st stage- the accused must persuade the judge to examine the record personally.
(note: necessary for judges to consider not just the accused right to make a full answer and defence-but also weigh 3 rd parties interests in the balance.
The accused must show the records are likely relevant. The accused must satisfy the trial judge “that there is a reasonable possibility that the
information is logically probative to an issue at trial or the competence of a witness to testify. (higher standard than normal)

2nd stage- having looked at the records-the judge is required to decide whether to release it or some portions of it to the accused.
(Note: Before production the judges agreed that these factors are relevant.
a) the extent to which the record is necessary for the accused to make a full answer and defence.
b) the probative value of the record
c) the nature and extent of the reasonable expectation of privacy vested in the record
d) whether production of the record would be premised upon discriminatory belief or bias and
e) the potential prejudice to the complainants dignity privacy or security of the person that would be occasioned by the production of the
record in question.
f) society’s interest in encouraging the reporting of sexual offences (minority view in O’Connor added to s278.5(2)
g) society’s interest in encouraging and obtaining of treatment by complainants of sexual offences and (O’Connor-added to s278.5(2)
h) the effect of the determination on the integrity of the trial process. (minority view in O’Connor added in s278.5(2)

Parliaments Response to O’Conner Test

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  In response to the two stage approach in O’Connor decision parliament enacted s278.1 to s278.91 of the CC
 s278.1 –definition of “record”
 It applies to more records than the O Connor rules would since, prima facie, any listed 3 rd party record is covered by it and not merely
those found to attract a reasonable expectation of privacy after the fact.
 The O’Conner Test was limited to records still in the hands of third parties. s278.2(2)- makes the protection extend to records already in
the hands of the Crown, unless complainant or witness has “expressly waived the application of those sections.”
 s278.5 (2)CC- requires the judge to balance the salutary and deleterious effects of producing the record for the judges own inspection. (as
minority in O’Connor had wished.
 s278.5 (1)CC- the accused not shows the record is likely relevant but also that “ the production of the record is necessary in the interests of
justice. The section states that decisions at both the first and second stage should be based on the five factors in the majority in but take in
additional factors from the minority as well.

Parliament Steps/Test (producing records dealing with sexual offences)

Step 1 - Is it a record? s278.1 CC-defines record for the purposes of s278.2-s278.9 – means any form of record that contains personal information
for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing , medical, psychiatric,
therapeutic, counselling, education, employment, child, welfare, adoption, social services records, personal journals/diaries/ and records containing
personal information the production or disclosure protected by any other act of Parliament or provincial legislature.
Does not include- records made by persons responsible for the investigations or prosecution of the offence.- see O’Connor Test

Step 2- s278.2- no record relating to a complainant or witness to a sexual offence shall be produced. (2)-includes all records 3rd party/prosecutor
unless the person expressly waived the application. (3)-prosecutor will give notice to accused that s/he has the record.

Step 3- s278.3 (1) accused can make an application to have the record. (2)- may not be made to any judge including preliminary proceedings. (3) It
will have to be in the proper form and (4)must not have insufficient grounds.

Step 4- s278.5 (1)- judge may order production of records if the judge is satisfied that (a) application was made proper under s278.3(2) to (6) (b)
accused established that the record is likely relevant to an issue at trial or to the competence of a witness to testify and (c) the production of the record
is necessary in the interests of justice.
(2) Factors to consider:
factors are relevant.
a) the extent to which the record is necessary for the accused to make a full answer and defence.
b) the probative value of the record
c) the nature and extent of the reasonable expectation of privacy vested in the record
d) whether production of the record would be premised upon discriminatory belief or bias and
e) the potential prejudice to the complainants dignity privacy or security of the person that would be occasioned by the production of the
record in question.
f) society’s interest in encouraging the reporting of sexual offences (minority view in O’Connor added to s278.5(2)
g) society’s interest in encouraging and obtaining of treatment by complainants of sexual offences and (O’Connor-added to s278.5(2)
the effect of the determination on the integrity of the trial process. (minority view in O’Connor added in s278.5(2)

 accused can’t argue - 278.3(4) ( A-K)-Lists insufficient grounds to establish a record is likely relevant to an issue at trial or to the
competence of the witness to stand trial. (a)- the record exists (b)- relates to medical or psych. treatment, therapy, counselling, complainant
received or is receiving (c)- relates to the incident that is the subject matter (d)- may disclose a prior inconsistent statement of the
complainant or witness (e)- may relate to the credibility of the complainant or witness (f)- may relate to reliability of testimony of the
complainant or witness merely because complainant is receiving pysch treatment, therapy, counselling. (g)-may reveal allegations of sexual
abuse of the complainant by a person other than the accused (h)-record relates to prior sexual activity of the complainant with any person
other than accused (i)-record relates to the presence or absence of a recent complaint (j)-record relates to the complaints sexual reputation
(k) record was made in close time to a complaint or to the identity that forms the subject matter of the charge against the accused.

27. Preliminary Inquiries

Introduction
 before an accused is tried for an indictable offence a preliminary inquiry may be conducted by a justice.
 s2CC “justice’-defined to mean justice of the peace or a judge of the provincial court.
 s 577 CC This can be overridden if the AG elects to proceed by way of direct indictment- putting an indictment before the court of trial.
 no entitlement to a preliminary inquiry in summary conviction matters.
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 nature/scope/purpose are becoming less important and interesting.
 The inquiry is no longer a test of the prosecution case as a whole because the sufficiency of the prosecution case is assumed, subject to
any exception covered by a request.
Function of Preliminary Inquiry- is to afford the parties an opportunity upon request to test the evidence of a specific witness on specific issues in
preparation for trial
 The 2004 amendments are partly justified by extensive disclosure of the prosecution case to the accused before plea.
 Disclosure- preliminary inquires use to perform disclosure function but the Charter has made the disclosure process more efficient.
 No charter remedies are available for a preliminary inquiry.
 legislative changes make them available only by request.
 2004 amendments have change the nature of the inquiries
 They are no longer a test of sufficiency of the prosecution’s case as a whole.
 s549- Preliminary Inquires will be held only upon request of the party either by the defence or prosecutor. In the absence of the request, the
accused will be committed to stand trial on a date fixed by the court.
 R v Lena (2001) Judge may lose jurisdiction if he refuses a request for a preliminary inquiry but does not mean that a full blown one will be
held if requested.
 s536.3 - where a request is made-the inquiry will conducted only with regard to issues and witnesses that are specified in advance.
 s536.4 –“Focusing Hearing”- these points should be agreed upon by the parties and the justice can order a hearing to reach an agreement.
 third justification- growing length of cross examinations.
 four justification – the right to an inquiry was being abused by counsel with lack of experience or judgment.
 Where a limited inquiry is held on a specific issue, the decision to commit signifies only that the evidence presented on that issue meets the
standard for committal.

Jurisdiction- there is no inherit jurisdiction and the only powers that may be exercised by the judge are those explicitly granted in the Code
or that are necessarily implicit in those provisions
 s537 ( 1) (i)- The only addition authority they have to expand upon the express powers granted to them.
 Courts have said that that the preliminary inquiry justice has only the powers given by Parliament in the code.
 R v Sazant [2004]- A judge who fails to comply with 18 of the code or who exceeds the authority given by the Code acts without
jurisdiction and may be subject to review in the superior court.
 R v Patterson [1970]- a judge at a preliminary inquiry has no power to grant any remedy other than those contemplated by the code.
 SCC has specified that the judge cannot grant a remedy under the Charter, including remedies of delay, non-disclosure, or the production of
evidence obtained in violation of a constitutional right.

Commencement s536 –an accused who is charge with an indictable offence without absolute jurisdiction of a provincial court judge shall be
remanded to appear before such a judge for trial within the territorial jurisdiction in which the offence was allegedly committed.
 It is important to bear in mind that jurisdiction of the judge at the preliminary inquiry is to examine indictable offences charged by the
prosecution of disclosed by the evidence.
 R v G (A.M) (2000)- Judges can’t try one accused at the same time conduct a trial and preliminary inquiry for the same accused
simultaneously.
 Once evidence is adduced the preliminary inquiry will continue to its conclusion before the same judge.

Scope The scope is identified in s535 CC. It directs the justice or judge to inquire into a charge of any indictable offence or any other indictable
offence in respect of the same transaction disclosed by evidence taken in accordance with Part 18.
 The code was amended in 1985- to allow a the judge to commit the accused for trial on any indictable offence disclosed by evidence at
the preliminary evidence.
 The extension of jurisdiction implies that the presiding judge and the accused must be alert throughout the preliminary inquiry to the
possibility that offences disclosed by the evidence.
 the scope is not limited to the charges in the information. It has to be from the same “transaction”.-this refers to a narrative of conduct that
may compromise several acts and may disclose several offences.
 s541 CC - The Code does allow the accused to call evidence and this can include exculpatory evidence on a matter of defence.
 the purpose of this is to allow the defence to test the evidence
 The preliminary inquiry has also been used as an opportunity to lay an evidently foundation for an issue that can only be decided at trial.
Judge may allow a cross examination of complainant on a range to facts that may later support an application in trial.
 The may also permit cross examination of the prosecution witness to lay a basis for a motion under the Charter.
 The justice has no authority to question whether the information was properly sworn by inquiring into the grounds of belief asserted by the
informant.
 R v Prince [1986] Judge has no jurisdiction to inquire into any special plea based on principles on double jeopardy.
 s601 CC- an application may be made to quash a count which fails to charge a known offence or that is otherwise defective on its face.
 s601 CC- also gives the judge broad powers to amend the charges on information at the preliminary inquiry.
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  judge may also amend a the information to ensure that the charges conform with the evidence.
 The judge has no power to order the prosecution to furnish particulars in support of an information.
 The challenge to quash the information at the preliminary inquiry will succeed only in cases where there is a radical jurisdictional defect
that lies beyond the power of amendment granted by s 601.

Multiple Accused and Multiple Accounts- Re Peters and The Queen (1982) judge has no power to order the severance of accused or counts.
 If multiple accused are charged in a single information each is entitled to make a request for a preliminary inquiry as is the prosecution.
 If the request is made , s536(4.2) the ensuing inquiry must be held in respect of all accused and each of them will be entitled to participate.
 sometimes accused wish to address different issues and hear evidence from different witnesses.
 multiple accounts may be joined in an information together for the purposes of the preliminary inquiry provided that each of them could
properly be subject to a committal order.
 The judge at the preliminary inquiry cannot inquire into summary-conviction offences and indictable offences with the absolute jurisdiction
of the court. They may still show up on the information the judge has not jurisdiction to inquire on them.
 If they accused elects trial by judge alone or judge and jury, the preliminary inquiry will proceed on the electable offence and the others
would have to be separately charged in another information.

Presence of the Accused – the accused is entitled to be present at the preliminary inquiry.
s535 CC- refers to an accused who is “before a justice” and this was interpreted to mean that the justice jurisdiction required the presence of the
accused.
 s537 (1) j.1)- now allows a judge discretion to excuse the accused from all or part of the inquiry.
 Even without this amendment the same result might be justified through the exercise of the judge’s general powers to regulate the conduct
of trial.
 s537(1)(j) and(k) –allows the accused to appear through electronic connection.
 s544 CC- the accused absconds then she has to wave her right to their inquiry.
 counsel for the accused is entitled to act for the absconding accused during her absence if the inquiry is continued and this includes calling
witnesses.
Constitutional Issues – Mills and Hynes- the SCC decided that a court conducting a preliminary inquiry is not a “court of competent jurisdiction”
under the Charter.
 if accused seeks remedy under s 24 or 52 the only forum for such a motion is the court of trial.
 Hynes- The exclusion of Charter issues may be defensible as a matter of policy.

Evidence 235

admissibility- evidence at the preliminary inquiry is taken under oath and recorded.
 prosecution witnesses are heard first and may be cross examined by the accused or counsel.
 s540 (2) and (3)- taking dispositions before the presiding judge or justice but this form of receiving evidence is almost never used.
 dispositions are statements made and sworn before the judge
 evidence tendered at preliminary inquiry must comply with the principles and rules of admissibility that apply to trial.
 R v Pickett (1975)- any statement made by the accused to a person in authority must prove to be voluntary beyond a reasonable doubt.
 receiving evidence in a voir dire applies at the preliminary inquiry.
 presiding judges have no authority to force people to call witnesses ( including prosecution)
 s540(7)- justice acting under this Part may receive as evidence any information that would not otherwise be admissible but the justice
considers credible or trustworthy in the circumstances of the case, including statements made by a witness in writing or otherwise
recorded.
 this requires prior notice by a party to tender such evidence
 this is highly efficient for prosecution because it eliminates the need to produce witnesses to give viva voce evidence.
 s540(7) – might apply when an investigating officer who personally took a statement was the one who presented the evidence at the
preliminary inquiry and was in the position to say that the witness had recently confirmed the statement and was willing and available to
come to trial.
 does not allow the officer to introduce will say statement with no personal knowledge.
 How far does this exception stand? If the opposing party objects to the admission of the evidence , the proponent is entitled to tender it and
it may be admitted if the judge considers it credible or trustworthy.
 This provision allows provides a party with the opportunity to lower the bar admissibility in the form of case specific discretion.

cross examination and prosecution of witnesses – the defence is entitled to cross examine prosecution witnesses at the preliminary inquiry.
(personally or through counsel)
 R v B(E) (2002) this is a full right of cross examination that is constrained by criterion to scope of the inquiry as a whole but also to the
sufficiency of the prosecution’s evidence.
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  can cross examination any issue which makes the prosecution’s evidence seem insufficient.
 the accused may cross examine a prosecution witness on a matter that might have central significance at the trial but that is wholly outside
the scope of the preliminary inquiry itself.
 s537(1.1) justice now has the express power to stop “in the opinion of the justice, too repetitive, abusive, or otherwise inappropriate
 code does not clarify that the defence is entitled to cross examine prosecution witnesses at the preliminary inquiry where there is not
request to do so
Address to Accused at the close of the prosecution evidence the Code requires the justice to address an accused who is not represented by counsel as
follows or in terms like “do you wish to answer to these charges...etc”
 the caution is largely an anachronism.
 s541(2)- requires this caution to be given to an unrepresented accused –presuming the that an accused will be advised of their position
Defence Evidence- s541 CC- The defence is also entitled to adduce evidence on behalf of the accused including testimony by the accused but
it is not obliged to call witnesses.
 since the preliminary inquiry is not a trial, it cannot lead to acquittal it is very rare that the accused is discharged at the preliminary inquiry
solely on the basis called by the defence.
 There is an advantage in the preparation of the defence’s case if the accused calls evidence of potential prosecution witnesses.
 The advantage lies in hearing and seeing the witnesses and thus assessing what they can give in evidence and the credibility with cases
 This is important where there is a real risk that evidence in issue may not be available at trial and the accused wishes to preserve it.
 s715 –provides that if evidence was taken on oath at the preliminary inquiry in the presence of the accused and the witness either refuse or
testify or is dead, insane or too ill too travel or absent from Canada then the evidence can be introduced at trial. This rule depends on the
requirement that that the accused had a full opportunity to cross examine the witness.
 s715 – does not set a comprehensive code on when a preliminary inquiry testimony is admissible. It is possible to admit preliminary
testimony through the hearsay rule.
 R v Hawkins- a witness testified at the preliminary inquiry but then married the accused and so was incompetent to testify at trial.

Publication of Bans - s537(1)(h)- the code gives the judge discretion to exclude the public from court. This occasionally used but rare for
preliminary inquires.
 presentation of evidence at the preliminary inquiry is subject of a ban upon publication in a newspaper or broadcast. The rationale is that
the accused is presumed innocent and should be shielded from adverse publicity before trial.
 s539- a ban is imposed by order of the justice before any evidence is taken: it is discretionary if sought by the prosecution and mandatory if
sought by the accused.
 R v Harrison (1984) the order is sought after the presentation of evidence has begun
 s539(2) If the accused is not represented by counsel, the Code obliges the judge to inform him the right to seek a publication ban.
Committal- s548CC Code directs at the justice or judge at the preliminary inquiry to commit the accused for trial on any indictable offence if the
evidence support of that charge is sufficient.
 it also requires the accused by discharged of any charge if the accused is insufficient.
 What is sufficient evidence?
 Test of Sufficient evidence- Shepard- SCC stated that the test of sufficiency at the preliminary inquiry as for a direct verdict and for
committal in extradition matters, is whether a possible jury, properly instructed, could find the charge proved beyond a reasonable doubt.
 note: Coughlan thinks- Shepard test should be reformulated to require that the prosecution evidence need only support an air of reality as
regards each element of the charge.
 Look at the criteria and weight . –Criteria - evidence corresponding to each of the elements of the offence as define in the code.
Weight- Monteleone SCC has said that it is not the function of the judge to assess the weight of evidence at the preliminary inquiry.
 R v Arcuri [2001]- a judge must not asses the credibility of a witness who testify.
 Court has stated that the test of sufficiency at the preliminary inquiry is concerned with the completeness of the prosecution evidence on the
elements of the offence.
 Arcuri- court stated that the justice should undertake a limited weighing of the evidence including any defence evidence , to determine
whether a reasonable trier of fact could return a finding of guilt.
 Extradition Test- USA v Ferras 2006- SCC went on to modify the Shepard test in the extradition context- indicating that there was no
longer a symmetry between the extradition and preliminary inquiry tests.
 If the prosecution case does meet the test of sufficiency, the judge will order committal on any indictable offence charged or supported by
evidence.
 This is done by endorsing the manner that identifies the appropriate offences. It is not adequate for the judge to simply say the accused is
committed for trial specific offences must be enumerated in the endorsement.
 If the evidence points to another victim then than identified , there may be an order of committal for an offence in relation to that victim,
provided that the offence occurred in respect of the same events.
 If the accused is discharged at the preliminary inquiry then there is no acquittal and thus he cannot not claim protection against double
jeopardy.
 Double Jeopardy- R v Ewanchuk (1974) accused never in conviction in preliminary therefore cannot constitute a final judgement so no
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  double jeopardy.

Review of Preliminary Inquiry Decisions- Code sets out no procedure for appealing the decision to commit or discharge at a preliminary
inquiry and so no appeal is possible
 a review can only be made on the basis of action for certiorari.
 s776- The Code limits occasions when certiorari is available.
 Dubois v R [1986]- Crown can seek on in the case of a discharge and this sometimes occurs.
 s557-allows simpler option for Crown, preferring a direct indictment despite discharge.
 Apart from denying natural justice, a jurisdictional error for not following the code
 s548- requires a judge to commit the accused for trial if “there insufficient evidence”
 Sazant- gave some guidance on the type of mistakes that can lead to jurisdictional errors. have to tested the Crowns evidence against the
actual elements of the offence charged, making decisions on witnesses statements as being ambiguous, capable of interpretation-not his
position to interpret-for trial judge, failing to consider the s 548CC- “whole of the evidence”

- R. v. Arcuri [2001] S.C.J. No. 52 (read above)

Federation of Law Societies of Canada
National Committee on Accreditation
28. The Jury Trial
If a jury trial is to be held, a trial judge is assigned, and a jury is selected.
- Coughlan pp. 54 – 58 (selecting mode of trial)

Statutory Overview to Trial relevant sections are found in widely disparate parts of the Code. ie) procedures for summary convictions are in
Part 27.
 s504 –anyone can lay information alleging the commission of an offence in front of a justice of the peace.
 s506 this information must be in form 2.
 s788- this is the document under a summary conviction trial will take place.
 s507- justice of the peace decides whether to issue a summons or a warrant where “a case for doing so is made out” to require an the
accused to attend court. (two distinct steps)
 s507(3)-evidence is taken on oath.
 505- creates an obligation to present whatever process was issued to a justice of the peace.
 s508- then imposes an obligation on the justice to perform a screening process similar to that in s 507.
 If the matter goes further then the accused is arrested or will receive a summons that was issued. If the accused was arrested he or she will
(s503) be taken in front in front of a justice of the peace who will be conducted in accordance with the procedures in s515.

- Coughlan pp. 274 – 292 (jury selection)

Juries

Jury Selection - Introduction CC provides for several methods of trial .

I. trial by provincial court judge
II. trial by superior court judge alone
III. trial by superior court judge with jury
 s471 CC- provides that every indictable offence shall be tried by a judge and jury “except where otherwise expressly provided by law”
 few offences-murder, treason – are required to be tried by jury, while a few indictable offences such as theft not exceeding $5000. cannot
have a jury. But for all other indictable offence an accused can choose between any of the three modes of trial.
 Jury selection involves provincial and federal legislation-
s 92(14) Constitution Act gives provinces jurisdiction over the administration of justice in the province. A jury of 12 members who will
hear an individual trial come from a jury array, the larger number of prospective jurors summoned to the court in order for the selection to
take place.
 Each province a jury act will set out rules by which the jury array is summoned to the courtroom.
 The rules include who is qualified and not qualified as a juror & compensation for jurors.
 One the jurors are in the court room the Code will govern the actual selection of the jury.

Provincial Legislation Jury selection procedures and creating a Jury Array

 s626 the Code specifics that jurors must be qualified in accordance with the laws of the province. It states that no person can be
disqualified from jury service based on sex.
 The jury array should be assembled from a broad and inclusive a source a possible within the province.
 Nova Scotia- the legislation explicitly states sets out the goal- “data base that to the extent possible shall include the entire population.
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  Qualified people-juror is required to be of the age of majority of the province, a resident of that province and a Canadian citizen.
 Disqualified people- 1) that the potential juror would face a conflict in serving on a jury or 2) that what the juror does in everyday life is
more important than , or for some other reason justifies a general exception from serving on a jury.
 examples of disqualified people- law enforcement, judges lawyers, sometimes article clerks or those with a law degree, people with
serious criminal records, The governor general, the lieutenant governor members of Parliament, members of the provincial government,
senators-sometimes doctors, veterinarians and health professionals. Hardship for religios or conscience reasons and excludes menally and
phsycially disability which would prevent them the person from fulfilling the role of the juror.

Criminal Code Jury selection Procedures-Choosing the Jury and the Jury Array

a) Mechanics of selecting Jurors - array has been assembled in court. Code procedures then kick in.
 The accused & prosecutors can challenge the array itself –based on s629 Code- “partially, fraud, or wilful misconduct on the part of the
sheriff or other officer by whom the panel was returned.”
 If the array has been accepted, s631 Code- then names are pulled from a box. This procedure until after the exclusion of jurors.
 talisman. If entire array is run through with a sufficient number then s644 Code allows the judge to order the sheriff to “forwith” summon
the jurors to the courtroom. This can occur by the sheriff going to the street and requiring passersby to attend for potential jury selection.
These jurors are known as “talisman”.
 Criminal trials must commence with 12 jurors.
 R v. Singh (1996)There is a risk that all 12 will not be present when the trial begins- because of pre-trial motions, and voir dires
 S644 (1)- Code-allows a judge to discharge a juror based on illness or other reasonable charge/other jurors may seek to be excused under
this section.
2 recent amendments are aimed at curbing leaving jury selection.
1. s644 (1.1)- if the jury has not begin herd evidence-a judge can choose a replacement juror by using a tailsmen or by R v Peterson (2001)
selecting a juror from some other jury array available.
2. s631(2.1)- allows judges to direct the selection of one or two alternate jurors at the time of the original selection of twelve jurors. These
alternate juror then attend at the commencement of trial (if a full jury is not present the alternate jurors can be substituted.)
Alternative jurors cannot be substituted once evidence has been heard.
s644(2)- directs that the jury remains properly constituted, unless judge orders otherwise, provided the jurors are not reduced to 10.

3 mechanisms by which a member of the jury array might be excluded from the jury:
 s632 – allows trial judge to excuse jurors based on any 3 grounds in this order.
1. exemption ( 3 reasons- a) personal interests b) relationship with anyone involved (judge-witness etc) c)personal hardship or another
reasonable cause
2. challenge for cause
3. peremptory challenge

1. exemptions-
s632 Code- allows a trial to excuse jurors based on any 3 grounds.
a) personal interests in the matter to be tried
b) relationship with the judge, prosecutor, accused, counsel for the accused or a witness
c) and personal hardship or other reasonable cause.

 This procedure is carried out before individual jurors names are called, by the judge asking whether jurors wish to be excused.
 (Barrow) this is part of the trial so the accused can be present for it.
 The first two grounds upon which jurors can be excused relate to potential partiality which must be dealt with by way of the challenge for
cause procedures in the Code.
 s633- the trial judge , instead of excusing a juror completely, the trial judge can stand aside jurors. The jury selection continues with the
remaining members of the array. Jurors that the judge allows to stand aside can be re-called if array is exhausted.
 R v. Krugel (2000)- “other reasonable grounds”- can include potential partiality on the part of the juror.
 s631 Code the section states that it can only be used when a juror is individually called.
 Douglas- it appeared to approve the practice of the trial judge who with no objection from counsel, adopted the administrative
convenience of informally standing aside, as a group, all jurors who indicated that they would seek an exemption if they were asked.

2. Challenges for cause-

s638 Code- sets out grounds upon which a juror may be challenged for cause. Both the crown and the accused are entitled to an unlimited
number of challenges for cause, but the grounds upon those challenges can be made exhaustively defined in a)-f)

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  some of the grounds are factually questions- ie jurors name do not appear on the panel, the juror is alien, or the juror has been
convicted of an offence for which the sentence was death or imprisonment exceeding 12 months.
 s638(1)(f)- A juror can be challenged on a physical incapacity to perform jury duty or an inability to speak the language in which the
trial will occur
 Canada differs from the US in that it presumes the impartiality of every juror and that counsel will not be allowed to ask any
questions regarding challenge for cause without first satisfying the judge that there is some reason to doubt the juror’s indifference.
 R v Hubbert [1977]- not indifferent means “not impartial or prejudiced”
Four types of potential juror prejudice.- R v Williams [1998]-
1. interest prejudice- when a juror has a direct interest in the trial- ie juror is the uncle of the accused) A trial judge can simply ask about any
relationships and excuse jurors before
2. specific prejudice-which consists of attitudes or beliefs about the particular case, gained through media coverage or some other source-
preventing the jurors from being impartial.
3. generic prejudice-consisting of stereotypical attitudes about the accused , victim, witnesses, or nature of crime
4. conformity prejudice- when a juror might feel influenced by strong community feelings about an expected outcome.

 challenge of cause is not intended to be means for counsel to see what type the juror is or to decide to use a peremptory challenge.
2 step –process in involved-
 1st stage , counsel must satisfy the judge that the challenge for cause should be permitted –counsel must tell the judge the basis for that
challenge. If the trial judge not satisfied that counsel has provided sufficient reason to doubt the jurors impartiality, the challenge will
not occur. Williams [1998] Test- is whether there is a realistic possibility for partiality.
 2nd stage is the challenge itself-where counsel is permitted to ask questions of the jurors to determine whether the juror will in fact be
able to act impartially. At this stage counsel might not have an unrestrained right to question jurors ( in some cases only one or two
predetermined questions will be allowed.)
 Cases often site concerns where challenges that are relevant as a whole. ie ) Hubbert- wanted to ask every juror whether or not he
would be prejudice if he was detained in a mental health facility.
 Pre-trial Publicity – pre trial publicity can make a juror impartial. This has been a basis upon which counsel have sought to ask
questions (Sherratt- counsel was unsuccessful- in question about pre-trial publicity- Held- there was a distinction between mere
publication of facts of a case on the one hand and misrepresentation of evidence by the media , wide publicization of discreditable
facts from an accused’s past or speculation about the accused guilt or innocence on the other hand.
 It is difficult to persuade the judge to question every juror about possible prejudices.
 Racial Prejudice- Williams-SCC signalled that trial judges should be more open to being persuaded that there is a realistic
potential for partiality when the challenge is based on possible attitudes about race.
 Looking for attitudes particularly relevant to the justice system was an unrealistic test. Racist attitudes are insidious and
sometimes unconsciously held therefore the effect of the attitude is unpredictable.
 In Williams- the accused was aboriginal and his counsel wanted to challenge jurors for cause based on racial attitudes. The accused
did not offer evidence they were racially prejudice. Rather he led evidence showing that there was widespread bias against
aboriginal’s people in the community. The judge accepted the evidence but held that evidence of general bias in the community did
not establish a realistic partiality on the part of the jurors at trial- because jurors could be expected to set aside their biases.
 SCC overturned this result- because the lower courts had set too high the standard for showing a realistic possibility of prejudice in
these circumstances.
 Judicial Notices because of racial prejudice
Judges can take judicial notice of wide spread racial prejudice.
 R v. Parks- found a similar conclusion to Williams but the accused was black.
 R v Wilson- decided that challenges for cause based on realistic potential for racist attitudes should be allowed to any black
accused in Ontario without further empirical evidence of racism.
 R v Koh- court had expanded the findings to allow challenges for cause by any accused belonging to any visible minority-
the intention was not to do way with the need for finding of a realistic potential for prejudice but “to find that in light of the
numerous trial and appellate decisions in this jurisdiction concerning various categories of visible minorities, this test has
been met wherever the accused is a member of a visible racial minority.
 However, R v. Spence [2005]- Court refused to follow a Parks like question base on the theory that witnesses might fail to
be impartial because they would feel a race based sympathy for a victim, rather than a raced based antipathy to the accused
in Williams and Parks. Refused a natural sympathy argument.
 Sexual abuse/assault , However R v Find [2001]- used the “generic prejudice” argument from the Williams case and argued to question
jurors in order to decide to challenge them for cause over realistic partiality due to wide spread sexual abuse. Held- unlike racial prejudice,
any prejudice of this sort can be cured by judicial direction.

 Procedure for challenge for cause-

 for the first juror, the accused decides whether to challenge for cause before the Crown.
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  s635(2)- the accused and the Crown take turns
 if a judge permits a challenge for cause to be heard , it is tried by the 2 jurors most recently sworn or by two people appointed by the judge
if no jurors have yet been sworn.
 The trial should instruct the triers that they are to decide whether the juror is impartial on a balance of probabilities, they must agree on the
decision-they can retire to a jury room or decide where they are (Hubbert) and are to say so if they cant agree on a reasonable time.
 The judge has discretion to exclude other members of the panel from the jury room and also the discretion to permit submissions by
counsel following the questioning.
Procedure not followed- it will generally be an error that leads to a new trial.
 Barrow- judge permitted jurors to request exemption on the basis that they would be unable to decide impartially. They were done
without simply on obvious grounds such as relation of the accused but based on pre-trial publicity and were held to usurp the portion
of the challenge for cause process.
 unclear- as to whether a judge is obliged when two triers cannot agree concerning the partiality of a juror to appoint two new triers
under s 640(4) or whether the judge has discretion to discharge the juror under s 632.
 a challenge for cause process is not to be used in order to gain evidence to decide to challenge peremptorily-(indirectly it happens)
 An unsuccessful challenge for cause does not prevent a peremptory challenge for being used.

3. Peremptory Challenges s634- Code governs allow the accused or the Crown to dismiss a potential juror without explanation.
 unlike challenges for cause- peremptory challenges are limited in number.
 each party has 20 peremptory challenges in case of high treason or first degree murder
 12 challenges in cases of other offences that carry sentences, of 5 years or more
 4 challenges in all other cases
 In a trial on more than one charge- the number of peremptory challenges for the most serious offence is provided.
 s634 Code- more than one accused- each accused receives the same number as all the accused combined.
 Blackstone’s 2 rationales for peremptory challenges.
1. people have unknown prejudices of each other and people should not be tried by someone who for no reason- they dislike.
2. if the reason assigned to prove insufficient to set aside the juror?
 controversy- has been the question of whether the Crown is similar unconstrained in its use of peremptory challenges.
Charter Values in peremptory challenges- Crown’s quasi-judicial role precludes some uses of peremptory challenges and that it must
conform to the Charter principles and values.
 R v Gayle (2000)- public confidence in the administration of justice would be seriously undermined if Crown counsel were permitted to
exercise the power of peremptory challenge on racial or ethnic grounds.
 R v Pizzacalla -order a retrial in a case where Crown used its stand aside power to produce an all female jury in a sexual assault case.
 R v Biddle [1995]- Crown used its stand aside power to create an all female jury in a sexual assault case.
Principle about impartiality- the Crown cannot use peremptory challenges to produce a jury that does not appear impartial.
 source of dispute is whether reasonable people will see the conscious exclusion of one race or one sex from a jury as violating that
principle.
 Cheif Justice McLachlin- argues that an all women jury would be as capable of being impartial as all male juries have presumed to be
for years –This perception that all male juries is capable is no longer excepted.
 s626(2)- preventing anyone from being disqualified , exempted or excused from a jury panel based on sex.
 there has been changes in provincial legislation to produce jury arrays from sources that include more women.
 sexual assault cases- courts have been concerned about “myths and stereotypes”
Crown Strategies in jury selection R v Latimer [1997]- it wrong for the prosecutor to adopt a jury strategy hinging on exactly that
unreasonable and objectionable belief that a jurors sex is likely to affect the jurors reasoning.- R v Latimer [1997]- handing out a questionnaire
without discussing it with the trial judge or defence counsel. “this was a flagrant abuse of process and interference with the administration of
justice.”
 no absolute requirements for juries to be representative. (Biddle)It is generally good means to try and achieve impartiality and
competence but it is not an end in itself.
 (Kent)- an accused cannot insist that the jury or jury array contain members of the accused’s race.
 (Butler) if there has been a conscious attempt to keep members of one race from the jury array then that will constitute a basis to
challenge the array.
Proving strategy- proving the motive of the Crown is very difficult. In Butler- because off the record remarks about Indians appeared.
 Pizzacalla- another candid statement that they created all women juries for sexual harassment cases was acceptable.
 Gayle- Crowns actions to peremptorily challenge the only two black males called as potential jurors and no evidence of why they were
challenged. No appeal allowed because there was no factual foundation upon which to conduct it.
 If someone did argue s11(f) of the Charter- the defining feature of a peremptory challenge is that it allows a party to challenge “without
showing any cause at all”- Crown can answer “I felt like it.”
 Couglan suggest- judicial creation of a presumption where the ultimate make-up of the jury suggest that the Crown might have acted on
principles that violate Charter values-the jury selection should be seen as tainted.
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29. Pre-Trial Motions

a) Timing and Means- authority is not set out very clear on what “pre-trial” means.
 R v Chabot [1980]- found the key transition point to be when an indictment was “lodged with the trial court at the opening of the
accused’s trial, with a court ready to proceed with the trial.
 R v Kalanj [1989]- the court notes that the word “charged” has no precise meaning in law and could reasonably range from being told
that one will be charged with an offence to being called upon to plea in court.
 s11 (b) right to trial court rejected Chabot- someone is charged when an information is sworn or a direct indictment is laid.
 Basarabas and Spek v The Queen [1982]- court noted that the time of commencement of a jury trial will vary depending on which
Code section is being considered and what interests are at stake.
 R v. Barrow [1987]- in dealing with the right to be present for trial, the court has considered jury selection to be part of trial but
dealing with the power to replace a juror,( Basarabas) the court has held that the trial does not commence until the accused is placed
in the charge of the jury.
 Pre-trial motions- court has held that only the trial judge should hear applications to sever counts.
 R v. Litchfield-court held that only the trial judge has jurisdiction to issue severance orders. However, the court noted that as long as a
trial judge has been assigned, there is no need to wait until the actual trial date to bring the application.
 s645(5)-authorizes a trial judge in a jury trial, before the jury has been selected to deal with any matter that would be dealt with in the
absence of a jury.

Appeals

 Indictable Offences – 21 and 26.

 An appeal through the Supreme Court may be possible under s40.
 Dagenais v CBC-literal interpretation of s674 Code would exclude relying on s40 and such a literal interpretation could not be adopted.
used to allow 3rd publication ban –not provided in the Code.
 R v Laba -s40 permitted the Crown to appeal a ruling overturned a reverse onus clause in the Code. The Crown was appealing a case he
had won.
 s40 is sometimes used in cases where an appeal of an interlocutory order is in an issue

Appeals of Indictable Offences

1) Appeals by the accused

 s675(1)(a)- a person can appeal a conviction based on law alone ( with leave of court of appeal) on a question of fact, on mixed
questions of law and fact or “any ground of appeal that appears to the court of appeal to be sufficient ground of appeal.”
 This appeal process goes through 3 “filters” limiting each ground.

The first two filters are found in s686(1)(a). s675- sets out the bases upon which an appeal can be made; the grounds upon which they can be granted
are narrow.

s686 (1)(a) sets out those grounds:

i. the verdict should be set aside on the ground that it is unreasonable or cannot supported by the evidence
ii. the judgement of the trial court should be set aside on the ground of a wrong decision on a question of law, or
iii. on any ground there was a miscarriage of justice.

 If someone makes an appeal based on error of relating to mix fact or mixed fact and law-appeals will not necessarily begranted under
s686(1)
 (First filter) Only an error that results in an unreasonable verdict or a miscarriage of justice will be sufficient.
 (second filter) relates to questions of law- s686(a)(ii) says that demonstrating a wrong decision on such a question will lead to a
successful appeal. It does not mean it will be granted as it may be treated as a question of mixed fact and law.
 (third filter)- even if conditions set in s686(1)(a) it may not be granted. These grounds are even more narrowed by s686(1)(b) which
sets out grounds where court of appeal can dismiss and appeal.

686 (b)- contains 2 other bases which an appeal might be dismissed despite an error.

iii)- the court is of the opinion that no substantial miscarriage of justice has occurred or
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 iv) c appellant was convicted by no suffered no prejudice.

 the former of two are called the “curative proviso”

 Errors of law that have no substantial wrong do not create a miscarriage of justice.
 if an appeal is granted under 686(1)(a)- the court of appeal quashes the conviction and either acquit the accused or order a
new trial.

Appeal Provisions

Standard of review- Housen v Nikolaisen [2002]-

 pure questions of law- correctness –appellant court can substituted its opinion for that of the trial judge.
 questions of fact-are only reviewable higher standard. A finding should not be overturned in the absence of a “palpable and overriding
error”

3 rationales for these:

a) costs-should have limits on availability

b) judges would look incompetent if giving to easily
c) trial judges are better at fact findings because they hear the facts.

 questions of mix law and facts are most complicated. these issues fall on a spectrum

Unreasonable verdicts

 Housen v Nikolaisen [2002]- basic standard of assessing whether a verdict is unreasonable is “whether the verdict is one that a
properly instructed jury acting judicially, could reasonably have rendered.”
 This test has both objective and subjective elements.
 The same principle applies to both jury and judges alone but there are minor differences.

Juris
do not give reasons and are precluded from revealing anything concerning the deliberations in the jury room. If a jury was charged
incorrectly then there would be an error of law-and appeal bases on s686(1)(a)(ii) rather (1).

If a jury has been properly instructed but has returned with a questionable verdict-it means that the jury was not acting judicially.
The jury should act dispassionately and apply the law and adjudicate on the basis of the record and nothing else.

The same standard applies to concluding that a judge has rendered an unreasonable verdict .

Beaudry-circumstances where trial judge verdict unreasonable- finding an error in the trial judges reasoning is useful whether a verdict is
unreasonable but has no great significance. It comes down to the ultimate verdict.

 Justice Charon - finding an error in the trial judges reasoning is useful whether a verdict is unreasonable but has no great
significance. It comes down to the ultimate verdict
 Justice Fish – s686(1)(a)(i)- refers to verdicts that are unreasonable or cannot be supported on the evidence, there are two bases upon
which such an appeal could succeed.
 Justice Binne- votes with Charon in the result making those reasons that majority conclusion on whether the appeal succeed or fails.

A verdict can be found to be unreasonable when multiple accused and counts that are inconsistent verdicts.

Errors of law and Miscarriage of Justice

 s686(1)(a)(ii)- permits an appeal to be granted on a wrong decision of law

 s686(1)(a)(ii)- permits an appeal based on miscarriage of justice.

Errors of law

 R v Beavan [1993] failing to give a Vetrovec warning where one is require is an error of law.
 R v G (RM) [1996] Flawed instruction to the jury as an improper exhortatation.


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Miscarriage of justice

 can either be procedural or substantive

 Fanjoy v The Queen [1985] any error that deprives the accused of a fair trial is a legal error.

Procedural Irregularities

s686(1)(b)(iv) allows appeals on irregularities in procedure.

Appeals by the Crown

 can be brought under s676 Code

 appeal rights are not the same as accused (Crown’s right is narrower)
 Crown cant appeal if acquittal was unreasonable.
 crown’s right is set out in s676(1)(a)-any ground that involves a question of law alone”

Other Appeal Issues

 s683 a court of appeal can order exhibits or other items produced, hear witnesses or amended an indictment

fresh evidence on appeal

 is is possible that fresh evidence on appeal be introduced that was not before the trial court. It has to be done in a certain
way. R v Palmer –court lays down guidelines for introduction of new evidence:
1. The evidence should be generally not be admitted if it could have been adduced at trial
2. the evidence must be relevant
3. evidence must be credible and reasonably capable of belief
4. if believable it could reasonably with other evidence have an effect on the results.

Duty to give reasons

Sheppard - There is no duty to give reasons pg370

 8 reasons when a trial judge had to give reasons 371.

1. accountability -owed to the public
2. a person should not be left in doubt about why a conviction has occurred
3. lawyers and advisors may require reasons to assist them in regards to potential appeals
4. reasons play an important role in the appellant process
5. ..

Appeals of Summary Convictions

 the court is different- provinces superior courts of criminal jurisdiction.

 different grounds
 s813 Code
 also different methods of appeal.

Appeals in Supreme Court of Canada

 s691 and 695- create a right to appeal decisions of a court of appeal regarding indictable offences in Canada.
 can only be based on a question of law. no other ground.

 two times when a n accused or Crown are permitted to appeal.

- where a judge of the court of appeal dissents on a question of law
- when SCC gives leave to appeal a question of law.

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