Uploaded by Marc Stephen


> Prosecute vast majority of offences in Canada not including drug,
trafficking or offences relating to taxes
> Legislation includes Criminal Code; Youth Criminal Justice Act;
Highway Traffic Safety Act; Provincial Offences Act, etc.
> Crown Policy Manual – charge screening
1. when prosecuting an offence, consider the public interest AND
2. the likelihood of conviction – save time and resources if cannot
prove elements of the offence or strong non-speculative defences
> R v Boucher – goal is not to get a conviction, but to lay out the relevant
evidence to the trier of fact and if cannot prove the accused guilty
BARD, then that is acceptable
- DN act in the partisan sense usually required of defence counsel by
adversarial system, but as promoter of public interest in achieving
- Much of the role involves exercise of prosecutorial discretion – in
making decisions, must be secure from political/social pressures –
independence = important constitutional convention
Crown has overriding and ongoing responsibility to be fair. Must be
a) objective // b) independent (especially from police) // c) act with lack of
> There is a fundamental need for a separation between police and crown
functions – they are mutually independent, although dependent on one
> Separation acts as an important safeguard against the misuse of both
investigative/prosecutorial powers of the state – R v Regan
Crown owes the victim a special responsibility of candor and respect – while
prosecution is not aimed solely at pursuing the victim’s interests but rather
promoting the public interest, Crowns should display sensitivity, fairness and
compassion in their dealings with the victim
> should consider the interests, including harm suffered by them and their
privacy interested at every stage of the prosecution
> should have access to information about the court process, including
victim/witness assistance, and the status of the case in which they are
> in cases where serious emotional, physical or psychological harm has
occurred to the victim, Crown should ensure that a system is in place to
ID these cases // victim is informed in a timely fashion of matters that
potentially affect their security and significant changes in the status of the
> Must establish – R v Miazga
1. crown acted outside role as “minister of justice”/ with malice
- must establish malice – which is a question of fact – that the
prosecutor was impelled by an “improper purpose”
- ensures malicious prosecution liability will not be imposed by reason
of incompetence, inexperience, poor judgment, lack of
professionalism, laziness, recklessness, honest mistake or negligent
2. will need to prove absence of probable and reasonable cause for
initiating prosecution
-based on Crown’s
Crown Disclosure Obligations (Stinchcombe)
Stinchcombe recognized a general duty on the Crown to disclose all materials that is
in its possession or control, regardless of whether the evidence is to be called at
trial or is inculpatory or exculpatory.
Rationale: based on the idea of fair play between parties and the right to make a
full answer and defence.
NB: Crown obligation is ongoing/continuous – it survives the trial and includes
any information which there is a reasonable possibility that it may assist the
appellant in prosecuting an appeal Stinchcombe
BUT RECALL: Defence have an obligation to diligently pursue disclosure by
actively seeking and pursuing disclosure once they become aware or ought to
have been aware of it (can’t just stand up at trial and say, they never gave it)
 If Crown refuses disclosure, defence can seek review from a TJ
 On review, TJ must be guided by the general principle that
information ought not be withheld if there is a reasonable
possibility that withholding of info will impair the right of the
accused to make full answer and defence
Limits on Crown Duty to Disclose
Once defence has invoked right to disclosure the onus is on the Crown to
comply with the obligation BUT Crown may refuse to disclose following
 Clearly irrelevant material (but note Crown must err on side of
 Information not in the control/possession of the Crown
Intoxilizer maintenance records not considered 1st party disclosure – R
v Vallentgoard ABCA 2016, R v Jackson ONCA 201
> Police misconduct records may be 1st party disclosure where relevant to
the case – R v McNeil
Application Procedure:
1. Accused obtains a subpoena duces tecum under ss. 698(1) and 700(1) of Code and
serves it on third party record holder –
 Subpoena compels person to attend court with records
2. Accused brings an application (with affidavit evidence) showing that records
are likely to be relevant
 Notice of application given to Crown, person who’s subject to
records, and any other person with privacy interest *EXAM:
Hinted that this was important
o E.g. the complainant whose records are being disclosed, the
hospital and counsel, the doctor and counsel)
 If record holder or someone with privacy interest
advances claim that the documents are privileged
then privilege will bar application for production
(But consider McClure Innocence at Stake
Information that would undermine privacy interests
Privileged information
Time-sensitive information
o Example: Ongoing investigation may be protected through
redaction of witness information/police techniques etc.
Counsel for the complainant is often appointed by Legal Aid
(NOT Crown)
3. Application is brought before judge seized with trial (if production is
contested; if not contested production is moot and no hearing necessary)
4. If privilege is not an issue, then judge applies two stage O’Connor Test
 Stage 1: Determine whether the accused has established that the
record is likely relevant (i.e. there is a reasonable possibility that the
information if logically probative to an issue at trial or competence
of a witness to testify) such that it should be given to judge to
o Burden is significant but not onerous – no balancing; reflects
gate-keeper function
 Stage 2: If likely relevant, the record is given to the judge to inspect
o Judge inspect record to determine whether it should be
produced in part or in whole to accused
o Involves balancing: judge must examine and weigh the
salutary and deleterious effects of production and determine
whether non-production would constitute a reasonable limit
on ability of accused to make full answer and defence
o Factors considered include:
 Extent to which record is necessary for accused to
make full answer/defence
 Probative value of record
 Nature and extent of REP vested in record
 Whether production would be premised upon any
discriminatory belief or bias
 Potential prejudice to complainant’s dignity/privacy
 NB: Last two tailored
to sexual assault
proceedings and likely
of little assistance
o NOTE: If claim of likely relevance is borne out,
accused’s right to make full answer and defence
will, with few exceptions, tip the balance in
favour of allowing the application for
Four Stages of the criminal process
1. investigative – crime committed // police lay a charge // information
given to Crown – they decide whether to prosecute, whether alternative
measures are appropriate, whether to proceed indictable/summary if
2. pre-trial – accused shows up – if in custody they have a bail hearing, if
they have been previously released, they have an arraignment // plead
guilty or innocent // if guilty – go to sentencing, if not guilty, goes to
trial // if indictable offence, accused elects for trial by judge alone or
with jury // ptre-trial motions are made ie. Expert opinions, disclosure,
etc. // preliminary hearing if indictable and elected by accused – used to
determine whether is enough evidence to require a trial – judge decides if
there is a reasonable likelihood of conviction
3. trial – found guilty BARD, goes to sentencing // found not guilty
BARD, goes free
4. post-trial – appeal if either party doesn’t like the outcome
 Preliminary hearings are heard on indictable offences and used to establish
whether the crown and defense have enough to continue to trial – it is a great
way to decide whether making a plea might be the best thing for the accused
 Standard is essentially whether there is admissible evidence that a jury
could justify a conviction on
 The judge will decide at the end if it is worth going to trial ie. Whether the
evidence can hold up to where it needs to be – but even if they say that the
evidence is weak, can still continue, you might know where the strengths and
weaknesses of your case are
> Actus reus concerns the “external elements” of the offence – it is an
act/omission of the accused that is required as proof of the offence –
criminal law only punishes those acts which are conscious and voluntary
> Mens rea is the ‘guilty mind’ when commiting the crime – the intention
or knowing that what is being done is wrong – that is why individuals
with mental illness cannot be found guilty b/c they cannot have formed
the required intent
- punishment set out in s.787 CC: up to 6 months jail and/or $5000
- no fingerprints submitted
- no election for judge and jury if proceed to trial
- appeals on summary conviction offences go first to the highest trial
court w/i the jurisdiction; after superior court, goes to ONCA and
then to SCC which is rarely allowed
- eligible for an automatic pardon after 3 years provided accused is
not convicted of any further offences in the period
- punishment ranges from: NO minimum to life imprisonment
- if offence = hybrid, Crown MUST elect whether to proceed
summarily or indictably; have this election endorsed on the
- accused has to submit fingerprints when required to appear to
answer to an indictable offence
- accused has to determine whether they want to be tried by judge
alone or judge and jury
- appeals go to ONCA and then to the SCC
- accused convicted under an indictable offence can apply for pardon
after 5 years
> Grounds for Detention – s.515(10)
a) Primary grounds – to ensure court attendance
-failure to appear in the past, isn’t from the area…
b) Secondary grounds – to protect public and prevent accused from
committing further offences or interrupting with the administration
of justice
- Crown must establish likelihood of re-offense + safety risk/concern
for administration of justice
c) Tertiary grounds – maintain public confidence in the administration
of justice
strength of Crown’s case
gravity of offence
circumstances surrounding the offence ie. Gun used
lengthy sentence if convicted
- R v St Cloud SCC – tertiary grounds are not to be used sparingly or
where other grounds DN measure up – videotape evidence was
strong in this case
- R v Hall – had strong DNA evidence against the accused
> onus is generally on the Crown to show cause why the accused should
not be released on bail – in some cases, onus is switched
o accused commits an indictable offence while on bail for another
indictable offence //
o individual who is not ordinarily a resident of Canada is charged with
an indictable offence //
o charged with failing to comply with condition of
recognizance/undertaking for a charge that is still pending //
o charged with trafficking/possession for the purpose of doing so
o charged with weapons offence while under weapons prohibition
o charged with an offence under section 469
o charged with organized crime or terrorism offence
> Some matters may have an obligation attached that a lawyer must
represent them
> Can be challenging to ensure a fair and efficient trial where the accused
was unrepresented or self-represented
> Have to make sure the accused is given all of the disclosure so that they
have the ability to make a full answer and defence
> R v McGibbon: Trial judge is required, within reason, to provide
assistant to the unrepresented accused – aid him/her in the proper
conduct of the defence and guide them through the trial – how far the
judge will assist is a matter of discretion
> Judge may appoint amicus curiae or counsel
If staying a charge
 Must tell the judge so that the charge can be officially stayed on the
accused’s record
 Section 579 – at any time the AG or counsel instructed by the AG may
direct the clerk or officer of the court to make an entry on the accused’s
record that the proceedings are stayed
> Referred to as a “trial within a trial” - Necessary where evidence must be
called to resolve a preliminary question of fact before the judge can make
a ruling – used when about to lead evidence that may or may not be
admissible OR before the trial starts
> Examples of common types of voir dires include
o confession voir dires where the Crown must establish BARD that
the accused’s statement was made voluntarily as a precondition to
its admission into evidence
o voir dire as to the admissibility of a hearsay statement where it must
be shown that the statement meets the criteria of necessity and
o applications for the production of sensitive records under s.278 of
the Code (sexual records) where an initial showing that the records
are likely relevant is necessary before the issue of production can be
> Strict liability – upon proof by the Crown BARD that actus reus is made
out, burden shifts to accused to prove due diligence on BOP – R v SSM
- reversal of burden of proof is constitutional; doesn’t breach s.11(d) and
is justified under section 1
> Absolute liability – upon proof by the Crown BARD that actus reus is
made out, accused is found guilty = NO requirement of mens rea
- R v SSM – city allowed pollution in the river – DN matter it was an
> Most witnesses are compellable – main issue is competence – witness can be
subpoenaed to attend the proceedings
> If can establish that the witness is highly likely to have material evidence, can
ask the court for a “material witness warrant”
> Depending on the witness, may need to go ahead without them or determine
their necessity to the proceedings and work with defence to plea bargain
> Common law confession rule (voluntariness)
- At common law (R v Boudreau/Ibrahim), Crown must prove
BARD on a voir dire that all statements made by the accused to the
person in authority were made voluntarily in order to be found
- Assessing voluntariness (R v Oikle)
threats or promises operating as inducements
atmosphere of oppression ie. Deprivation of food
lack of operating mind
appalling police trickery – “shock the community”
Section 718
 denounce unlawful conduct; deter offender and other persons from
committing offences (specific and general deterrence); separate the offender
from the rest of society where necessary; assist in rehabilitation for offenders;
promote reparations for harm to victims or the community; promote a sense
of responsibility in the offender and acknowledge the harm done
 punishment must be proportional to the offence – step principle
 aggravating – race/religion; domestic violence; victim is under 18; offender
was in a position of power; significant impact on the victim; criminal record
 mitigating – youth; shortness or record; good character; remorse; early guilty
plea saving the victim having to testify; also have to consider the offender’s
Aboriginal status as per Gladue
> for a sentence of two years/less, jail is served in provincial institution
> can be served intermittently IF sentence is 90 days or less
> Truth in Sentencing Act – placed a cap on 1:1 on credit for presentence
custody – enhanced credit of a maximum 1.5:1 can be granted “if the
circumstances justify it” and the person was not detained b/c of their
Consecutive or Concurrent Sentence
- test is whether the acts constituting the offences were part of a
linked series of acts within a single endeavor HOWEVER certain
offences generally merit consecutive sentences even
Kineapple Principle
- 2 or more offences (with elements that are substantially the same) committed in
section 742
the same transaction – Crown will stay the offence(s) with the lesser sentence
> New term that essentially describes what is known as plea-bargaining –
may include a judge, but generally just a crown, defence and client
> Crown cannot accept a guilty plea where they know they cannot prove
that the accused committed the offence or an essential element
DNA Order:
> Primary designated offence – s.487.04 includes offences like aggravated
assault, murder etc.
> Secondary designated Offence – discretionary – made where the Crown
believes it is in the administration of justice to ask for one – offence that
has the maximum punishment of imprisonment for 5 years or more OR
where the individual is found NCR or convicted, discharged under
section 730 or found guilty under the Youth Criminal Justice Act
Ancillary orders
– may include a prohibition against the possession of weapons, firearms, etc.
- usually “keep the peace, and be of good behavior”, peace bonds, etc.
> Purposes: reduce society’s reliance on incarceration // give effect to the
principles of restorative justice – not to be equated with probation which
is a rehabilitative measure
> May be imposed for most offences BUT is unavailable for:
1. serious personal injury offences; terrorism/criminal organization
offences; prosecuted by indictment that carry a maximum term of
imprisonment of 10/more years OR
2. offences punishable by a minimum term of imprisonment
> requires that a jail sentence of less than 2 years be imposed in order to
consider the application of a CSO
Process for CSO (Proulx)
> sentencing judge should reject penitentiary term and probationary
measures as inappropriate
> IF jail sentence of less than 2 years within range THEN judge
should consider if it is appropriate that the offender serve the
sentence within the community
> sentencing judge has to determine that public safety would NOT be
jeopardized by imposition of a CSO (condition precedent)
1. risk of offender re-offending
2. seriousness of consequences of any possible re-offending
> If sentencing judge = convinced that stat. requirements in s.742.1
satisfied THEN analysis of sentencing principles in s.718 should
be undertaken to determine whether CSO is appropriate in
- CSO may express society’s condemnation of offender’s act, this
MAY satisfy “denunciation”
- Sometimes custodial term of imprisonment will better express
punitive objectives
- CSO will usually better express rehabilitation, reparation to victim
and promote responsibility
- CSO not necessary less onerous than “real jail” and terms generally
longer in duration that real jail (R v Holmes 2009)
> Over 80/Impaired Driving – hybrid offence with increasing of severity
of penalties – conditional sentence available
- impaired driving is found by observation – when police officer has a
reasonable suspicion of intoxication – either drinking or drugs, they
may pull the individual over
- over 80 is discoverable through an intoxilizer
> Assault – hybrid – discharge/ suspended sentence/ fine/ fine and
probation/ jail/ jail and probation/ jail + fine – can also ask for ancillary
> Aggravated assault – hybrid offence – ancillary order – max 14 years
> Theft – hybrid: summary = 6 months/$5k fine; indictable = 10 years
(over $5k) and 2 years (under $5k)
> Mischief – hybrid
> B + E into a dwelling home = indictable; elsewhere = hybrid
> 1st degree murder – planned and deliberate – any offence such as sexual
assault, B+E committed while death occurs bumps the offence up to 1st
degree – as well if a police officer/prison guard is killed – life in prison
with parole at 25 years
> 2nd degree murder – deliberate – life in prison with parole at 10 years
> manslaughter – not deliberate but foreseeable that death would occur –
sentence depends on whether a firearm was involved –culpable homicide
that is not murder/infanticide – 4 years and DNA and weapons
prohibition = necessary
> Hearsay/Second hand evidence – if not admitted for the truth of its
contents or an exception, or the principled approach applies
> Direct evidence – evidence going directly to the proof of an actual fact in
issue ie. If the only issue at trial is ID and the witness says “I saw him do
it” - 2 possible sources of error: witness is lying or mistaken
> Circumstantial evidence – inference must be made in order for the
evidence to be useful to the trier of fact – DN necessary prove anything
ie. Motive, capable of the offence, etc.
> Character evidence – where it is relevant such as a defamation case or it
is suggesting that the person is of bad character BUT only where the
character has been put forward by the defence as being good – have to
consider the probative and prejudicial value
> Similar fact evidence – presumptively inadmissible – attempts to show
that an individual is more likely to have done the offence as they have
had similar instances in the past – consider the probative versus
prejudicial effect
R v Khelawon:
1. an out of court statement is hearsay if
2. it is adduced to prove the truth of its contents AND
3. there is no opportunity for a contemporaneous cross-examination
of the declarant
> Hearsay = presumptively inadmissible HOWEVER, if hearsay is
admitted in evidence, it does not require a limiting instruction b/c the
entire purpose of admitting it is to prove the truth of contents
Exceptions – before the principled approach BUT presumptively still in
place (R v Mapara)
> business records exception – Canada Evidence Act s.30 // R v Wilcox
> declaration against own interests – R v O’Brien
> declaration of present state of mind - R v Griffin
- state of mind must be relevant
- statement must be made in natural manner
- statement must not be made under circumstances of suspicion
> dying declarations – R v JR
- dying person is assumed reliable as has lost all reason to lie
> past recollection recorded – R v JR
> prior identification evidence – R v Swanston
> res gestae
- includes words/phrases that either form part of, or explain, a physical
act and exclamations that are so spontaneous as to belie concoction
> statement of intent
- particular subcategory of a declaration of present state of mind
Principled Approach – R v Khelawon
> uses a test of necessity and reasonable reliability – means that the
hearsay evidence MUST BE
1. necessary
- person whose assertion if offered may now be dead, out of
jurisdiction or otherwise unavailable for purpose of testing
- unable to recollect the information – R v Khan
2. meet a threshold of reliability – R v Khelawon
- inherent trustworthiness: circumstances at the time the declaration
was made that make it more likely the declarant was being truthful
- sufficient testability: circumstances either making the hearsay
evidence sufficiently testable by the trier of fact, or which provide
adequate substitutes for testability
> although presumptively inadmissible, the presumption can be rebutted if
the Crown satisfies the trial judge, on a balance of probabilities, that in
the context of the particular case the probative value of the proffered
evidence with respect to a particular issue outweighs the potential
prejudicial effect and thereby justifies its reception – R v Handy
Probative Value
1. strength of the evidence that the similar facts happened
2. extent to which the similar fact evidence supports the inference that the
Crown wants the trier of fact to draw
3. extent to which the SFE is a material issue
Prejudicial Value
Moral prejudice – concern that the prohibited inference will be made or that
the jury will punish the accused for past unpunished deeds
Reasoning prejudice – unduly complicating the trial with additional
facts/issues; asking the accused to defend periods of life not at issue in trial
Key issue: collusion which goes to the heart of probative value – air of
reality of collusion triggers burden of proof on Crown to show that there
was no collusion
> Corbett Application
- defence applies to have accused’s record excluded from the record
or parts of it censored
- criminal record usually considered admissible – in determining
whether to censor it, look at nature of the conviction; remoteness in
time before court; boils down to credibility contest; record suggests
person would lie under oath
> Any evidence from which one or more inferences have to be drawn to
establish material facts
No burden to prove every piece on a standard BARD, in order to
convict on a circumstantial case, judge must be satisfied BARD that the
only rational inference drawn from the circumstantial evidence is one of
guilt – R v Griffin 2009 SCC
> Circumstantial evidence may be used to support the inference of
innocence as well as guilt so long as the probative value outweighs
prejudicial effect and it is not given undue weight
> Examples: motive // opportunity // means, capability // post-offence
conduct // knowledge and state of mind
Mohan Factors
- logical relevance of the expert’s opinion
- necessary in assisting the trier of fact
- expert is properly qualified
- no exclusionary rules prevent the evidence from being admitted
 Prior inconsistent statements are admissible subject to limitations imposed by
sections 10 and 11 of the Canada Evidence Act
 Can bring an inconsistent statement to a witnesses attention at trial and give
them the opportunity to explain the inconsistency
 If the witness doesn’t adopt the it, then all that can be shown is that there is
an inconsistency and this goes to the witness’ credibility – best way to
impeach them
 KGB application – where witness recants from a prior statement and adopts
a new version of events
Charter sections 8
- Everyone has the right to be secure against unreasonable search or
o DN apply to every S/S, rather the right focuses on the action being
unreasonable on the basis that it violates the expectation of privacy
that a reasonable person would have
- at CL, when police carry our lawful arrest, they have authority to
carry a search incident to arrest – without needing separate and
additional grounds for the search – must be connected to a
criminal justice objective and must not be abusive or used to
intimidate – Cloutier
o Individuals have different expectations of privacy depending on
where the search occurs – R v Feeney SCC found that entry into a
private home w/o a warrant constitutes a violation of s.8
o Seizure = “taking of a thing from a person by a public authority
w/o that person’s consent” – R v Dyment (took blood while
unconscious and charged with over 80)
Charter section 24
(1) anyone whose rights or freedoms, as guaranteed by this Charter,
have been infringed or denied may apply to a court of competent
jurisdiction to obtain such remedy as the court considers
appropriate and just in the circumstances
(2) Where, in proceedings under ss.1, a court concludes that evidence
was obtained in a manner that infringed or denied any rights or
freedoms, the evidence shall be excluded if it established that,
having regard to all circumstances, the admission of it in the
proceedings would bring the administration of just into disrepute
R v Grant factors determine whether admitting evidence would
bring the administration of justice into disrepute on BOP
1. seriousness of the breach
2. impact of the breach on the protected interests of accused
3. society’s interests in the adjudication of the case on its merits
Section 7 – right to life, liberty and security of the person – includes the right to
make full answer and defence // requirement of mens rea // right to silence
Section 9 – right to not be arbitrarily detained or imprisoned
Section 10 – Everyone has to the right on arrest/detention
a) to be informed promptly of the reasons
b) to retain and instruct counsel without delay and be informed of the right
to do so
c) to have the validity of the determined and be released if not lawful
- section 10 is only triggered by an arrest/detention – R v Grant states
that detention refers to a suspension of an individuals liberty interest by a
significant physical or psychological restraint
Section 11 – protects a person’s legal rights in criminal and penal matters –
includes both criminal as well as regulatory offences
a) Any person charged with an offence… has the right to be informed
without unreasonable delay of the specific offence
b) … to be tried within a reasonable time
o criteria set out in R v Askov + R v Morin – accused bears a certain
onus to demonstrate actual prejudice as a result of delay
o R v Finta clarified that the period of “unreasonable delay” begins at
the time the charge is laid
o R v Jordan 2016 SCC – a delay longer than 18 months from when a
charge is laid to the trial’s completion = presumptively unreasonable
– any delay by the Crown beyond that time not justified by
exceptional circumstances = stay of proceedings
c) … not to compelled as a witness
- provides a right against self-incrimination – R v Herbert confirms that
this right extends to situations where police employ “unfair tricks” such
as sending undercover officers to elicit a confession – also R v Oikle
d) … to be presumed innocent until proven guilty
e) … not to be denied reasonable bail with just cause
f) …trial by jury
Section 24
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