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Criminal Procedure – Spring 2011 Final Outline Asif Abdulla Table of Contents Introduction ...................................................................................................................................................................... 6 Levels of Court in BC ..................................................................................................................................................................... 6 Types of Offences (Colourful Chart) ....................................................................................................................................... 6 Summary Procedure: ................................................................................................................................................................................... 7 Hybrid (Crown Election) Procedures:................................................................................................................................................... 7 Strictly Indictable Procedure:................................................................................................................................................................... 7 Factors: Crown Election (hybrid) ............................................................................................................................................ 8 Factors: Defence Election (Hyb-Ind and Strict-Ind; not 553 or 469 offences)......................................................... 8 Charge Approval Process.............................................................................................................................................. 9 Advantages of Crown Counsel Charge Approval: ............................................................................................................................. 9 Report to Crown Counsel: .......................................................................................................................................................................... 9 Charge Approval Standard ......................................................................................................................................................... 9 Two-Part Test: ................................................................................................................................................................................................ 9 1. Substantial Likelihood of Conviction ................................................................................................................................................ 9 2. Public Interest Requirement ..............................................................................................................................................................10 Approach: ........................................................................................................................................................................................................10 Police Appeal Procedures: ....................................................................................................................................................... 10 Charge Approval Options Available: ..................................................................................................................................... 11 Laying a Charge – Commencing Proceedings ...................................................................................................... 12 Swearing an Information .......................................................................................................................................................... 12 Statutory Process:........................................................................................................................................................................................12 Section 504 – Where Justice May Receive Information ...............................................................................................................12 Police Powers ................................................................................................................................................................. 13 Charter Rights Engaged ............................................................................................................................................................. 13 Questioning, Detention, Arrest and Interrogation .......................................................................................................... 13 Search and Seizure ...................................................................................................................................................................... 14 What is a Search? .........................................................................................................................................................................................14 What is a Seizure? ........................................................................................................................................................................................14 What is Privacy (REP)? ..............................................................................................................................................................................14 Warranted Searches ................................................................................................................................................................... 14 General Principles: ......................................................................................................................................................................................15 Type of Warrants: ........................................................................................................................................................................................15 Authorizations .............................................................................................................................................................................. 16 Types of Authorizations:...........................................................................................................................................................................16 Warrants vs. Authorizations: .................................................................................................................................................. 16 Warrantless Searches ................................................................................................................................................................ 16 Common Law Warrantless Searches: ..................................................................................................................................................16 Statutory Warrantless Search Powers ................................................................................................................................................17 Sealing Orders and Unsealing Orders .................................................................................................................................. 18 Exhibit Return and Detention ................................................................................................................................................. 18 Section 490:....................................................................................................................................................................................................18 Compelling Appearance and Judicial Interim Release ..................................................................................... 19 Powers of Arrest .......................................................................................................................................................................... 19 General / Civilian Powers of Arrest – s. 494.....................................................................................................................................19 1 Peace Officer Power of Arrest Without Warrant – s. 495 ...........................................................................................................19 Compelling Attendance ............................................................................................................................................................. 19 Accused Not Arrested: ...............................................................................................................................................................................19 Accused Is Arrested: ...................................................................................................................................................................................19 Bail Hearings ................................................................................................................................................................................. 20 Options at a Bail Hearing: .........................................................................................................................................................................20 Consent Release – s. 523(2)(c): .............................................................................................................................................................20 Criteria for Detention at Show Cause Hearing: ................................................................................................................. 20 Primary Ground - s. 515(10)(a) .............................................................................................................................................................20 Secondary Ground – s. 515(10)(b) .......................................................................................................................................................21 Tertiary Ground – s. 515(10)(c) ............................................................................................................................................................21 Police Release Critera: ...............................................................................................................................................................................22 Assessment and Description of the Criminal Record....................................................................................................................22 Evidence at JIR – s. 518(1) .......................................................................................................................................................................22 Orders That Can be Made at JIR .............................................................................................................................................................22 Burden and Reverse Onus ........................................................................................................................................................................23 Conditions .......................................................................................................................................................................................................23 Consequences of Detention .....................................................................................................................................................................24 Bail Breaches................................................................................................................................................................................. 24 Consequences:...............................................................................................................................................................................................24 s. 524 Warrants ............................................................................................................................................................................................24 s. 145 Breach Charges ................................................................................................................................................................................24 Reviews and Variations of Bail ............................................................................................................................................... 24 Arraignment and Case Management Prior to Trial/Prelim ........................................................................... 24 Criminal Case Flow Management Rules .............................................................................................................................. 25 Disclosure (see Disclosure Flow-Chart) .............................................................................................................................. 25 Crown ...............................................................................................................................................................................................................25 Defence.............................................................................................................................................................................................................25 Resolution Discussions.............................................................................................................................................................. 25 Judge Quinn, Administrative Judge for South Island.....................................................................................................................25 Appearance of accused: ............................................................................................................................................................. 25 Adjournments ............................................................................................................................................................................... 26 Election and Preliminary Inquiries ........................................................................................................................ 27 Defence Election of Mode of Trial .......................................................................................................................................... 27 Section 536:....................................................................................................................................................................................................27 Deemed Election – s. 565..........................................................................................................................................................................27 Re-Election – s. 561.....................................................................................................................................................................................27 Preliminary Inquiries ................................................................................................................................................................ 27 Availability......................................................................................................................................................................................................27 Requests for Preliminary Inquiry: ........................................................................................................................................................27 Purpose of a Preliminary Hearing: .......................................................................................................................................................27 Statement of Issues for Prelim – s. 536.3:..........................................................................................................................................27 What Happens at a Preliminary Inquiry – s. 535?..........................................................................................................................28 Hearsay at Prelims – s. 540(7): ..............................................................................................................................................................28 Defence Evidence in Prelim:....................................................................................................................................................................28 Committal to Stand Trial – s. 548(1)....................................................................................................................................................28 Applications – Pre-Trial & Other ............................................................................................................................. 29 Preferring the Indictment ........................................................................................................................................................ 29 Pre-Trial Conference .................................................................................................................................................................. 29 Supreme Court Rule 5: Pre-Trial Conferences: ...............................................................................................................................29 Applications Generally .............................................................................................................................................................. 29 Types of Applications: ...............................................................................................................................................................................29 Differences Between Applications: ......................................................................................................................................................30 2 Voir Dire ..........................................................................................................................................................................................................30 Applications Regarding Disclosure (see flow chart!) ..................................................................................................... 31 First Party / Stinchcombe Disclosure Obligations ..........................................................................................................................31 Third Party / O’Connor Disclosure Applications.............................................................................................................................31 s. 278.1 Third Party Record / Mills Applications: Sexual Offences .........................................................................................32 O’Connor Application vs. Mills Application ......................................................................................................................................32 Disclosure of Youth Records ...................................................................................................................................................................32 Unsealing Orders and Editing Affidavits and Informations to Obtain: ..................................................................................32 Applications Regarding Procedure (Conduct of the Trial) ........................................................................................... 33 Joinder Application .....................................................................................................................................................................................33 Severance Application ...............................................................................................................................................................................33 Change of Venue Application ..................................................................................................................................................................34 Recusal of Judge Application ...................................................................................................................................................................34 Removal of Counsel Application ............................................................................................................................................................34 Application to Quash Information / Indictment .............................................................................................................................35 Application to Amend Information / Indictment ...........................................................................................................................35 Conduct of Counsel & Pre-Trial Motions ............................................................................................................................. 35 Charter Applications and Remedies ..................................................................................................................................... 36 Section 24(1) – Remedies for Breach of Charter Rights ..............................................................................................................36 Section 24(2) – Applications to Exclude Evidence.........................................................................................................................36 Application to Strike Down Legislation for Unconstitutionality ..............................................................................................36 Grounds for Seeking Remedy under s. 24(1) or (2) ......................................................................................................................36 Procedures: ....................................................................................................................................................................................................36 Oakes Test (s. 1 Charter Saving) ............................................................................................................................................................37 Non-Charter Attacks:..................................................................................................................................................................................37 Evidentiary Applications .......................................................................................................................................................... 38 Application is Pre-Condition to Admissibility .................................................................................................................................38 Objections to Admissibility ......................................................................................................................................................................38 Residual Discretion to Exclude ..............................................................................................................................................................38 Application to Cross-Examine Complainants on Prior Sexual History ..................................................................................38 Applications – PCJ Trials vs SC Judge Alone vs. SC Judge and Jury ............................................................................. 38 Trial Management & The Mega Trial ...................................................................................................................... 39 Why Are Trials so Much More Complex Now? ................................................................................................................................39 What Are the Responses of Court, Counsel, Legal Aid and Parliament? ...............................................................................39 Jury Selection .................................................................................................................................................................. 40 Steps to Jury Selection Process: .............................................................................................................................................................40 Empanelling the Jury – Selecting Each Juror ....................................................................................................................................40 Challenge for Cause.....................................................................................................................................................................................40 Peremptory Challenges .............................................................................................................................................................................41 Swearing in Jurors .......................................................................................................................................................................................41 Jury Trial Procedure .................................................................................................................................................... 42 How Did we Get to a Jury Trial? .............................................................................................................................................................42 Arraignment / Re-Arraignment of Accused......................................................................................................................................42 Trial Sequence of Events ..........................................................................................................................................................................42 Getting a Witnesses Evidence Before the Courts ............................................................................................................. 44 Evidence by Audio/Video Appearance ...............................................................................................................................................45 Witness Accommodations ........................................................................................................................................................................45 Competence, Compellability and Capacity ........................................................................................................................................45 Sentencing........................................................................................................................................................................ 46 Resolution Discussions.............................................................................................................................................................. 46 The Guilty Plea ............................................................................................................................................................................. 46 Section 606 – Pleas Permitted ................................................................................................................................................................46 3 Withdrawal of Guilty Plea ........................................................................................................................................................................46 Kienapple Principle – Rule Against Multiple Convictions ...........................................................................................................46 Mandatory Minimums / Maximums & Sentence Ranges............................................................................................... 47 Maximums ......................................................................................................................................................................................................47 Minimums .......................................................................................................................................................................................................47 Sentencing Range.........................................................................................................................................................................................47 Purpose and Principles of Sentencing ................................................................................................................................. 47 Purpose of Sentencing – s. 718...............................................................................................................................................................47 Fundamental Principles in the Criminal Code .................................................................................................................................47 Other Significant Principles .....................................................................................................................................................................48 Aggravating and Mitigation Factors...................................................................................................................................... 48 Aggravating Factors: ..................................................................................................................................................................................48 Mitigating Factors ........................................................................................................................................................................................49 Sentencing Options ..................................................................................................................................................................... 49 Absolute Discharge s. 730 ........................................................................................................................................................................49 Conditional Discharge – s. 731(2).........................................................................................................................................................49 Suspended Sentence with Probation – s. 731(1)(a) ......................................................................................................................50 Fines – s. 734 .................................................................................................................................................................................................50 Fine With Probation – s. 731(1)(b) ......................................................................................................................................................51 Conditional Sentence Order (CSO) – s. 742.1 ...................................................................................................................................51 Jail (Provincial, Federal, Intermittent) ................................................................................................................................................52 The Sentencing Hearing ............................................................................................................................................................ 52 Adjournment of Sentencing – s. 720 ....................................................................................................................................................52 Sentencing Proceedings and Disputed Facts ....................................................................................................................................52 Pre-Sentence Reports – s. 721 ................................................................................................................................................................53 Psychological Assessment ........................................................................................................................................................................53 Victim Impact Statements – s. 722 & 722.2 ......................................................................................................................................53 Offender May Speak ....................................................................................................................................................................................54 Imposing Sentence ......................................................................................................................................................................................54 Specific Issues During Sentencing ......................................................................................................................................... 54 Dead Time .......................................................................................................................................................................................................54 Attempts and Accessories After the Fact – s. 463 ..........................................................................................................................54 Consecutive vs. Concurrent Sentences ...............................................................................................................................................54 Joint Submissions ........................................................................................................................................................................................55 Notice to Seek Greater Punishment – s. 727(1) ..............................................................................................................................55 Ancillary Sentencing Orders.................................................................................................................................................... 55 Firearms prohibitions ................................................................................................................................................................................55 Driving Prohibitions ...................................................................................................................................................................................55 DNA Order ......................................................................................................................................................................................................55 Sex Offender Information Registry Act Order – s. 490.011 – s. 490.032 ..............................................................................56 Prohibition Order: Location/Employment/Volunteer ................................................................................................................56 Restitution Order .........................................................................................................................................................................................56 Forfeiture of Property / Weapons Seized..........................................................................................................................................56 No Contact During Custodial Sentence ...............................................................................................................................................56 Parole Ineligibility – s. 743.6 ...................................................................................................................................................................56 Victim Fine Surcharge – s. 737 ...............................................................................................................................................................57 Breaching Probation Order ..................................................................................................................................................... 57 Revoking a Suspended Sentence or Conditional Discharge .......................................................................................................57 Breaching a Conditional Sentence Order (CSO) ............................................................................................................... 57 ASSESSING & DESCRIBING A CRIMINAL RECORD ............................................................................................................. 58 Making inferences about the accused: ................................................................................................................................................58 Criminal Defence Practice .......................................................................................................................................... 59 Bail Hearings..................................................................................................................................................................................................59 Elections ..........................................................................................................................................................................................................59 4 Plea Bargaining .............................................................................................................................................................................................59 Sentencing ......................................................................................................................................................................................................59 Appeals ............................................................................................................................................................................. 60 Guest Speakers on Appeals ...................................................................................................................................................... 60 From the class outline: .............................................................................................................................................................. 60 Dangerous & Long Term Offenders ........................................................................................................................ 62 Mentally Disordered Offenders................................................................................................................................ 63 EXAM PREP: ..................................................................................................................................................................... 64 Youth Court – Youth Criminal Justice Act ............................................................................................................. 66 5 Introduction Levels of Court in BC 1. Justice of the Peace Court a. Traffic Court (statutory) b. Justice of the Peace not a judge c. Jurisdiction over compelling appearance, trial and sentencing of summary conviction offences d. If it is a complex matter or raises issues of Charter protection, then it is raised to the Provincial court 2. Youth Court - Provincial Court Judge a. Charges proceed by way of information b. Court has jurisdiction over compelling appearance, trial and sentencing for summary and indictable matters; which may be joined on one information c. If Crown seeks adult sentence, the accused may elect trial by Superior Court Judge, with or without jury, or may chose to proceed with a Provincial Court Judge i. If Superior court chosen, the Provincial court judge has jurisdiction over the prelim (if occurs) ii. If PCJ chosen, PCJ has jurisdiction over the trial and sentencing and discretion over whether or not to impose adult sentence d. Appeals from PC go to SC, and appeals from SC go to Court of Appeal 3. Provincial Court (statutory) – PCJ a. Jurisdiction over compelling appearance, trial and sentencing of summary conviction offences, absolute jurisdiction indictable offences (s. 533), all other indictable offences where the accused elects trial by PCJ b. Summary and non-absolute indictable offences cannot be joined on a single information c. Appeals from summary conviction trials go to the SC; Appeals from indictable trials go to CA 4. Supreme Court of BC – SCJ a. Trial Court – Inherent Jurisdiction i. Charges proceed by way of indictment ii. Jurisdiction over compelling appearance; trial and sentencing; ALSO broad inherent jurisdiction to direct proceedings and make rulings on any/all issues that may arise iii. Appeals go to the BC CA b. Summary Conviction Appeals i. Statutory powers to hear, and decide appeals from provincial court ii. Further appeal goes to BCCA 5. SCC – subsequent appeals after BCCA a. Final appellate authority for all courts Types of Offences (Colourful Chart) 1. Summary - PCJ a. Less Serious Offences b. No Crown election; No defence election; No preliminary hearing c. Trial occurs in front of a PCJ; Appeal is heard in the SC d. Sentencing: s. 787 – max 6 months & $5000, unless otherwise specified by summary offence 2. Hybrid a. Crown has election to proceed summarily or by indictment i. Where by summary, see above b. Where Crown elects to proceed by indictment: i. Absolute Jurisdiction Offences (s. 553) - PCJ (s. 536(1)) 1. No defence election (s. 536(1) & (2)) 2. No preliminary inquiry (s. 536(4) is not triggered) 3. Includes less-serious indictable offences (theft under $5k, etc) ii. Non-553 Offences 1. Defence may elect trial by PCJ; trial be SC Judge; trial by SC Judge and Jury (s. 536(2)) 2. Preliminary hearing not available for PCJ elections (s. 536(3) – straight to trial) 6 3. SC - Preliminary hearing is available where requested by C/D – held in PC (s. 536(4)) 3. Indictable a. No Crown election – proceed by indictment only b. Absolute Jurisdiction Offences (s. 533) – PCJ (s. 536(1)) – follow same path as above c. S. 469 Offences – serious offences – SC Judge and Jury unless C & D consent otherwise (s. 473) i. No defence election; Prelim Inquiry avail upon request (s. 536(4)) d. Non 553 and Non 469 Indictable Offences i. Defence elects trial by PCJ; trial by SC Judge; trial by SC Judge and Jury (s. 536(2)) ii. Prelim Inquiry not available for PCJ elections (s. 536(3) – straight to trial); iii. SC – Prelim Inquiry available where requested by C/D (s. 536(4)) 4. Direct Indictment a. With consent of AG or DAG or with Judges orders – s. 577 b. Presumed to be SC Judge and Jury unless D re-elects SCJ (s. 565(2)) i. Crown consent is required if it is a s. 469 offence c. No prelim inquiry – s. 536(4) is expressly subject to s. 577 NOTE: Indictable appeals are all heard at the Court of Appeal (both hybrid-indictable and strict indictable) – s. 674 Summary Procedure: 1. Laying an information pursuant to s. 788 a. S. 795 Rules of compelling appearance, jury trial and mental disorder apply 2. No election by either Crown or Defence 3. Only the summary conviction court may try the accused (s. 785) 4. Default sentencing provision – s. 787 (6m & $5k) – note, was 2k before Oct 1, 2008 a. Unless offence provision states differently 5. Appeals go to the SC Hybrid (Crown Election) Procedures: 1. If Crown elects to proceed summarily, same procedure as above a. Note: if Crown does not expressly state it is proceeding by indictment, Crown is presumed to be proceeding summarily – “BY INDICTMENT” appears at the top of the information if elected 2. If Crown elects to proceed by Indictment a. If not 553 – Absolute Jurisdiction Offence, then D may elect mode of trial pursuant to s. 536(2) b. Sentencing varies by offence – sometimes sentencing is in it’s own provision c. Appeals go to the BCCA – s. 674 Strictly Indictable Procedure: - No Crown election for indictable offences Absolute Jurisdiction offences (s. 553) – s. 201(1) gaming house; s. 202 betting, pool-selling etc; s. 206(1) lotteries, or games of chance; s. 210(1) – keeping common bawdy house o Strange that this category exists, because strict indictment is for serious crimes If not 553, D can elect mode of trial Sentencing is also based on specific code provisions S. 469 Offences o These are the big crimes – murder, treason, alarming her majesty, etc o Only tried in SC by judge and jury – subject to re-election s. 473 for judge alone with Crown consent 7 Factors: Crown Election (hybrid) - - Generally, Crown wants to proceed summarily if at all possible o Lower cost; fewer delays; fewer opportunities for the matter to be derailed; easier of witness; secures expeditious proceedings for a youthful accused; avoid victim having to testify twice (prelim) Sentencing limitations with summary proceedings o Note, summary offences have been gaining lengthier sentences recently: 18 months max in some cases: ACBH/AWW 267; Unlawfully causing bodily harm 269; sexual assault 271(b), etc These allow the Crown to achieve public interests while still proceeding sumarily There may be value in the opportunity to assess the case via preliminary hearing Factors: Defence Election (Hyb-Ind and Strict-Ind; not 553 or 469 offences) - - - Prelim Inquiry may be useful to gain a statement from a witness; or to assess evidence or work out a plea Judge vs. Judge and Jury o Is the defence a legal argument better suited for a judge or is it fact-driven? o Judge may be favourable where D will not be putting forth a defence – claiming RD from Crown’s case o Which witnesses are more sympathetic? If D’s witnesses are, then maybe jury would be better? o Excluded defence statements will have been heard by the judge, but will not be put before a jury o If D is testifying, is there a criminal record? Prejudice to the jury more so than a judge? Similar concern for where D is not taking the stand at all o Unfavourable media coverage might push towards having judge alone o Expert witnesses may be over-valued by a jury, so if D has strong expert witnesses, that would be good for them, and vica versa Provincial Court vs. Supreme Court o PC is speedier and less formal o Jury trials are slow and expensive – cost to the D may be a factor to consider o Bail? Is D being detained throughout? General considerations: o Cost to client o Custodial status of accused o Seriousness of the offence o Counsel preference: comfort in the forum / effectiveness in front of judge or jury 8 Charge Approval Process - Conducted by the Crown in BC Before a charge is laid, a Crown counsel must review the product of t the police investigation to assess whether sufficient evidence has been gathered to support laying charges, and if so, which charges In most other provinces, police lay the charge and forward the file to the Crown Exception: where police approve charges via Tele-bail - Occurs on the weekend where police wish to keep that person in custody or wish to impose conditions - Crown still conducts a charge approval to either continue with the charges, lay different changes, or drop them Advantages of Crown Counsel Charge Approval: 1. Charges are very serious, and should be conducted by persons with legal training, removed from investigation a. Charges may have a serious effect on the accused’s social standing 2. Ensures that only provable charges enter the system 3. Prevents charges that are not yet ready for court and require additional investigation Report to Crown Counsel: - Police submit a list of recommended charges Witness list with contact information Information on accused with all available particulars Synopsis of the events in question; Detailed narrative Civilian witness statements and summaries; Police reports, will-say statements & notes Statements of the accused; forensic reports; exhibit list; photos or photocopies of exhibits Photographs; Breath tech certificates; Criminal/Driving record Medical; Autopsy reports Release documentation; surveillance reports; wire tap logs; search warrants; 911 transcripts Note: Any information that would assist the Crown in the evaluation of any infringements of D’s Charter rights should be included as well Charge Approval Standard Two-Part Test: 1. Substantial likelihood of conviction 2. Required in the public interest - The charge approval standards are assessed continuously throughout the prosecution Specifically, after a preliminary hearing: o Crown’s case should be clarified as to its strength with respect to the preliminary hearing o May look different on paper than it’s appearance through the witness testimony available 1. Substantial Likelihood of Conviction - Must have “strong solid case of substance to present to the Court” 1. What admissible evidence is available? 2. What is the likely weight that will be given to that evidene? 3. What is the likelihood of success of viable defences? 9 2. Public Interest Requirement - Must weigh the relevant factors in determining whether there is a required public interest in pursuing the charges Exceptional Category: Where there is almost substantial likelihood of conviction under part 1 of the test, and the public interest in moving forward is very strong, the test is satisfied o Example: violent offender, repeat offender, public protection requires the charge to be heard, etc In favour of Prosecution: - Seriousness - Signifcant sentence for the crime - Considerable harm done - Weapon involved - Vulnerability of the victim - Prior related conviction (alternative measures given previously) - Breach of a trust - Significant culpability in relation to other parties - Premeditation - Motivated by bias - Age difference between the victim/offender - Bound by Court order at the time of the offence - Likely to be repeated - Widespread local problem - Security of justice system personnel - Terrorism involvement - Criminal organization offence Against Prosecution: - Small penalty likely - Desired result can be achieved without prosecution (alternative measures) - Minor harm or loss, single incident - Technical offence; obsolete law Other Factors to Consider: - Circumstances of the victim (age, health, etc) - Circumstances of the accused - Expense of prosecution (not to be over emphasised, but to be noted) - Time since offence - Need to maintain confidence in the criminal justice system Approach: 1. Timeliness is particularly important when the accused is in custody, police suggest that a warrant be requested, conditions imposed by the police will expire if charges not laid, or violence is involved 2. All reasons for decision should be documented 3. Consult with other Crown counsel where appropriate Police Appeal Procedures: 1. 2. 3. 4. Crown who originally assessed charge approval Admin Crown Regional Crown Assistant Deputy Attorney General 10 Charge Approval Options Available: 1. No charge a. Where charge approval standard is not met 2. Return to Police for Further Information or Follow-Up a. No decision given for the interim, but seems as though standard would be met with additional efforts b. Returned to police with outline of what would be required before charges are to be considered c. Kineapple – recall that once a person is tried for an offence, cannot charge them again 3. Caution Letter a. Used for minor offences, where there are no prior convictions b. Seriousness/age may warrant a caution letter despite one or two priors 4. Diversion / Alternative Measures a. Not a solution to a weak Crown case – must still apply the substantial likelihood of conviction test b. Alternative measures need to be considered throughout just like the charge approval is an ongoing test c. Factors to Consider – similar to those in the public interest component of charge approval: i. Danger to the public ii. Criminal record or past diversions iii. Weapon iv. Vulnerable victim v. Significant age between victim/offender vi. Breach of trust vii. Need to maintain public confidence d. Offence Categories: i. First-time offenders of category 4 offences – presumed suitable for diversion/ alt measures ii. First-time and category 3 offences – often diverted when not inconsistent with public safety iii. Category 2 – only diverted with Regional or Deputy Regional Crown approval iv. Category 1 – Not allowed for murder/manslaughter; rarely for other cat 1 with written consent from ADAG v. Other policies also have statements regarding the use of alternative measures; specifically child abuse, criminal harassment, sexual assault, spousal assault, etc 5. Approve Charges and Refer to the Court a. Either the charges recommended by police, or different ones b. Both components of the charge approval test must be satisfied c. Finding the correct charge comes with experience i. What best captures the events in question? ii. Best captures the mischief that requires criminal sanction? iii. Overcharging must be avoided 1. Not proper 2. Can result in charging everything and proving nothing 3. Shotgun approach is often more harmful to the Crown – a clear narrative is easier to construct with a few strong charges rather than every charge possible to prove 4. Make a decision! Which charge best captures the wrongful conduct? 11 Laying a Charge – Commencing Proceedings Swearing an Information 1. By Police, probation officers, regulatory investigators (welfare, fisheries, etc) 2. By Private citizens Statutory Process: Police: - Sections 504 + 507; or 504 + 508 - Report to Crown Counsel is submitted even if accused is incarcerated and Crown prepares docs - Charge Approval Process is carried out before information is presented to JP - Only peace officers can lay information under section 505 After Hours: - Section 508.1 – tele-hearin - Police prepare information and speak to bail, sometimes defence counsel Private Informations: - Sections 504 + 507.1 - Once sworn, the JP determines if there should be a process hearing or not o If no hearing, no process, no further involvement of the courts o If hearing, Crown given notice and makes decision on merits of the prosecution If standard met, Crown assumes conduct and proceeds to trial If not, Crown directs stay of proceedings (NOTE: Crown has unfettered discretion to direct stay of proceeding after process hearing, but it is an abuse of process to stay prior/during hearing and so deprive a private informant of judicial hearing) - So the charge is laid without the prior screening of the Crown Content of Informations: - Indictments – ss. 581-587; 589-591; 601 - Informations – s. 789 o Should have a separate count for each offence o Detail about the time/place of actual charge o D can ask for particulars where insufficient information is present - Limitations - s. 786(2) o No statute of limitations on indictable offences o Summary offences – six months from the date of the offence Section 504 – Where Justice May Receive Information - Anyone who, on reasonable grounds believes that a person has committed an indictable offence, may lay an information before a justice, where it is alleged: o (a) Person has committed an indictable offence anywhere that can be tried in the jurisdiction and that person is or resides within the jurisdiction o (b) Person has committed indictable offence within the jurisdiction, wherever that person may be now o (c) Person anywhere unlawfully received property that was unlawfully obtained within jurisdiction OR o (d) Person possesses stolen property within the jurisdiction 12 Police Powers Charter Rights Engaged Section 7: - Right to silence Section 9: - Everyone has the right not to be arbitrarily detained or imprisoned Section 10: - (a) Must be informed of reason for detention - (b) Must be informed of right to retain/instruct counsel and be given reasonable opportunity - (c) Right to remedy of habeas corpus Section 8: - Everyone has the right to be secure against unreasonable search or seizure - Hunter v. Southam (1984 SCC) o S. 8 does not confer powers upon the state, but confers protections to the individual o Protects the reasonable expectation of privacy o Protects people, not places o Rules: Where feasible to obtain prior authorization, such authorization is a pre-condition for a valid search and seizure Presumption that warrantless search is unreasonable; seeking party must justify in rebuttal Prior authorization allows for conflicting interests to be assessed and prevent unjustified search Assessment of prior authorization should be from an impartial person (not necessarily a judge) State’s interest in detecting crime begins to prevail over individual interests where credibly-based probability replaces suspicion o Minimum standard consistent with s. 8 – reasonable and probable grounds, established on oath, that an offence has been committed and that there is evidence to be found at the place of the search Questioning, Detention, Arrest and Interrogation Questioning: - Police generally always have a right to ask questions (R v. Kay, BCCA) - No requirement generally to answer the questions; in fact, unless detained, generally not even required to listen to the questions. (Note: exceptions exist under the Motor Vehicle Act) Detentions: - Detention, short of arrest, is allowed in certain circumstances - Rights pursuant to sections 10(a) and 10(b) of the Charter are triggered - Investigative detentions and cursory search for officer safety is allowed (R v. Mann) - Random Road Side Stops: for driving-related reasons only – such as checking driver’s licence, insurance, sobriety tests and mechanical fitness - Roadblocks Arrest: - Police powers to arrest are covered under s. 495 of the Criminal Code – see next section below Interrogation: - Police are entitled to attempt to obtain a statement from suspects - Question as to how far they can go in these attempts; accused does not have right to have counsel present while police attempt to elicit a statement (R v. Sinclair SCC 2010) 13 Search and Seizure What is a Search? - An examination, by an agent of the state, which constitutes an intrusion upon an individual’s reasonable privacy interests – Evans (1996 SCC) What is a Seizure? - The taking of a thing from a person by a public authority without that person’s consent – Dyment (1988 SCC) A non-consensual taking by state officials of an item in which the citizen has a reasonable expectation of privacy – Borden (1994 SCC) What is Privacy (REP)? - Privacy may be defined as the right of the individual to determine for himself when, how and to what extent he will release personal information about himself – Duarte Patrick (2009 SCC) – distinguishes different aspects of privacy: Personal; Territorial; and Informational When Does a Reasonable Expectation of Privacy Exist? - Belnavis (1997 SCC) – Whether, in all the circumstance, an accused has a reasonable expectation of privacy inclue, but are not restricted to the following: o Presence at the time of the search; o Possession or control of the property or place searched o Ownership of the property or place o Historical use of the property or item o Ability to regulate access, including the right to admit or exclude others from the place o Existence of a subjective expectation of privacy; AND o The objective reasonableness of the expectation - Patrick o 1. What was the subject matter of the search? o 2. Did the accused have a subjective expectation of privacy? o 3. Was the subjective expectation of privacy objectively reasonable? The place where the alleged search occurred Was informational content of the subject matter in plain view or public view? Was the subject matter abandoned? Was the information already in the hands of the third parties? If so, was it subject to an obligation of confidentiality? What was the degree of physical intrusion? Whether the search, or the use of the evidence gathering technique, was itself objectively unreasonable? AND Whether the subject matter exposed intimate details of lifestyle or information of biographical nature? o Here, garbage was abandoned; no real breach here except for territorial air-space Warranted Searches Warrant: A warrant is judicial authority to Search for / Seize / Obtain specific things or information, related to a specific offence, in / from a specific place or person - Recall: Hunter v. Southam – Minimum standard consistent with s. 8 is reasonable and probable grounds, established on oath, that an offence has been committed and there is evidence to be found at place of the search 14 General Principles: 1. Information on Oath Required – reasonable grounds that are sworn to be true 2. Warrant – Judges order; gives authority with limitations 3. Reasonable Grounds to Believe Each of the Following: a. Specific seizable things or information exists b. Related to the an offence that has been or will be committed c. In or from a specific person or place 4. Ex-Parte Application – information must be full, fair and frank – high ethical obligation 5. Judge has Discretion Not to Grant 6. Test for Review: a. Not whether the reviewing judge would have made the same order, but whether the issuing judge COULD have made the order made Type of Warrants: s. 487: Search Warrant - Most common search warrant used - Offers discretion to the judge “may…issue a warrant” o Based on the balance between intrusion of privacy and severity of the crime - Used for searching vehicles, houses, offices, etc – very broad! - Limitations: o Only for past offences; searches of places only, not people; notice is required - Authorizes seizing things, not about using techniques or devices - broad s. 487.01: General Warrant - Very broad; authorize: video warrants, information (not just evidence), anticipated offences (not just past ones) - Use of techniques and devices or doing of anything, not just searching and seizing - There must be no other section that authorizes the proposed action, and techniques cannot interfere with bodily integrity s. 487.012: Production Order - Requires a person to ‘produce’ the record from data - Generally used for business records, medical records etc. – allows flexibility in production of records s. 487.05: DNA Warrant: - To get a bodily substance from a suspect to compare against DNA found at a scene/location related to offence s. 487.092: Impression Warrant: - Take impressions of some body part of the suspect to compare against impressions left at scene/relevant location s. 492.1: Tracking Warrant: - Authorizes placing of tracking device on something that you know the location of s. 492.2: Dial Number Recorder: - Installation of a device that records what phones are calling or being called by a phone s. 529 & 529.1: Feeney Warrants: - Authorize entry into dwellings to arrest a person; used by police when applying for arrest warrant s. 256: Blood Warrants (impaired > .08) - For serious motor vehicle accidents where RPG to believe accused impaired over 0.08. Many requirements s. 11 Controlled Drug and Substances Act - Most common warrants 15 Authorizations Authorization: Another name for an order of the Court – authorizes named persons to do certain things Types of Authorizations: - - One Party Consent Authorization – s. 184.2 o Where one of the parties to the conversation have consented to the interception o Would be unreasonable search or seizure of done without authorization Full (non-consent) Authorizations – s. 186 o Where none of the parties have consented to their conversations being intercepted o Wiretap – application made pursuant to s. 185 o Application made by the Crown, but affidavit sworn by peace officer Officer Safety Pack – s. 185 o Where a wire is worn for safety reasons – usually undercover Exigent Circumstances – s. 184.4 o Interception of private communication without authorization where restrictive criteria are met Immediately necessary to prevent serious harm Emergency Authorization – s. 188 o Obtained by having a specially designated officer appear before SC judge to testify why private communications need to be intercepted but why there’s not time for an affidavit Note: Crown has an advisory role within all applications Warrants vs. Authorizations: 1. 2. 3. 4. 5. 6. 7. 8. 9. Peace officer vs. Crown application Level or judicial authority required Standard that must be met Past or future offences What the item gives authority to do Application to which offences Information of the offence vs. evidence of the offence Application can be made by telephone or in-person Some form of emergency provision available Warrantless Searches Common Law Warrantless Searches: - The CL provides for a variety of warrantless search powers including: Incidental to Arrest - Peace officer has right to search a lawfully arrested person for weapons, evidence of the offence and escape tools - Does not require grounds for belief that anything will be found – Cloutier (1990 SCC) - Search for evidence must be for evidence of the offence for which the individual was arrested Incidental to Detention (Mann 2004 SCC) - Existence of a CL investigative detention power where officer reasonably believes the suspect person detained is involved in a crime under investigation and detention is reasonably necessary - There is a power to search incidental to detention - Police can conduct investigatory questioning that does not necessarily result in detention - Test from Mann 16 1. Did officer reasonably suspect the individual was connected to the criminal activity under investigation? If so, the officer can detain the individual o 2. Was there a logical possibility that the individual possessed an item, which could have been used as a weapon? If so, the officer can conduct a pat down o 3. Was there some reason for the officer to go beyond a pat down? Was there a logical possibility that the individual possessed an item, which could be used as a weapon that could not be detected through a pat down search? If so, officer can proceed beyond pat down Clayton & Farmer (2007 SCC) – individual suspicion standard (clear nexus between individual and on-going criminal offence) is not required. A rational connection between the steps undertaken by the police and the nature of the offence under investigation, including the degree of risk to public safety – was the detention reasonably necessary in the totality of the circumstances? o - Abandoned Property - Where an individual has ceased to have a REP in something, its acquisition by the police constitutes a ‘gathering’ rather than a seizure such that s. 8 of the Charter has no application (Dyment 1988 SCC) - Police may retrieve items such as Kleenex / cigarette butts discarded by suspect undetained (Stillman 1997 SCC) - Patrick – D did everything required to rid himself of the items taken as evidence Consent - Difficult to uphold in court – police love it, Crown hates it - Wills (1992 ONCA) – if an individual chooses to give something to a police officer, it is a misuse of language to say that the police officer seized it, rather the officer simply received it - Borden (1994 SCC) – Elements of a valid consent seizure/search: o Consent, express or implied o Consenting person had the authority to give the consent o Consent voluntary in the sense that it was not the product of police oppression, coercion or external conduct negating freedom to chose o Consenting person aware of nature of police conduct to which was consenting o Consenting person aware of potential consequences of giving consent Public Safety / 911 Hang-Up - R. v. Godoy (1999 SCC) – 911 hang-up, police attended; accused refused entry; police forcibly entered and found abused wife; accused resisted arrest o Police have a duty to protect life and to investigate 911 calls o Depending upon the circumstances of each case, this duty may justify forced entry to a dwelling o However, intrusion must be limited to the protection of life and safety Plain View - CL power to seize (not search) anything that is in plain view o Officer was lawfully in the location at which the item was observed o Item was discovered inadvertently o Incriminating nature of the item was immediately apparent (Neilson 1989 NBCA) o Applies unless significance not apparent until closely inspected Statutory Warrantless Search Powers 1. Plain View Doctrine – s. 489 a. Broader than CL duty which requires that evidentiary value be immediately apparent 2. Firearms Seizure Powers – s. 117 3. Warrantless Emergency Tracking or Search Warrant – s. 487.11 4. Exigent Feeney Entry – s. 529.3 17 Sealing Orders and Unsealing Orders - s. 186 – Documents related to Part 6 applications are automatically sealed s. 187 – Procedure to be followed for opening and vetting the documents Application for sealing order must be made in relation to non-Part 6 documents (s. 487.3) Exhibit Return and Detention Section 490: - Mini-code with respect to the detention, return and/or forfeiture of seized items not in custody of the Court o Seizure of things in the course of duty o Imposes obligations on officer taking the items S. 489.1 – requires return of the thing seized o If the owner is known and possession is lawful o Unless it is required for investigation If thing seized is required for investigation, officer must file a report as soon as practicable Court can authorize detention for limited periods, until proceedings commence Positive duties apply to return the seized items, where no longer needed for evidence 18 Compelling Appearance and Judicial Interim Release Powers of Arrest General / Civilian Powers of Arrest – s. 494 - (1)(a) Anyone who “finds committing” – an indictable offence (Interpretation Act deems hybrid offences to be indictable until Crown elects otherwise) (1)(b) In fresh pursuit of anyone on reasonable grounds believed to have committed a criminal offence (2) Anyone found committing offence on or in relation to property, where the person arresting is the owner, in lawful possession, or authorized by owner/lawful possessor of the property Peace Officer Power of Arrest Without Warrant – s. 495 - (1)(a) Anyone who has committed an indictable offence, or reasonable grounds believes has committed, or will commit an indictable offence - (1)(a) Anyone found committing a criminal offence - (1)(c) Reasonable grounds to believe a warrant exists for the arrest of a person Shall Not Arrest for 553 indictable offences, hybrid offences or summary offences where: - (2)(d) Believes on reasonable grounds that the public interest, including the need to: establish the identity of the person, secure or preserve evidence relating to the offence OR prevent the continuation/repetition of the offence; may be satisfied without so arresting the person AND - (2)(e) Has no reasonable grounds to be believe that the person will fail to attend court Compelling Attendance Accused Not Arrested: - s. 496 Appearance Notice Summons (mailed summons must receive response to be binding) Warrant s. 507 Accused Is Arrested: - - Either released by police/JP/Judge or Detained by judge/JP Released by Police: o S. 497 - Summons to follow or Appearance Notice – (if offence is s. 553, hybrid or summary) Peace officer shall release as soon as practicable from custody with intention of compelling appearance by summons or by appearance notice Shall not release if contrary to public interest; to establish identity, secure evidence, or to prevent the continuation of the offence or commission of a new offence o S. 498 – Summons to follow or Promise to Appear w/out undertaking or recognizance, with/out deposit Max of $500 deposit; for offences with max 5 years or less Same limitation as in s. 497 for public interest o S. 499 – Promise to Appear w/ or w/out surety, recognizance w/ or w/out UTA and w/ or w/out deposit With arrest warrant only: Max $500 deposit; all offences except for s. 522/469 offences; o S. 503(1)(c-d), 503(2) – Residual police release power No conditions, PTA or Recog (no sureties, $500 max); w/ or w/out UTA per s. 503(2.1) Released by JP o In person – s. 515 (See Below); Telebail – s. 515(2.2 o Bail Ladder - s. 515(2) and 515(3) (cannot result in summons, A/N or PTA – this IS an appearance) o Presumptive entitlement to bail (Crown must justify conditions or detention) – s. 515(1) 19 - - Reverse Onus in some circumstances – s. 515(6) o Power to confirm police decision or cancel police process and issue summons/warrant – ss. 508, 512 o Power to replace police process and proceed under s. 515 o Detention or remand in custody o Warrant for non-compliance with conditions s. 524 Release by PCJ o Same powers as JP above, but also power to change JP decisions ss. 508, 512 Release by SCJ o Always reverse onus – s. 522(2) Consent Release – s. 523(2)(c) Adjournments – s. 516 o Max 3 days without consent, or for any reasonable longer period by consent No Contact Order o Pending bail – s. 516(2) o As part of bail order – s. 515(4), (4.2) o Ancillary to detention order – s. 515(12), s. 522(2.1) Warrants: o First instance – s. 507 o Public interest – s. 512, 524 o Endorsed/Unendorsed – release by the police – s. 507(6) o Warrants do not cancel bail conditions Bail Hearings - Most are heard in the PC, but s. 469 offences must be heard in the Supreme Court Options at a Bail Hearing: - Undertaking with no conditions Undertaking with conditions Recognizance with no surety or cash deposit Recognizance with surety or deposit Detention Consent Release – s. 523(2)(c): - Crown may consent release an accused on conditions based on own assessment or after negotiation with D Cash bail; surety bail; conditions; no charge Failure to comply, results in a JIR hearing Criteria for Detention at Show Cause Hearing: Primary Ground - s. 515(10)(a) - Detention is necessary to ensure attendance in court (not necessary, higher threshold than likelihood) Considerations in assessing degree of primary ground risk: o Failure to appear convictions on criminal record o Prior bench warrants on file o Ability to report to bail supervisor and follow court orders o Seriousness of the offence – more serious = more flight incentive o Strength of Crown’s case – more certain = more flight incentive o Life stability (home ownership, family, employment, other support) o Roots in the community o Roots in other community/country where accused could flee to o Intention or means to leave the community 20 - - o Ability to post surety or cash deposit o Citizenship in another country Possible Conditions: o Bail supervision o Cash Deposit or surety o Depositing passport o Condition to remain in jurisdiction o Interim court appearances (essentially to remind the accused) Conditions should be based on the type of primary ground person it is: o Drug abusers are too addicted to make it to court – money is not available to them – bail supervision o General avoiders – perhaps a sentencing adjournment to get them in court o Genuine flight risk – cash deposits / deposit passport Secondary Ground – s. 515(10)(b) - - - Detention necessary for the protection / safety of the public, including any victim / witness to the offence, or any person under the age of 18, having regard to all the circumstances including any substantial likelihood that the accused will, if released from custody, commit a criminal offence or interfere with the administration of justice o “Criminal offence” – not just serious offences or similar offence – any offence Considerations: o Criminal record generally o Criminal convictions for similar (related) offences o Nature of the offence: seriousness, relationship between accused & victim (strangers is a higher dangerousness to the public); gratuitous violence o Strength of the case against the accused o Degree of participation of the accused in the offence o Convictions for disobeying court orders (breaches) o Bound by a court order at the time of the offence (currently on probation, CSO or other bail) o Relationship between the accused & victim for no-contact purposes o Profile of the accused – occupation, lifestyle, criminal record, family situation, mental state, etc Possible Conditions: o Surety or cash deposit o No contacts with victims; no-go to residence & work of victim o No contact with co-accused o Bail supervision o Curfew o No drugs or alcohol o No driving (if MV offence) o Attend Forensic Clinic or other mental health agency o No weapons o No knives except when consuming or preparing food or for work purposes while at work o Not to be found within the presence of persons under the age of 16 years Tertiary Ground – s. 515(10)(c) - - Detention is necessary to maintain confidence in the administration of justice having regard to all the circumstances, including: o (i) The apparent strength of the case o (ii) Gravity of the offence o (iii) Circumstances surrounding the commission of the offence (firearms?) and o (iv) Lengthy sentence of imprisonment if convicted Rarely used – should only be used for more serious matters Hall (2002 SCC) – Tertiary ground is constitutional; Inquiry must focus on the reasonable community perception of the necessity of detention – not the perceptions of persons who don’t believe in bail or are “overly excitable” Nguyen (1997 BC) – Meaning of the public interest in the context of bail pending appeal o There are lesser classes within the serious cases 21 o o o Violence itself is not conclusive as would lead to frequent detention Prone to violence? Or just caught up in poor circumstances? Offence against vulnerable groups? Police Release Critera: - Similar to s. 515(10) grounds above, but have some differences: o Public Interest – is the test for determining whether to detain or release o Includes, but not limited to: ID; securing evidence; preventing continuation/new offence; safety Assessment and Description of the Criminal Record - Succinct description to describe the essence of the criminal record Quantify – minimal/limited/lengthy/extensive criminal history Point out any patterns or noticeable gaps Related/unrelated offences; recent/dated offences Sentencing history, or lack there of Defence looks to the record to find what can be said about it o Record of an alcoholic; drug addict; mental illness etc. Evidence at JIR – s. 518(1) - (a) – Evidence on oath or otherwise - (b) – D can give evidence, but no cross examination on the offence until testifies in direct examination - (c) – Crown can introduce: Prior convictions; outstanding charges; prior breaches; circumstance of the case - (d) – Anything with agreement of the parties - (e) – Wiretaps - (f) – Shall consider evidence re: safety & security of victim or witness - (g) – Credible & Trustworthy evidence NOTE: Generally presented by way of narrative at the bail hearing Orders That Can be Made at JIR 1. Detention: s. 515(5) – judge must give reasons where Crown has shown cause why detention is justified 2. Release on Undertaking w/out Conditions, unless Crown Shows Cause – s. 515(1) a. This is the starting point for the release ladder; b. Applies to offences other than s. 469 offences 3. Release in Some Form Other than in (1), the justice shall release on s. 515(2): a. Undertaking with conditions – no money – 2(a) b. Recognizance with conditions for an amount, but without surety or deposit – (2)(b) c. Recognizance with sureties by no deposit – (2)(c) i. A person who is willing to give money on behalf of the accused ii. Sureties can be released from their duties, and their actions leading up to a breach are looked at to determine liability for the breach d. Recognizance without sureties with deposit (2)(d) – consent of the Crown is not required e. Recognizance with or without sureties with deposit (2)(e) – where non-resident of Province 4. The crown must justify each step-up in the ladder of (2) – s. 515(3) 5. Publication ban on show-cause hearings – s. 517 a. (1) “May” be ordered if Crown-requested; “Shall” be ordered if requested by Defence i. Until accused is either discharged at prelim or at the end of trial b. (2) It is an offence to violate the publication ban 6. Adjourning a bail hearing – s. 516(1) – max of three clear days! – custody during that time 22 Burden and Reverse Onus 1. Presumption of Release, except where there is a Reverse Onus a. Crown has the burden of justifying why detention, or termed release is appropriate b. S. 515(1) requires release on simple undertaking absent justification from Crown for something more c. S. 515(3) – Crown must show cause why each step up the ladder is justified in s. 515(2) 2. Reverse Onus – burden shifts to the accused to show cause why he/she should NOT be detained a. S. 515(6) – Reverse onus in listed circumstances including: i. (a) Where charged with indictable offence (other than s. 469) that: 1. (i) Was committed while on bail for another indictable offence (regardless of what stage the matter is at, including at appeal) 2. (ii) Specific indictable gang offences 3. (iii) Specified terrorism offences 4. (iv) and (v) specified Security of Information Act offences 5. (vii) Firearm used in listed offences (murder, sex assault w/weapon, aggravated sex assault, kidnapping, hostage taking, robbery, extortion) 6. (viii) Indictable offence where firearm used and accused was on firearms prohibition ii. (b) Not ordinarily a resident of Canada iii. (c) Charged with breaching bail or failure to appear (s. 145) while on bail for another offence iv. (d) Specified drug offences that carry maximum life sentences (trafficking, import/export, production) b. s. 522(2) – for s. 469 Offences, accused must show that detention is not justified under s. 515(10) i. s. 515(1) does not apply to s. 469 offences ii. s. 515(11) – Justice must detain accused until dealt with according to law; A justice cannot deal with bail on a s. 469 offence. Accused must apply to SC for bail on s. 522(2) iii. s. 522(2) – murder bail section – determines whether accused will be released for s. 469 offence 1. Judge shall order detention unless accused shows cause why detention not justified within the meaning of s. 515(10) – above iv. S. 522(2.1) – non-communication while detained on murder charge v. McCreery (1996 BCSC) – Bail is rarely granted to murder because: 1. Accused already facing life sentence, little to deter against other crimes 2. Affect on witnesses if accused is released 3. The more imminent the conviction appears, less likely bail becomes vi. However, many still receive bail on murder – circumstances of the case dictate terms c. s. 524(9) – Where accused is found in breach of bail conditions, or commission of new offence while bail i. Justice shall release accused if accused shows cause and can impose conditions d. s. 742.6(2) – CSO reverse onus Conditions Upon Detention: - s. 515(12) – no contact Upon Release – s. 515(4): - (a): Requirement to report - (b): Remain in jurisdiction - (c): Notification of change of address/employment - (d) Abstain from communication (no-contact); and abstain from attending (no-go) - (e) Deposit passport - (e.1) Any other conditions considered necessary to ensure the safety/security of the victim/witness - (f) Other reasonable conditions - (4.1) – Firearms & weapons prohibition for specified offences (including violence/ harassment) - (4.12) – Justice may provide reasons for not including firearms prohibition if it was a specified offence - (4.2) – For certain offences (including where violence used/threatened/attempted), justice SHALL order: o No contact for any person (not just witness or victim) o No-go any place relevant to the circumstances 23 o Other conditions deemed necessary Consequences of Detention - Loss of liberty prior to a finding of guilt Risk of serving more jail time than proposed sentence Can impair ability to mount a solid defence Affect one’s ability to earn income or to pay for defence To Protect Against This: - Charter s. 11(d) – not to be denied reasonable bail without just cause - Procedural protections – only credible and trustworthy evidence; accused not cross examined - Presumption of release throughout & ladder presuming lease onerous release (except for limited reverse onuses) Bail Breaches - Most common: Not reporting to bail supervisor; Failing to abstain from drugs/alcohol; Failing no-contact Consequences: 1. Accused is arrested (with or without warrant) by police for breaching bail and brought before justice 2. Police/bail supervisor submit report to Crown who approves a charge of breach of bail under s. 145(3) 3. Police/bail supervisor submit report to Crown who approves a s. 524 Warrant a. Where there are reasonable grounds to believe that accused breached bail b. Brought before justice to determine if breach occurred and whether should be released on original charge s. 524 Warrants - (1) – s. 524 warrant for breach of bail - (2) Warrantless arrest for breach of bail - (3) Once accused is arrested, is to be taken before justice - (8) If justice finds accused breached bail or committed new offence, SHALL cancel previous release document - (9) Justice shall release accused if accused shows cause (reverse onus); and justice can impose conditions - (10) If justice releases accused, must give reason (note, opposite from regular procedure – reasons for detention) - (11) If Justice does not make a finding that accused breached bail or committed new offence, Justice must release - (4)-(7) Process in SC, much like the PC process NOTE: Does not charge a new offence; simply a mechanism to get accused back before the court to re-determine whether bail on the original matter should be revoked, or whether should be allowed to continue to remain in community (either on same conditions or more stringent conditions) s. 145 Breach Charges - (3) It is an offence to fail to comply with a condition of bail A new information is sworn alleging a new offence of breaching bail pursuant to s. 145 for failing to abide by a term of previous release NOTE: hybrid offence – Crown can proceed by summary or by indictment Reviews and Variations of Bail - Varying with Consent of Prosecutor (s. 515.1) Reviews of Bail set by Provincial Court (ss. 520, 521, 523) Reviews of Bail set by Supreme Court (ss. 520, 521) Amending Police Undertakings (s. 503(2.2) & (2.3)) Thirty and Ninety Day Bail Reviews (ss. 525 & 526) Arraignment and Case Management Prior to Trial/Prelim 24 Criminal Case Flow Management Rules - Timelines Time estimates/witness predictions/ admissions/ ISP prior to arraignment – intended to compel counsel to review file in a meaningful way BEFORE trial date Fixing Date: o Done in office of the Judicial Case Manager o Generally only defence counsel attends unless it’s a very serious matter o Crown receives notice of the trial date later o Pre-trial Conference with Administrative Judge in Chambers required if matter has trial/prelim time estimates of over 2 days Disclosure (see Disclosure Flow-Chart) Crown - Duty to disclose all evidence, both cuplatory and exculpatory – articulated in Stinchcomb Marshal – Crown only disclosed what they wanted to and innocent man was convicted – full disclosure prevents SEE CHART!! Defence - Alibi Defence: Non-absolute requirement to provide disclosure of alibi defence; o Not required by statute, but if not provided, could receive less weight as a defence because Crown can raise the point that they are just now hearing about it and have thus not been able to verify alibi Expert Reports – s. 657.3 o If late in disclosure then Crown almost certainly entitled to an adjournment Charter Applications o Burden on the party claiming the charter application to establish on BoP that there has been a breach o Duty on D council to provide sufficient details on the application that the Crown can call evidence in response – no statutory duty, but Court could rule that is’ too late to raise the issue Resolution Discussions - Not the same as extortion, but may seem that way Fewer charges/lesser included/attempts/other offences Agreement on facts – Resolution discussions, plea negotiations Guilty Pleas s. 606(4) – Accused may enter guilty plea and it may be accepted by the court where Crown consents to the guilty plea; Court will then find the accused guilty of the charge in question Agreement on sentence parameters – length, jail v. CSO or CSO v Probation Agreement not to proceed on other matters, charged or pending – power to stay/withdraw charges – s. 579 80% of criminal files in Victoria are settled by guilty plea – this is the result of negotiation between C/D Judge Quinn, Administrative Judge for South Island - 90% of criminal cases go to provincial court Once case goes to trial, things go relatively smoothly – it is the front-end work that is problematic Culture of adjournment – creates electronic treatment – arraignment/trial confirmation/etc – mostly in person Only 31% of cases go to trial on the date set; 69% collapse rate / fall-through rate o Most people cannot afford to go to court Effect is that govt is taking things out of the court system to deal with it Appearance of accused: a. Video appearances by Accused: Prelim not witness s. 537(1)(j) & (k), jury trial not witness s. 650(1.1) & 650(1.2), bail hearing s. 515(2.2) b. Appearance by Counsel: Prelim not witness s. 537(1)(j), Summary trial s. 800, Jury trial, not witness 650(1.1), 25 c. Appearance by Designated counsel: Jury trial but not witness or jury selection 650.01, for plea & sentence if court allows 650.01(3)(c) d. Defence counsel by video 650.02 e. ∆ excused from being present: at prelim s. 537(1)(j.1), with conditions 650(2)(b), at jury trial to protecting ∆ mentally s. 650(2)(c); at jury trial for disruptive ∆ 650(2)(a); at summary trial exparte 803(2) f. By agent in summary matters, s. 800 Appearance of Crown, s. 799 (dismissal for want of prosecution), 650.02 (by video) Adjournments a. b. c. d. e. f. g. h. i. j. k. Adjourn jury trial, s. 645 Adjourn bail hearing, s. 516 Adjourn plea, s. 606(3) Adjourn prelim, s. 537(1)(a) Justice adjourn absolute jurisdiction offence to PCJ, s. 536(1) Justice adjourn to PCJ where accused elects PCJ, s. 536(3)(a) Adjourn before or during summary trial, s. 803(1) SCJ/PCJ may adjourn non-jury trial, s. 571 SCJ may adjourn jury trial, s. 645(2) Adjourning a conditional sentence order breach hearing, s. 742.6(3.3) Adjournment by a trial Court before or after plea, s. 669.1(2) 26 Election and Preliminary Inquiries Defence Election of Mode of Trial Section 536: - (2) May elect when charged with strictly indictable offence or Hybrid offence - Crown proceeds by indictment MAY NOT ELECT: - (1) Where charged with an absolute jurisdiction offence under s. 553 - (4) Where charged with a s. 469 offence - (4) Where the Crown proceeds by direct indictment under s. 577 Also note may not elect where: - s. 568 – Crown overrides the accused’s election (rare) - Summary offences or Hybrid offences where the Crown proceeds summarily Deemed Election – s. 565 - (1) Accused may be deemed to have elected to be tried in SC by Judge and Jury where: o Forced to by PCJ or where accused fails to elect Re-Election – s. 561 - Accused has the right to re-elect – absolute right May also re-elect at anytime with any court – with Crown consent Generally though, provincial sentencing is more lenient than supreme court Preliminary Inquiries Availability - - Available where either the Crown or Defence requests a Preliminary Inquiry in the following situations: o D elects SC Judge alone – s. 536(4) o D elects SC Judge and Jury – s. 536(4) o Deemed election – s. 565 and 536(4) o Charged with s. 469 offence – s. 536(4) Note available where: o Absolute jurisdiction offence (s. 553) – s. 536(1) & (2) o When D elects PCJ – s. 536(3) & (4) o Direct indictment – s. 577 – s. 536(4) o Summary offence or hybrid offence where Crown proceeds summarily Requests for Preliminary Inquiry: - Request by Crown or Defence – s. 536(4) Request by co-accused – s. 536(4.2) – if one requests, prelim for ALL Purpose of a Preliminary Hearing: - Used much more narrowly than they used to be used Focus will be on confessions and statements to determine admissibility o Voluntariness / Charter violations o May rule on voluntariness at the Prelim, but cannot rule on Charter violations To find out strength of witnesses/ case Statement of Issues for Prelim – s. 536.3: - Party can request particular issues to be discussed at prelim s. 536.4 and s. 549(2) – Focus hearing s. 536.5 – Focus agreement – file a recorded statement before/after the prelim to what agreement was Publication ban – s. 539 – evidence of confessions from accused; s. 542(2) – statements from accused until discharged or completion of the trial 27 What Happens at a Preliminary Inquiry – s. 535? - Justice can set out publication ban; may also close the courtroom (narrow now) Controls the dates of hearing and adjournment Determines the requirements for the accused for appearance Can remand accused for identification; or remand generally Controls procedure and conduct of counsel Power to continue under s. 544 Adjourning the prelim inquiry until accused can be arrested S. 545 – same power as trial judge to incarcerate a witness that refuses to testify – rarely used Cannot grant Charter relief – not a court of jurisdictional relief (Hynes) Hearsay at Prelims – s. 540(7): - Must be credible and reliable Must give notice of intention to submit evidence of this type Crown can lead credible hearsay evidence that the accused had made a statement – cross examinable Not often used – will likely input evidence of agreed statement of fact Affidavits/written/audio/video statements can go in, so long as credible and trustworthy Statements from other proceedings are good for admission as well Defence Evidence in Prelim: - Generally, D does not call evidence at prelim Doesn’t really contradict Crown evidence either – it’s not to be weighed, just to assess if there is a case Strategically, D doesn’t want to give away defence at this stage of the trial Committal to Stand Trial – s. 548(1) - - - Sheppard – Whether there is any evidence upon which a jury, properly instructed, COULD return guilty verdict o Dissent: if no jury properly charged and acting judicially, could convict the accused, or if the judge would be under the duty of directing a verdict of acquittal o NOTE: judge should not be weighing evidence, but because of this dissent, judges often weigh value of evidence in the determination of committal to stand trial o Direct Evidence – where someone saw accused do it (or do something) o Circumstantial Evidence – Requires an inference to be drawn o Similar to the “air of reality” test for putting forth defences Accused may appeal this decision – which is avoided in direct indictments Can either commit the charge to trial or discharge the case – s. 548 Can vary previous conditions on the accused – fairly broad power – s. 523(2)(b) o Happens where accused has been locked up for quite some time o Evidence at prelim effects the determination of how bail is varied o Accused’s behaviour will have a large roll to play in this process Consent committal – s. 549(1) Powers of Preliminary Hearing Judge – s. 537 - Broad powers to adjourn, discharge, schedule etc. 28 Applications – Pre-Trial & Other Preferring the Indictment Section 574 – Preferring Indictment for Judge and Jury - Crown can prefer and indictment on: o 1. Any charge for which the accused was ordered to stand trial o 2. Any charge disclosed by evidence at the preliminary inquiry (in addition or in substitution) Section 576 – No indictments allowed other than those provided for in the Criminal Code – no grand juries Section 566(2) – Preferring an Indictment for Judge alone trial – s. 574 and 576(1) apply Section 577 – Preferring Indictment requires consent from AG or DAG What Goes into the Indictment? - s. 580 – Must be in paper in Form 4 – applies to judge alone as per s. 566(1) & (2) - s. 581 – single transaction, wording: popular wording, words of enactment, or other words sufficient to provide notice; sufficient detail; may refer to other section numbers - s. 583 – Things that don’t have to be in the indictment - s. 664 – No reference to previous conviction where great punishment may be imposed as a result of those previous convictions Pre-Trial Conference - s. 625.1 – Pre trial conference is mandatory Supreme Court Rule 5: Pre-Trial Conferences: - (1) When accused is to be tried by jury, pre-trial conference shall be held at date, time, place and manner as ordered by a judge of the court… (6) Purpose is to consider such matters as will promote a fair and expeditious trial (7) Unless otherwise ordered, conference shall be conducted in chambers and there shall be full/free discussion of the issues raised, without prejudice to the rights of the parties (11) At conference, counsel shall disclose to the presiding judge the nature and particulars of any preliminary motion that counsel intends to make (12) Judge may direct that the motion be reduced to writing and heard at such time prior to the date fixed for trial (13) At conference, counsel shall disclose the nature and particulars of any matter that may arise in the course of trial that would ordinarily be dealt with in the absence of the jury after being sworn in (14) Judge may direct that the matter be dealt with before any juror on a panel of jurors is called Applications Generally NOTE: avoid wherever possible as Crown; just consent to all reasonable applications and get on with the case Types of Applications: - Procedural Applications: regarding conduct of trial or the form of the charge Charter Applications: s. 24(1) and s. 24(2) Evidentiary Applications: both whether it can be heard and to determine the manner in which is is heard 29 Differences Between Applications: 1. Jurisdiction: who can hear the applications a. Evidentiary apps are usually heard by the trial judge b. S. 645(5) allows judge and jury trials for the judge to hear apps before selection of the jury c. Charter applications cannot be heard at preliminary hearing 2. Timing a. Supreme Court Rule 5: Pre-trial Conferences i. (12) Judge may direct that the motion be reduced to writing and heard at such time prior to the date fixed for trial ii. (14) Judge may direct that the matter be dealt with before any juror on the panel is called b. Timing Considerations: i. Are you at the particular stage where the jurisdiction is adequate to hear the application? ii. Anticipated length of the application iii. Whether admissibility of evidence should be ascertained pre-trial iv. Whether judge needs some evidence as context for other evidence v. Will the trial be by jury? Then try to limit excusing jury throughout the trial vi. Consequences of the ruling 3. Notice Requirements a. Supreme Court Rule 2: Notice of Application: i. (1) All pre-trial applications in crim proceedings shall be commenced by notice in Form 1 ii. (3) Notice shall be served at least five days before the date stated in the notice for the hearing b. Supreme Court Rule 5: Pre-trial Conferences i. (11) Counsel shall disclose any preliminary motion that counsel intends to make ii. (13) Counsel shall disclose nature and particulars of any matter that may arise in trial Voir Dire - VDs not automatic – the Court ought not to embark on lengthy VD which holds no promise for success (Murrin) Avoiding the inefficient use of court time – Dietrich o The power to decline to evidentiary hearing at the request of the one of the parties when that party is unable to show a reasonable likelihood that the hearing can assist in determining the issue (Pires) Crown may object to application of D on the basis that there is no likelihood of success (Vukelic) Procedure for Voir Dire (Kutynec) - Procedure is to be determined by the trial judge - Counsel for accused should be required to state with reasonable particularity, the grounds upon which the application for exclusion is made o If it does not, application can be dismissed without hearing evidence - In many cases, the grounds are fleshed out within trial; it is rare that in a thoroughly pre-tried matter, the D is unable to outline the nature of the alleged violation and to summarize the nature of the evidence counsel will call on in the application - Based on the summary provided by D, judge will decide if and how an application will proceed Admitting Voir Dire Evidence at Trial: - Only on an option for a judge alone trial – evidence may be “rolled over” into the “trial proper” 30 Applications Regarding Disclosure (see flow chart!) Three Principle Types of Disclosure Applications: 1. First Party or Stinchecombe Applications; 2. Third Party or O’Connor Applications; OR 3. S. 278.1 or Mills Applications (sexual offences). Three Key Questions in Determining Which Procedure is Applicable: 1. Are the materials in the Crown’s possession? 2. Is the Crown claiming privilege? 3. Is this a “record” relating to a sexual offence as defined in s. 278.1? First Party / Stinchcombe Disclosure Obligations - Crown is obligated to disclose any info it possesses for which there is a reasonable possibility that it may assist the accused in making a full answer and defence (Stinchcombe, 1991 SCC) o Low threshold based on the fact that Crown doesn’t know D’s case and what info is needed Privilege Claims: - Crown asserts privilege, but notifies D that there was privileged information – only to give them information that does not violate that privilege - Commonly: Informant privilege (Basi); Investigative privilege; Public interest; Solicitor-client (inc. 3P) Delay in Disclosure: - Crown has a discretion regarding the timing of disclosure such as when the disclosure is delayed to protect an ongoing investigation or to protect a witness Third Party / O’Connor Disclosure Applications 1. Where record is in the possession of a 3P (beyond control of the Crown; AND 2. Accused is not charged with sex offence OR the disclosure sought is not a record pursuant to s. 278.1 (record containing personal information for which there is a reasonable expectation of privacy) Note: O’Connor procedure is applicable whether or not 3P record attracts reasonable expectation of privacy Steps of an O’Connor Application (McNeil) 1. Serve subpoena which requires the person to bring specified docs, on the record holder; 2. Bring application with supporting affidavit & serve on Crown, person subject of the records and any other person with a privacy interest; Application must show records sought are “likely relevant” 3. Application brought before the trial judge 4. If records are privileged, disclosure barred unless accused’s innocence is at stake 5. Judge applies a two-stage test: a. 1. Whether the record should be produced to the Court; must be likely relevant i. Gate-keeping function to ensure proper use of state authority and avoid fishing expeditions ii. Not an onerous burden; unlike Mills / s. 278.1 – no weighing of competing interests iii. Is there a reasonable possibility the disclosure sought is logically probative of an issue? b. 2. Judge examines the record; Determines if it is “truly relevant” i. Accused’s right to a full answer and defence will generally outweigh residual privacy interests ii. Factor: extent to which the record is necessary to make full answer and defence; probative value of the record; nature and extent of reasonable expectation of privacy in the record 31 s. 278.1 Third Party Record / Mills Applications: Sexual Offences “Record” – s. 278.1: Any record containing personal information for which there is a reasonable expectation of privacy Non-Disclosure Rule: s. 278.2 - (1) Records not to be disclosed except in accordance with this procedure for certain (sexual) offences; - (2) Non-disclosure rule applies even if record is in possession of the Crown or police, unless witness expressly consents to the disclosure, but Crown must notify D of its possession (3) Application: s. 278.3 - (1-2) Application must be made to trial judge, NOT at preliminary inquiry - (3-6) Application requirements: what records requested, why likely relevant, service w/ 7 days notice to Crown, witness and record holder and others Question 1: Should the Record be Produced to Judge for Review? - s. 278.4 – A hearing is held to determine the threshold question as to whether the record should be produced to the judge for review; that hearing is in camera; witness & record holder have standing; witness is not compellable - s. 278.5 – Threshold test for production to judge for review and factors the judge must consider. Test includes likely relevance and necessary in the interests of justice Question 2: Should the Record be Disclosed to Defence? - s. 278.6 – If threshold test met, judge reviews the record to determine if record should be disclosed to defence; (23) can hold hearing to assist in this determination - s. 278.7 – Outlines the test for determining whether record should be given to accused (likely relevant & necessary in the interests of justice) and lists factors the judge must consider (same factors as listed in s. 278.5); Test requires judge to balance accused’s right for FAD against privacy rights of the witness If Disclosed: - s. 278.7 – If production ordered, conditions may be imposed (editing, copies, view only in court, non-disclosure); record can only be used for these proceedings and copy may be given to Crown; If not disclosed, sealed and kept until appeals concluded/expired - s. 278.8 – reasons for decision are required - s. 278.9 – Publication ban - s. 278.91 – Appeal is a Question of Law O’Connor Application vs. Mills Application 1. Focus: Mills is tailored to counter speculative myths and societal misperceptions about sexual assault victims; O’Connor is concerned with ensuring the proper use of state authority 2. Test: O’Connor threshold test is “likely relevant” (no balancing required until second stage); Mills the threshold test is “likely relevant” and “necessary in the interests of justice” (presumption of privacy interest already exists) 3. Crown possession of the record: expressly irrelevant to disclosure with s. 278.1 record, but all other 3P records that come into the possession of the Crown are presumptively disclosable unless clearly irrelevant (Stinchcombe) Disclosure of Youth Records - s. 119(1)(q) YCJA: Access to certain records to be given to an accused /counsel who swears affidavit to the effect that access to the record is necessary to make full answer and defence s. 119(1)(s) YCJA: Any person judge satisfied that access is desirable in interests of the proper admin of justice Unsealing Orders and Editing Affidavits and Informations to Obtain: - s. 187 – wiretap authorizations – automatically sealed w/out need separate sealing order; procedure for opening s. 487.3(4) – warrants other than wiretaps – a separate sealing order was required at time of application; unsealing application for these warrants is required pursuant to s. 487.3 32 Applications Regarding Procedure (Conduct of the Trial) Joinder Application - Primary purpose of broad discretionary power for joinder to the Crown is for efficiency and witness preservation Can be a joinder of offences or of accused persons Section 591(1): Any number of counts for any number of offences may be included in one indictment Section 574(1): Counts originally charged in separate information’s may be joined in the same indictment after the preliminary hearings (assuming accused was ordered to stand trial at the preliminary hearing) Exception for Murder: - s. 589: can’t charge another offence with murder unless it is murder as well, or it arises from the same transaction, or unless the accused consents to the joinder Severance Application Court may order severance of: - s. 591(3)(a): Counts or charges on the indictment; OR - s. 591(3)(b): Multiple accused (co-accused) Test set out in s. 591(3) – “Interests of Justice so Require” - Only trial judge can order severance (Litchfield) - TJ has broad discretion to order Accused to be tried separately on one or more of the counts of the idictment - Onus is on Accused in a severance application to establish on BoP that ends of justice require severance - Should be made prior to trial where relevant facts are known; higher burden on those who wait to apply - Balance: interest of justice in avoiding multiplicity of proceedings v. potential prejudice to accused o Interest to avoiding multiplicity: truth-seeking in one trial and efficiency and cost effectiveness Factors to be Considered by TJ include (Last): - The factual and legal nexus between the counts - Risk of prejudice to the accused (cross-pollination on credibility, prohibited reasoning) - Whether the accused wishes to testify on some of the counts but not others - The undue complexity of the evidence - The possibility of inconsistent verdicts and desire to avoid multiplicity of proceedings - Tendering of similar fact evidence - Impact upon whether trial will be held within a reasonable time - Anticipated length of trial relative to the evidence; how much overlap in evidence between charges? - Antagonistic defences of co-accused Severance of Counts: consider - Closeness in time between the counts - Similarity of the counts/ offences - Whether one or multiple victims - Degree of overlap in the evidence called - Whether accused intends to testify on one count, but not others Severance of Co-Accused: consider - One incident (or series) participated in jointly by both accused? If so, presumption is that they are tried together - Cutthroat defences? Strong presumption of joint-trial to avoid accused blaming each other - Admissible evidence against one, but not against the other, but implicates the other - Jury trial or judge alone? More concern about prejudice to accused with jury, than with a judge - Does one co-accused wish to call the other as a witness? Must demonstrate reasonable effect on verdict - Substantial difference in strength of case against one accused than the other - Prejudice can often be dealt with by way of careful jury instruction 33 Change of Venue Application - Generally opposed by Crown for efficiency, witnesses location, work location, etc Prima facie, an accused should be tried in the jurisdiction where the offence is alleged to have been committed Section 599: Change of Venue for the trial Within the Province may be ordered if Expedient to Ends of Justice - Application can be made at anytime to a judge of the trial court by D or C (usually made by D) - Generally occurs for jury trials, but is not limited to that - Rarely exercised for expediency, more often for situations where accused cannot receive a fair trial Test: 1. Has it been made to appear that there is a fair and reasonable probability (not just possibility) of partiality or prejudice in the jurisdiction? 2. Is it necessary in order to ensure that the accused has a fair trial with an impartial jury? NOTE: Courts have emphasized that discretions should be exercised with great caution and on strong grounds only Factors Regarding Fairness to Accused (Gunning) - Presence or absence of prejudicial publicity - Degree of prejudicial publicity that could be described as extensive - Pronounced hostility towards the accused - Widespread sympathy for the victim; AND - Frightened or enraged community Other: - Local knowledge of admissible evidence is not as significant on an application as local knowledge of “matters which would be inadmissible at trial” - Whether accused is mentioned by name is a factor to be considered (Collins) - Fair trial requires “impartial jurors who will abide by their oaths and accept direction from the trial judge”; does not require a panel of jurors who have “never read or heard about the case” (Glowatski) Options Short of Change of Venue: - Warnings to jury - Challenge for cause - Consent to judge alone - S. 537(1)(a) – justice can change location of preliminary hearing where it appears desirable to do so (rare if ever) Recusal of Judge Application - Only in extreme circumstances; brought with great caution Removal of Counsel Application - Again, only to be brought in extreme and exceptional circumstances Removal of Defence Counsel: - Choice of counsel is fundamental right, but not an absolute right - Must be balanced against public interest in the administration of justice - Neil – Duty of loyalty to clients: not to misuse or abuse confidential information; avoid conflicting interests; commitment to client’s cause; and candour - Litigant must be assured of the undivided loyalty of the lawyer Removal of Crown Counsel - Loyalties to the Crown – same as above - Generally, loss of objectivity is required before Crown is removed 34 Application to Quash Information / Indictment Test: Does the information/indictment reveal an offence on its face? - If not, D can apply to quash information prior to plea; after plea, leave of the court is required to apply - s. 601(1) - Only an indictment/information that discloses no offence known to law or is so badly drafted that it fails to provide notice of the offence changes, will be quashed and then only if it cannot be amended - A missing element does not render the information void as a nullity Application to Amend Information / Indictment s. 601: Provides broad powers to the court to amend wording of a charge so long as it does not prejudice the D - Even if does prejudice the D, the remedy is to order the amendment and order and adjournment (s. 601(2)-(5)) - Court can amend charge at any stage of proceeding – s. 601(3) – usually at application of Crown - When noticed pre-trial, Crown should give notice to the D - S. 795 expressly incorporates provision dealing with formalities of indictments to summary conviction matters - Conduct of Counsel & Pre-Trial Motions Professional Conduct Handbook: Chapter 1 - Rule 1(2): Prosecutor’s primary duty is not to seek a conviction, but to see that justice is done; to that end the lawyer should make timely disclosure to the D of all facts and known witnesses whether tending to show guilt or innocence - Rule 3(11): A lawyer who appears as an advocate should not submit the lawyer’s own affidavit to a court as purely formal or uncontroverted matters… Chapter 8: - Rule 9: A lawyer who gives viva voca or affidavit evidence in a proceeding must not continue to act as counsel in that proceeding unless o (a) The evidence relates to a purely formal or uncontroverted matter, or o (b) It is necessary in the interests of justice. 35 Charter Applications and Remedies Section 24(1) – Remedies for Breach of Charter Rights - Almost anything is possible under this section: o Costs, damages, declaration, stay of proceedings, one-off exemption, adjournment, bail, reduction in sentence, reading in or down, etc Burden is on application to demonstrate on BoP: o The existence of a breach o A rational and reasonable connection between the breach and the remedy Section 24(2) – Applications to Exclude Evidence - Pre-trial or during a trial Test R. v. Grant (2009 SCC) o Seriousness of state misconduct: how grave was the breach of person’s charter rights o Impact on the rights of the Accused: what rights and how much were they infringed o Societal interest in trial on the merits: gravity of the offence, strength of Crown case Application to Strike Down Legislation for Unconstitutionality - - - Requires notice to both prov/fed Crown – Constitutional Questions Act Notice must give sufficient detail of the rights breached and the basis for alleging the breach o 1. Evidence of a breach of the particular person’s Charter rights on the facts of the case, OR o 2. A “reasonable hypothetical” demonstrating that the effect of the law is to breach individual Charter rights in a reasonably foreseeable situation Generally heard as a pre-trial motion o If evidence is required, it’s not likely evidence that goes to guilt/innocence of the accused o If successful, trial will not proceed or will proceed differently If warrant struck down – evidence is inadmissible If legislation is struck down, there will be no trial on the charge, etc o If challenge to a sentencing provision, will not be heard until after the trial No jurisdiction to hear a Charter application at preliminary hearing Grounds for Seeking Remedy under s. 24(1) or (2) - Standing – no remedy for violation of someone else’s rights Must demonstrate a breach on BoP o Crown is required to disprove the breach as part of its case o Not required as a voire dire if there’s no live issue related to the case, but for efficiency sake, is often dealt with pre-trial Procedures: - Advance notice given, or there may be adjournment – R v. Kutynec – must give proper details to Crown If receiving party objects that notice is insufficient, may amend by discussion with opposing counsel If pre-trial hearing o Alleging party goes first o Like bail hearing, reliable hearsay is admissible If during trial o Enter voir dire; usually alleging party would go first, but if called in Crown’s case, they may go first o Same evidentiary rules as pre-trial motion Burden always on the applicant to demonstrate there has been one or more breaches of Charter If successful, burden shifts to respondant to demonstrate that the legislation is saved under s. 1 Charter If breach and not saved, move on to argument about appropriate remedy 36 Oakes Test (s. 1 Charter Saving) 1. Part 1: Reasonable limit a. Rational connection to “pressing and substantial” legislative objective i. Evidence of what objective is 1. Clear wording of the legislation 2. Parliamentary debates ii. Evidence that this is a “pressing and substantial” objective iii. Evidence that legislative response has demonstrable effect in promoting objective iv. Proportionality requirement – minimal impairment or proportionality 2. Part 2: Prescribed by law a. Often dealt with first; frequently not a live issue b. Usually easiest question to answer c. Can either be express or implicit; common law, statute, regulation, even procedural rule Non-Charter Attacks: - A variety of pre-Charter grounds for striking down legislation may still survive o Ultra Vires (federalism) o Vagueness o Overbreadth 37 Evidentiary Applications Timing: - Many evidentiary matters argued during the course of trial (hearsay, prior bad acts, etc) Application is Pre-Condition to Admissibility 1. 2. 3. 4. 5. Voluntariness of statements of the accused to person in authority Application to cross-examine complainants re: prior sexual history (s. 276-276.5) Expert qualifications; usually done in front of jury unless attempting to exclude expert’s area of expertise Principled exception to hearsay rule – voir dire to determine if threshold reliability test can be met S. 9(2) of Canada Evidence Act – application to cross examine own witness on prior inconsistent statement Objections to Admissibility - In some situations, hearings are triggered by an objection – voir dire is discretionary Examples: Traditional hearsay exceptions; prior inconsistent statements; bad character evidence Residual Discretion to Exclude - Where probative value of the evidence is outweighed by its prejudicial effect Application to Cross-Examine Complainants on Prior Sexual History - - S. 276 – Past Sexual Activity NOT Admissible Unless: o (1) Evidence of past sexual activity, with accused or other person, never admissible to support certain inferences (more likely to have consented, less worthy of belief); o (2) Evidence of other sexual activity of complainant not admissible unless these special procedures followed and judge determines the evidence (a) is of special instances (not just general reputation); (b) is relevant; (c) probative value is not substantially outweighed by danger of prejudice to admin of justice o (3) lists factors to be considered S. 276.1(1-2) – requirements for application and 7-day notice to prosecutor and court unless court shortens Test: Stage 1: Threshold Test – Is a Hearing Merited - s. 276.1(4) – Judge applies a threshold test to consider whether application merits a hearing (properly filed and capable of being admissible); (3) jury and public excluded during this consideration Stage 2: Hearing to Determine Whether Admissible - s. 276.2 – After determined hearing is merited (1) the jury and public is excluded; (2) complainant cannot be require to testify; (3-4_ reasons must be given o s. 276(2): the evidence (a) is of specific instances (not just general bad rep); (b) is relevant; (c) probative value is not SUBSTANTIALLY outweighed by danger of prejudice to proper admin of justice o Factors listed in (3), such as: right to FA&D, promoting reporting of sex assaults, removing discriminatory beliefs, etc Related Provisions - s. 276.3 – publication ban - s. 276.4 – instructions to the jury – judge must instruct jury as to the use to be made of evidence - s. 276.5 – Appeal grounds – question of law whether evidence of past sexual activity was admissible Applications – PCJ Trials vs SC Judge Alone vs. SC Judge and Jury - More critical in jury trials because Judge is presumed to be able to parse out the legal principles Want jury to hear evidence as continuously as possible, so timing is important Evidence can be rolled-over in Judge trials because they’ve already heard the evidence Blended voir dires are generally more common in PCJ tirals because serious SC matters should follow procedure more strictly 38 Trial Management & The Mega Trial Questions: - Why are all these applications being added to the trial process? - Are trials larger and more complex? Why Are Trials so Much More Complex Now? - More fact patterns available to cite case law from o Court reporting – electronic o Vast wealth of information available to the court and to the parties Exhaustive lawyering o Over-litigation of non-fundamental points o Over adversarial in some respects; each trying to play the game and win Timid Judging o More worried about appeals and reviews than previously o Scared to not recognize all of the rights for each party involved Counsel Relations o Loss of professional conduct – especially where there’s a requirement to prove some sort of bad-will in the application – promotes personal attacks between counsels Increased Unrepresented Litigants o Cost savings from legal aid cuts only increase costs elsewhere in the system o Crown has to ensure that unrepresented litigants’ rights are adhered to throughout the trial – lengthy! More Technical Evidence o DNA/Computers/Science/etc o Qualifies more experts, more competing views in technology – more voire dires What Are the Responses of Court, Counsel, Legal Aid and Parliament? - Bill C-53 – Fair and Efficient Trial Management o Allows for different charges stemming from the same evidence to challenge the validity of the evidence all together, and then decision is binding on all parties. Parliament is trying to reduce the number of jury trials Case management committees Report of the Review of Large and Complex Criminal Case Procedures – Recommendations – AGON 1. Context and Culture in which Long Complex Cases have Arisen 2. Disclosure and the Pre-Charge Relationship Between Crown and Police a. Closer police/crown collaboration at the pre-charge stage b. Can Crown play a role in prosecution after giving advice to police? c. Responsibilities – who is responsible for what d. Timelines for disclosure 3. Judicial Case Management, Especially at the Pre-Trial Stage a. R9 – Administrative judges should appoint the trial judge – gives awareness of pre-trial motions b. R10 – Where 9 not feasible, pre-trial judge must be given power to make rulings on pre-trial issues c. R11 – Court should have discretion over what kinds of motions would benefit from early rulings 4. Legal Aid a. Approach 1: Paying higher fees to short list of highly qualified counsel b. Approach 2: Enhanced oversight of the budget for long complex cases 5. Advising, Directing and Disciplining Counsel for Both Crown and Defence a. Inexperience, lack of guidance, poor judgement and poor advocacy b. Remedial responses to professional misconduct 6. Managing Unrepresented Accused a. Appointing amicus curiae b. Appointing counsel 39 Jury Selection Steps to Jury Selection Process: 1. Creating the Jury Panel – s. 626 and the Jury Act a. May call any eligible people as per the Jury Act b. Part 1 Jury Act (3-4): Must be Canadian, BC resident, no lawyers, English speaking, no criminal record i. (6) Person can apply to Sheriff for exemption on religious or hardship grounds ii. (7) Person over 65 will be exempt upon request iii. (8) Sheriff can determine procedures for selecting jurors while having regard to basic principles that a person as a right/duty to serve as a juror c. Sheriff may exclude people on those basis d. JA s. 10: Sheriff responsible for empanelling a sufficient number of jurors e. JA s. 11: Sheriff to send summons requiring persons to attend – not optional f. Once they are in the courthouse, the CCC takes over 2. Challenge to the array/jury panel (as a whole) – s. 629 & 630 a. S. 629 - Challenges the process by which the jury was brought to the courthouse b. S. 630 – Judge determines whether challenge to array is founded – if so, directs a new empanelment c. Must be in writing and must allege fraud/misrepresentation 3. Calling individuals forward / Empanelling the Jury – s. 631 a. Numbers are called at random to call each juror from the hallway to the courtroom 4. Juror may be excused or stood aside – s. 632 & 633 a. Stood aside – may come back to that juror if needed; not fully dismissed 5. Juror may be challenged for cause – s. 638 – 640 6. Juror may be peremptorily challenged – s. 634 – 635 7. If not challenged, excused or stood aside, juror is sworn in – s. 631, or selected as alternate juror – s. 631(2.1) Empanelling the Jury – Selecting Each Juror Section 631 – Empanelling the Jury - (1-5) – Describes the process for calling jurors forward and swearing each juror in - (6) – Ban on publication of identity of jurors Section 632 – Excusing Juror - Before trial begins, Judge may excuse juror from service because of personal interest in the matter, relationship with the judge/counsel/accused/witness, or personal hardship or other reasonable cause Section 633 – Stand Juror Asiding - Judge can stand a juror aside for reasonable cause such as personal hardship - A “stand aside” is not an excusing - S. 641 – if run out of panellists, can swear in the stand asides, but if more panellists become available, use those before the stand asides Challenge for Cause Section 638(1) – Number/Basis for Challenges for Cause - Each part has unlimited number of challenges for cause (unlike peremptory challenges) - (1) Only basis for challenge for cause are: o (a) Juror name is not on panel o (b) Juror is not indifferent between the Queen and accused Generally racially/gender based – similar to media concerns o (c-d) Juror not qualified – alien, physically unable to perform juror duties, doesn’t speak language - s. 639 – Court may require challenge to be put in writing 40 Procedure: - s. 640(1) – objection that name of juror is not on the panel – to be tried be judge in voire dire - Objection on other grounds: o STEP 1: Does Accused Want Jurors Excluded for Challenge? S. 640(2.1) – On application of the accused, court may order exclusion of sworn/unsworn jurors from the court room until the challenge is tried, where could believes it necessary to preserve impartiality of jurors o STEP 2: Identifying the Triers of the Challenge for Cause (a) if Court does not Order Exclusion of sworn/unsworn jurors – ROTATINT TRIERS: Last two sworn jurors will be the triers of the challenge, if none sworn in yet, two person present will be appointed by the court to try the issue – once two jurors are sworn in, those two jurors will replace the two court appointed persons and try the challenge (b) If Court Orders Exclusion of sworn/unsworn jurors – STATIC TRIERS: Two unsworn jurors to two persons present are appointed by the Court to try the challenge; these two persons try challenge until all 12 jurors and any alternates are selected (triers do not keep changing) – s. 640(2.2) o STEP 3: Triers are sworn in o STEP 4: The potential juror is asked the question(s) o STEP 5: Triers determine whether the ground for challenge is true S. 640(3) – if challenge is not true, new juror sworn in (unless peremptory challenge) If challenge is true, then juror is not sworn in o STEP 6: If two triers can’t come to a decision, court may discharge the two and direct two others o STEP 7: Next juror challenged for cause – process repeated with triers from STEP 2 - Swite (2011 BCCA) – overturned first degree murder conviction as the trial judge used static triers for challenges, instead of rotating triers, where the accused had not made a request pursuant to s. 640(2.1) Peremptory Challenges - Most common form of challenge, no reason needs to be given for either side Section 634 – Number of Peremptory Challenges - (1) Peremptory challenges are in addition to any challenge for cause - (2) Crown and Defence each gets the same number depending on the punishment of the offence o 1st Degree Murder – 20; Max sentence > 5years – 12; Otherwise – 4 - (2.1) If judge orders selection of alternate jurors, number increases by one for Crown and one for Defence - (4) If co-accused, Crown gets total of all Defence challenges Section 635 – Order of Challenges - Defence starts, then Crown - Alternates back and forth with each juror - If multiple accused, challenge according to order in the indictment Swearing in Jurors - s. 642 – Twelve jurors sworn in – Names kept separate (from other names on panel) until verdict, then returned to the jury box (so they can be a juror again) Alternate Jurors: - s. 631(2.1) – Court can order that alternate jurors be selected (only available until trial starts, then excused) - s. 634(2.1) – If judge orders selection of alternate jurors, number of peremptory challenges increased by one each - s. 642.1 – Alternates to attend at the start of the trial and to substituted if not a full jury; if not need, excused Insufficient People in Array/Panel - s. 641 – using stand asides; s. 642 – Talesmen – Sheriff gets panellists from off the street – empanelling process 41 Jury Trial Procedure Section 572 – Jury Trial rules apply to Judge Alone Trials Section 795 – Jury Trial rules apply to Summary Conviction Proceedings How Did we Get to a Jury Trial? 1. 2. 3. 4. 5. 6. 7. Accused elected judge & jury – s. 536 Accused charged with s. 469 offence – auto jury trial (unless Crown consent s. 473) S. 565(2) – Crown proceeding by direct indictment (s. 577) and accused did not re-elect to judge alone (s. 565(3)) Co-accused elected differently, so judge declined to record the election (s. 567) – deemed J&J – s. 565(1)(b) Deemed election of J&J because accused did not elect when called upon – s. 565(1)(c) PCJ converted trial into prelim pursuant to s. 555 – accused deemed to have elected J&J – s. 565(1)(a) – RARE! Accused elected PCJ, but Crown overruled D and forced jury trial pursuant to s. 568 – HIGHLY RARE! NOTE: refer to the colourful chart to understand the election process thoroughly - s. 471 states that every indictable offence to be tried by judge and jury except where otherwise provided Arraignment / Re-Arraignment of Accused - 3 Parts: 1. Calling accused to bar by name; 2. Reading indictment/information; and 3. Asking for D’s plea Generally arraigned at first appearance; often waives formal reading of the information Must be arraigned before making an election; no pleading at preliminary hearing Trial Sequence of Events 1. Counsel introduce themselves 2. Interpreter sworn in if accused doesn’t speak English 3. Judge’s Opening remarks a. May instruct jury about the trial process and fundamental evidentiary principles b. Usually includes proof BRD and presumption of innocence; warning not to conclude until all evidence 4. Crown’s Case a. Opening; i. Summary of the anticipated evidence; roadmap to assist the jury when hearing evience – no law b. Evidence (driect/cross); i. S. 646 for jury trial; s. 557 for PCJ – evidence of witnesses – same as prelim but with hearsay ii. Generally, no leading questions; Defence cross-examines witnesses; Crown can re-examine if new issues were raised in the cross examination c. Close case; d. Application to re-open (anytime after Closed) i. TJ discretion to allow Crown to re-open – whether the accused will suffer prejudice in defence by allowing Crown to re-open (MBP SCC 1994) 5. Motion for directed Verdict a. Same test as at preliminary inquiry: “whether or not there is evidence upon which a reasonable jury, properly instructed could convict” There must be some evidence on each essential element of the offence to move forward (Sheppard, Mezzo) b. If no evidence upon which the jury could convict, then the TRJ should enter a verdict of acquittal 6. Corbett Application a. S. 12 of the CEA allows for cross-examination of accused on criminal record, but only for credibility b. Accused may make a Corbett Application to prevent this on all or part of his record c. Where prejudicial effect outweighs the probative value of the evidence i. Nature of the previous conviction – crimes of dishonesty are more relevant ii. Similarity of the previous conviction to the offence charged – more similar, more prejudicial iii. Remoteness or nearness in time – older conviction more likely to be excluded iv. Defence attack upon the credibility of Crown witnesses 42 7. 8. 9. 10. 11. 12. 13. v. What is the effect of excluding portions of the record? Will it leave erroneous impression of the crime-free gap when accused was actually in jail? Will it leave impression no crim history? d. Possible Outcomes: i. No exclusion of criminal record ii. Complete exclusion of criminal record iii. Partial editing of criminal record iv. Summary statements can be used instead of specifics of the convictions e. Underwood – Court should determine at the close of Crown’s case because D entitled to know the case to be met and the extent to which record is admissible f. Where accused is crossed on criminal record, judge must instruct jury on the proper use – credibility only Election put to Accused a. S. 651 – Defence counsel shall declare at end of Crown’s case whether or not calling evidence If defence calling evidence a. S. 650(3) – accused entitled after Crown closes case to make a full answer and defence b. Opening i. S. 651(1) – Defence may open the case for the defence c. Evidence (direct/cross) i. S. 651(2) – defence is entitled to examine such witnesses as it thinks fit 1. Direct exam by D; Cross by Crown; Re-exam by D in limited circumstances ii. Evidence taken same as prelim but with hearsay rules iii. S. 541 – when accused is unrepresented, judge to explain to D that he can call evidence iv. Smuk – Generally, accused testifies first for D, but trial judge cannot order sequence Crown Rebuttal & Defence Surrebuttal a. Rebuttal – Crown may call rebuttal evidence where relevant to a fact in issue AND became relevant during Defence case; Crown is not entitled to split its case i. Crown is not expected to contemplate rebuttal to defences until they are raised by D b. Surrebuttal – Court may allow an accused to call evidence in surrebuttal to rebut Crown evidence Pre-charge conference (absence of jury) a. S. 650.1 – Judge can consult with counsel regarding his charge to the jury i. May request counsel modifications; special instructions; defences; significant pieces of evidence to be brought to jury’s attention; where verdict sheet is to be used; instructions on weight, etc Closings a. S. 646 – Address of the prosecutor and the Defence by way of summing up – same manner as prelim b. S. 651 – Summing up or Closing address or Closing i. (3) If D doesn’t call evidence, D addresses jury last; if D does call evidence, C is last ii. (4) Crown addresses jury last if more than one accused, if at least one accused called evidence Judge’s Charge to the Jury a. After closing address of counsel, judge addresses jury, included in judge’s charge: i. Summation of the material evidence related to the viable issues of the case ii. Pertinent law that applies to the viable issues iii. Summary of the theories of the Crown and the Defence iv. The material evidence relevant to the positions taken by the parties v. Must instruct that must follow judges instructions – Jury is master of facts; Judge is master of law vi. Must instruct jury on any defences for which there is an “air of reality” vii. Mandatory elements include: burden on Crown BRD; RD applies to each defence; RD does not apply to individual items of evidence; verdict must be unanimous, Vetrovic warning (unsavoury witness warning) Jury Deliberations a. S. 647 – Sequestering of the Jury i. (1) Before deliberations, judge can allow jurors to separate ii. (2) If not, kept in charge of jury officer who prevents communication between jurors and anyone other than him and other jurors iii. (4) If violation during sequestering or a publication ban (s. 648), will lead to discharge of the jury where a miscarriage of justice might result b. Jury Questions & Read/Play backs 43 14. Verdict / Hung Jury / Reasons for Judgement a. S. 653 – If jury cannot agree – jury is discharged and a mistrial is declared b. Jury verdict must be unanimous – in result, not how they got to that verdict c. May render a verdict of: i. Guilty or not guilty to the offence(s) charged ii. Guilty of an attempt of the offences charged – s. 660 iii. Guilty or not guilty of other offences included within the offence charged – s. 662 iv. Not criminally responsible on account of mental disorder d. Judge Alone – reasons are given for the ruling 15. Jury Polling a. Where some doubt about unanimity of the verdict (Head, Laforet) 16. If second degree murder – jury to consider whether to make recommendation re: parole ineligibility a. S. 745.2 – Where jury convicts of 2nd degree murder, judge must ask the jury if the jury wants to make a recommendation for the 10 year ineligibility of parole to be increased up to 25 years 17. Jury Excused a. Once decision rendered, jury is excused by the judge b. S. 643(2) – Appears to permit the Court with consent of the parties, to have a second trial with the same jury, however this section is not used c. Jury Act s. 13 – not required to serve on jury for 2 years after serving as juror in a trial 18. Sentencing a. Discussed in detail below 19. Taking a View a. S. 652 – Taking a view of place, thing or person 20. Issue with Juror During Trial a. S. 644 – Discharge of juror; (1) for illness or other reasonable cause; (2) Trial continues with 10 or more b. S. 644(1.1) – if jury not begun to hear evidence, can replace discharged juror with panellist/talesman c. S. 634(2.2) – If juror replaced, Defence and Crown each get 1 additional peremptory challenge, per juror 21. Instructions During the Trial a. May be given during trial regarding inadmissibility of evidence – limited purpose evidence 22. Mistrial Applications a. S. 653 – Hung jury – judge can discharge the jury b. Patterson – Judge will declare mistrial only in the “clearest of cases” where there has been a “fatal wounding to the trial process” which cannot be cured by remedial measures c. Pires – Alternatively, a mistrial may be declared if the particular matter could have affected the jury to the point that “the entire trial was compromised” and no remedy other than a “new trial” was available 23. Publication Bans a. S. 648 – Publication ban during jury trial – Where jurors are NOT sequestered, it is an offence to publish information from the trial when jury not present 24. Juror Non-Disclosure Duty a. S. 649 – Except for obstruct justice investigation or trial, jury must not disclose jury proceedings when not in the courtroom Getting a Witnesses Evidence Before the Courts Section 527: Procuring attendance of a prisoner Section 697: Except where s. 527 applies, this part applies where a person is required to attend to give evidence Section 698: Subpoena – Ability to issue a subpoena and warrants where subpoena ignored Section 699: Who may issue – outlines the various parties that can issue subpoenas Section 700: Contents of a subpoena Section 701-708: Service, warrants, detention of subpoenas and related enforcement of subpoenas 44 Evidence by Audio/Video Appearance - S. 714.1 – Allows court to order attendance via video or virtual presence for witnesses inside Canada S. 714.2 – Allows court to order attendance via video or virtual presence for witnesses outside Canada and also provides that notice should be given if witnesses are to be called by a party within trial S. 714.3 – Allows court to order audio evidence for witnesses inside Canada S. 714.4 – Allows court to order audio evidence for witnesses outside Canada Witness Accommodations - s. 486.1 – Support person for witnesses under 18 or who have a disability s. 486.2 – Testimony outside courtroom – witness under 18 or who have a disability s. 486.3 – Accused not to cross-examine witness under 18 s. 486.4 – Order restricting publication – sexual offences – mandatory order application s. 486.5 – Order restricting publication – victims and witnesses s. 6 CEA – (1) if a witness has difficulty communicating be reason of physical disability, court may order the witness be permitted to give evidence by any means that enables the evidence to be intelligible o (2) If witness with mental disability is determined under s. 16 to have the capacity to give evidence and has difficulty communicating by reason of disability, the court may order that the witness be permitted to give evidence by any means that enables the evidence to be intelligible o (3) Court may conduct an inquiry to determine if the means by which a witness may be permitted to give evidence under (1) or (2) is necessary and reliable Competence, Compellability and Capacity Section 4 – Spouse of the Accused - (1) Spouse is competent witness for defence, whether person so charged solely or jointly with any other person - (2) Spouse of person charged with crime related to well-being of child is competent and compellable for the prosecution without consent of the person charged - (3) Spouse is not compellable to disclose any communications made by partner during marriage - (4) Spouse of person charged with crime related to offences against young persons are both competent and compellable for the prosecution without consent of the accused - (6) Failure to testify shall not be made subject of comment by the judge/counsel for prosecution Section 16.1 – Witnesses Under the Age of 14 - (1) A person under 14 is presumed to have capacity to testify - (2) No oath or solemn affirmation required for persons under 14 - (3) If understood, the evidence shall be received - (4) Party who challenges capacity of the witness has the burden of satisfying the court that there is an issue as to the capacity of the witness to understand and respond to questions - (5) If court is satisfied that there is a question as to capacity, it shall conduct an inquiry to determine whether person under 14 is able to understand and respond to questions - (6) Required to promise to tell the truth - (7) No questions regarding whether or not witness understands the nature of the promise to tell the truth for the purpose of determining whether evidence shall be received by the court - (8) If evidence of witness under 14 is received by the court, it has the same effect as if taken under oath 45 Sentencing Resolution Discussions - - Should include: o 1. Counts to which guilty pleas are being entered o 2. Facts upon which pleas are entered o 3. Sentence proposed Negotiations may cover: o Global charges; plea to an attempt instead of complete offence; plea to lesser included offences; stay of proceedings on some or all charges; diversion; stay on bail for while & sop; Alternative charges; noncriminal alternatives Section 606(4) – Court can accept a guilty plea to another offence, as long as the facts support it and the Crown consents to accepting the plea. If plea accepted, the accused is sentenced for the other offence, not the one originally charged The Guilty Plea Section 606 – Pleas Permitted - - (1) Accused who is called to plead may plead guilty or not guilty, or special pleas authorized (1.1) Court may accept a plea of guilty only if it is satisfied that the accused is o (a) Making the plea fovluntarily; AND o (b) Understands (i) that the plea is an admission of the essential elements of the offence, (ii) the nature and consequences of the plea; AND (iii) that the court is not bound by any agreement between D/C (2) Where accused refuses to plea or does not answer directly, court directs plea of not-guilty (3) The court may order adjournment to allow preparation for plea where needed – strict (4) see above Withdrawal of Guilty Plea D.A.S. (2000 BCCA) Must be basis in evidence, usually transcripts of sentencing, and affidavit from accused that the plea 1. Was not voluntary 2. Didn’t understand the nature of the offence 3. Didn’t understand the consequences of the plea 4. Didn’t intend to plead guilty (usually where court fails to clearly confirm plea with accused) OR 5. For some other reason amounted to a denial of the accused’s rights Kienapple Principle – Rule Against Multiple Convictions - Unfair to punish a person twice for what is effectively the same offence Unethical for the Crown to over-charge a person to extract guilty pleas – where all charges cover same issue Revocation of Bail upon Conviction – s. 523(2) - Counsel need to consider this option/possibility ahead of time 46 Mandatory Minimums / Maximums & Sentence Ranges Maximums - Max found in the code with each specific offence or in the offence grid Section 787 (summary offences) - (1) Unless otherwise provided, summary convictions are liable to a fine of not more than $5000 or a term of imprisonment not exceeding six months, or to both Minimums Categories of Minimums: - All offenders on any conviction - Offenders who have prior conviction for same or related offences - Sometimes both – s. 255 (impaired) Mandatory Minimum examples: - s. 255 – Impaired Driving - Firearms offences: 4 year minimum if firearm used in the commission of certain offences - Use of imitation firearm in commission of an offence – one year consecutive – s. 85 Sentencing Range To determine the appropriate range of sentence for a specific offender for a specific offence, must consider: 1. The max and min for the offence 2. Purpose and principles of sentencing generally 3. Circumstances of the offence and the offender, including the presence and absence of aggravating & mitigating factors 4. Precedent: what penalties have similar offenders received in the past for similar crimes Purpose and Principles of Sentencing Purpose of Sentencing – s. 718 - The fundamental purpose of sentencing is to contribute, along with crime prevention initiatives, to respect for the law and the maintenance of a just, peaceful and safe society by imposing just sanctions that have one or more of the following objectives: o (a) DENUNCIATION - To denounce unlawful conduct o (b) GENERAL / SPECIFIC DETERENCE – To deter the offender and other persons from committing o (c) PROTECTION OF PUBLIC – to separate offenders from society, where necessary o (d) REHABILITATION – to assist in rehabilitating offenders o (e) REPARATIONS – To provide reparations for harm done to victims/community o (f) PROMOTE RESPONSIBILITY – Promote a sense of responsibility in offenders, and acknowledgment of the harm done to victims and to the community Fundamental Principles in the Criminal Code 1. 2. 3. 4. PROPORTIONALITY – s. 718.1 – to the gravity of the offence and the degree of responsibility PARITY – s. 718.2(b) – Equality between sentences imposed on similar accused/offences TOTALITY – s. 718.2(c) – Multiple sentences, when added up should not become unduly harsh RESTRAINT/LAST RESORT – s. 718.2(e) & s. 718.2(d) 47 Other Significant Principles Step Principle: - Robitaille – Step principle states that sentences should go up in moderate steps as an unduly large increase could have the effect of discouraging any effort the offender may be making to rehabilitate himself - Robitaille – Step principle is only applicable where rehabilitation is a significant factor in sentencing o Lougheed – Particularly applicable to young people and offenders who have committed few offences o Bush – Of little application where sentencing for denunciation and deterrence o Hiscock – Irrelevant where there has been a significant escalation in the seriousness of the offence Aboriginal Offenders - s. 718.2(e) – Restraint – imprisonment is a last resort for all offenders, “with particular attention to the circumstances of aboriginal offenders - Gladue – s. 718.2(e) is a remedial measure – not simply a re-affirmation of existing sentencing principles o Applies to all offenders and requires that imprisonment be a last resort o Specific reference to AB offenders requires sentencing judges to pay particular attention to the circumstances of AB offenders because of their uniqueness and difference from nonAb offenders Aggravating and Mitigation Factors s. 715.2(a) – Sentence shall be increased or reduced to account for any relevant aggravating or mitigating circumstances relating to the offence or the offender Aggravating Factors: Specified in the Code: 1. Motivated by hate or bias – s. 718.2(a)(i) 2. Domestic violence (abused spouse or common law) – s. 718.2(a)(ii) 3. Child abuse (abused person under 18) – s. 718.2(a)(ii.1) 4. Abuse of trust or authority – s. 718.2(a)(iii) 5. Gang benefit – s. 718.2(a)(iv) 6. Terrorism – s. 718.2(a)(v) 7. Excessive Alcohol: over 160 mg deemed aggravating feature for sentencing – s. 255.1 8. Home invasion: dwelling house occupied at the time and accused knew or was reckless, and used violence or threats of violence – s. 348.1 Circumstances of the Offence: 1. Victim: conduct, character, lifestyle and vulnerability (elderly/spouse/children/isolated/mentally ill/etc) 2. Breaches of trust: theft from employer, welfare, trust account 3. Brutality: sex assault particularly humiliating 4. Premeditation: Sophisticated and planned offence vs impulsive 5. Longer time crime continues: sex abuse of a child; history of spousal abuse, etc 6. Number of victims 7. Consequences / impact on victim 8. Attempts to conceal the offence 9. Use of a weapon 10. Alcohol/Drugs – sometimes mitigating, sometimes aggravating 11. Prevalence in the community Circumstances of the Offender: 1. Age – youthful offences; middle aged people tend to get hit hardest 2. Background and character 48 3. 4. 5. 6. 7. Criminal history – particularly similar (cognate) offences – step principle In breach of court order – very significant factor against non-custodial options Motivation – for poverty or for want Attitude Mental illness – sometimes mitigating: less culpable; sometimes aggravating: increased dangerousness Cannot be used as Aggravating Circumstances: 1. Lack of guilty plea 2. Manner defence conducted (accused lied in testimony, or manner of cross-examination of complainant) a. Though may be reflective of a lack of remorse Mitigating Factors 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. Remorse / Apology Guilty Plea – especially where given early; but cannot penalize someone for insisting on right to trial (Tince) Willingness to make reparations/compensation Assisting police or prosecution on other investigations – testifying against co-accused Age – in relation to criminal history Time spent in custody – not actually mitigating factor, but taken into sentence considerations Criminal history – none/gap/no prior jail/no prior adult sentences Good character, aberration in usual behaviour – where based on a random drunken night, mitigating, but alcoholics pose that same threat regularly and are aware of that, so aggravating in that scenario Has undertaken treatment for addiction or condition that led to the commission of the offence Health problems Employed – supporting spouse or children – other responsibilities Behaviour on bail Sentencing Options Absolute Discharge s. 730 - Means the offender has been found guilty, but not convicted, as offender is deemed not convicted There is no criminal record as accused has not been convicted – s. 730(3) May also impose conditions prescribed in probation order under s. 731(2) Where probation conditions are breached, the absolute discharge can be revoked and the offender can be convicted of the offence to which the charge relates – appropriate sentence can be imposed – s. 730(4) Requirements – s. 730(1): 1. Accused is not an organization 2. No minimum sentence is imposed by the offence 3. Offence is not punishable by 14 years or more 4. It is in the best interests of the accused; AND 5. Not contrary to public interest Conditional Discharge – s. 731(2) - Discharged on conditions set out in a probation order Same requirements as absolute discharge; o However probation order to address need for measures to ensure good behaviour, assist rehabilitation or provide reparations is available Discharge can be revoked if conditions of probation are breached 49 Suspended Sentence with Probation – s. 731(1)(a) - Accused convicted, but the passing of sentence is suspended for up to 3 years to monitor the accused’s behaviour in the community Requirements/Considerations: 1. Regard to age and character of the offender, nature of the offence and circumstances of commission of the offence 2. Must be no minimum punishment imposed by the offence s. 731(1)(a): Where a person is convicted of an offence, a court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, if no minimum punishment prescribed by law, suspend the passing of sentence and direct that the offender be released on the conditions prescribed in a probation order Mandatory Conditions of Probation – s. 732.1(2) - Court shall prescribe, as conditions of a probation order, that the offender do all of the following: o (a) Keep the peace and be of good behaviour o (b) Appear before the court when required to do so by the court; AND o (c) Notify the court/probation officer in advance of any change of name/address, and promptly notify the court/probation officer of any change of employment/occupation Optional Conditions of Probation – s. 732.1(3 and 3.1) - (3) The court may prescribe as additional conditions of probation order, that the offender do one or more of: o (a) Report to probation officer o (b) Remain within the jurisdiction of the court unless written permission to do otherwise o (c) Abstain from consumption of alcohol or drugs o (d) Abstain from owning, possessing or carrying any firearms o (e) Provide for support or care of dependants o (f) Perform up to 240 hours of community service over a period not exceeding 18 months o (g) If offender agrees, and acceptance into program, participate in approved treatment program o (h) Comply with such other reasonable conditions as the court considers desirable - Shoker – Probation conditions must be at least tenuously connected to rehabilitation and protection of society o Cannot be punitive s. 732.2(2)(b) – Maximum length of Probation Order – 3 years from date of effect s. 732.2(1) – Coming into force of Probation Order - Probation order comes into effect: o On the date on which the order was made; o Once released from prison if received sentence in combination with probation o Once released from prison if was serving sentence at the time probation was imposed o If released from prison conditionally, upon warrant expiry; OR o If under a CSO, upon its expiry (but not if CSO subsequently imposed) s. 732.2(3) & (4) – Subsequent variation – Can vary the terms/period for which the probation order remains in effect Fines – s. 734 - (1) Subject to (2), where a person is convicted, they can be fined under s. 734.1: o (a) If there is no mandatory minimum for the offence in question OR o (b) If the punishment includes a mandatory minimum term of imprisonment in addition to any other sanction that the court is required/authorized to impose 50 Fine With Probation – s. 731(1)(b) - Where a person is convicted of an offence, the court may, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding its commission, in addition to fining OR sentencing the offender to imprisonment of a term not exceeding 2 years, direct conditions of a probation order o Can combine fine and probation or fine and jail, but cannot have all three! Conditional Sentence Order (CSO) – s. 742.1 - Jail sentence served in the community Differs from probation in that it has a punitive aspect in addition to the rehabilitative principles Breach is not a new charge, but triggers continuation of sentencing where presumption is that the least portion of remaining sentence will be served in custody A CSO CANNOT be Imposed If: 1. The offence is a Serious Personal Injury Offence as defined in s. 752(a): a. An indictable offence; b. Involving the (attempted) use of violence, or conduct (likely) endangering safety/life, or conduct likely to inflict severe psychological damage; AND c. Where max sentence for the offence is 10 years or more 2. The offence is a Serious Persona Injury Offence as per s. 752(b): a. Sexual offences: sex assault; with weapon; causing bodily harm or aggravated b. Was prosecuted by indictment; AND c. Has a max sentence of 10 years or more i. NOTE: summary sexual assault has a max sentence of 18 months, so this is not met – CSO avail) 3. The offence is a terrorism offence that was prosecuted by indictment and has a max punishment of 10 years + 4. The offence is a criminal organization offence that was prosecuted by indictment with max of 10 years + 5. There is a mandatory minimum jail sentence for the offence 6. The appropriate sentence for this offender on the specific facts of this offence would be a sentence of 2 years or greater (Federal time) a. Subjective analysis of the accused and the particular offence b. Fice – In determining whether sentence of less than 2 years appropriate, do not deduct dead time first 7. The safety of the community would be endangered by the accused serving the sentence in the community; OR a. To assess danger to community consider risk of re-offending and gravity of the damage if it occurred 8. A conditional sentence would be inconsistent with the fundamental purposes and principles of sentencing Mandatory Conditions – s. 742.3(1) - (1) The court shall prescribe, as conditions of CSO, that offender do all of the following: o (a) Keep peace and be of good behaviour o (b) Appear before the court when required to do so o (c) Report to supervisor as directed o (d) Remain within jurisdiction of the court unless written permission obtained o (e) Notify the court/supervisor of any change of name/address and promptly notify of change of employment Optional Conditions – s. 742.3(2) - (2) Court may prescribe as additional conditions of a CSO, that the offender to one or more of the following: o (a) Abstain from drugs/alcohol o (b) Abstain from owning, possessing, carrying a weapon o (c) Provide support or care for dependants o (d) Perform up to 240 hours of community service over a span of not more than 18 months o (e) Attend treatment program approved by the Province; AND o (f) Comply with such other reasonable conditions as the court considers desirable - Proulx – CSO should generally include punitive conditions. House arrest & curfew should be the norm o Rehabilitation and protection of the public are important factors, this is a jail sentence, albeit to be served in the community, so it should contain punitive provisions 51 Jail (Provincial, Federal, Intermittent) s. 743 – If no punishment is specifically provided – 5 year max jail sentence s. 745 – sets out parole ineligibility for the various life sentences Provincial Jail - If less than two years, serve in Provincial Prison – s. 743.1(3) - Can combine with probation – s. 731(1)(b) Federal Jail - s. 743.1 – Serve sentence in Federal Penitentiary if sentenced to life, two years or more, or sentenced to multiple sentences running consecutively where total is greater than 2 years - Can combine a federal sentence with probation if federal sentence is exactly 2 years – s. 731(1)(b) o This is a way to get an accused to federal pen while still having access to probation Provincial vs. Federal: - Prisons tend to be local, federal inmates may be transferred out of province - Programming differences; in particular Fed-Pens known for better programs for violent and sexual offenders o Provincial – less intense needs may have adequate shorter term programming Intermittent Sentences s. 732 - Weekends - Sentence must be 90 days or less - New charges will result if offender fails to show up for intermittent sentence - Can apply to be converted to straight time - If sentenced to jail for subsequent offence, will serve the remaining intermittent sentence on consecutive days The Sentencing Hearing Adjournment of Sentencing – s. 720 - Court to conduct sentencing as soon as practicable after guilty plea or finding of guilt Sentencing sometimes adjourned to allow for preparation of sentencing materials Counsel may require time to consider positions and obtain case law Should be kept to reasonable time frames Sentencing Proceedings and Disputed Facts - Both Crown/Defence must be given opportunity to make submissions on facts - s. 723(1) Both Crown/Defence must be given opportunity to present evidence – s. 723(2) Facts: Jury Trial - TJ passes sentence, not the jury (although jury can make recommendation for parole ineligibility for second degree murder – s. 745.2) - TJ must accept as proven all facts essential to the jury’s verdict – s. 724(2) o Example, specific intent offences (theft), cannot use intoxication as a mitigating factor - May also find on other relevant facts disclosed by evidence at trial or hear further evidence – s. 724(2) - Feguson – After jury verdict: o 1. Judge is bound by express and implied factual implications of the jury’s verdict o 2. If actual implications ambiguous, judge shouldn’t attempt to follow the logical process of the jury, but should come to his/her own independent determination of the relevant facts - Counsel must attempt to determine which facts are implicit in the verdict to make submissions 52 Facts: Trial by Judge (PCJ or SCJ) - Sentence based on facts as found by the judge - Further facts may be considered by the court – put forward by counsel in submissions, or evidence may be required if facts are disputed Facts: Guilty Plea - If guilty plea, generally, sentencing proceeds on submissions of counsel - The plea is simply an admission of the elements of the offence, may need to prove aggravating or mitigating factors still Facts: Disputed - Facts put forth by the Crown at guilty plea may be disputed by D, or a fact not proven at trial may be subject to dispute; Crown may also dispute a mitigating fact put forward by D - Ewanchuk – Facts established at trial cannot be challenged at sentencing, but counsel may attempt to establish additional facts relating to circumstances of the offence as long as consistent with the findings of fact at trial - The party wishing to rely on fact must prove it, submissions alone are insufficient – s. 724(3) o Aggravating facts are to be proven by Crown beyond a reasonable doubt o Otherwise facts proven on a balance of probabilities Evidence - Hearsay evidence is admissible – s. 723(5) - Court shall consider all relevant information, including counsel submissions – s. 726.1 o Levesque – Admissible so that judge has as much relevant evidence as possible to find a fit sentence o However, if court deems it necessary in the interests of justice, witness may be compelled to testify rather than receiving the evidence by way of hearsay – s. 723(5) - Court may require production of evidence believed required to determine appropriate sentence - Usually circumstances of the offender are admitted by Crown, or admitted on hearsay evidence (letters, etc) Pre-Sentence Reports – s. 721 - Prepared by a probation officer May be requested by either Crown or Defence S. 721(3) – describes the content: age, maturity, character, behaviour, attitude, willingness to make amends Generally PSR should not contain a sentencing recommendation For D, its is better to put the PSR forth themselves so they can make sure it is written in a positive light Psychological Assessment - Can order PSR with Psych component – Forensic Psychiatric Act – establishes a body for the purpose of preparing such a report Consent may not be a legal requirement, but often of little value without consent/cooperation Can use any prior psych assessments subject to privilege D may arrange for private assessment – greater control Blackwell – can’t require accused to participate Victim Impact Statements – s. 722 & 722.2 - Court SHALL consider any statement of a victim describing harm done, loss suffered, by the victim S. 722(1) – must meet the procedural requirements of s. 722(2) (emotional/physical/financial) Victim can have statement read in court or presented in any other appropriate manner (s. 722(2.1)) If doesn’t comply with procedural requirements, court may consider other evidence concerning any victim Victim defined in s. 722(4) broadly: o Person to whom harm was done or who suffered physical or emotional loss as a result of the offence; and o Where person in (a) is dead, ill or otherwise incapable, includes spouse/CLP or any relative with lawful custody of that person 53 - Counsel should insture that VIS are within proper limits Offender May Speak - Before determining sentence, Court must ask accused if he/she has anything to say Defence should canvas/prepare client Imposing Sentence - Court shall consider all relevant information placed before it – s. 726.1 When imposing sentence, the Court must state the terms of the sentence imposed and reasons – s. 726.2 o Inadequate reasons open the sentence to variation on appeal Sentencing judges have considerable latitude in deciding what form of sentence to impose o S. 718.3(1) and (2) – subject to mandatory mins/maxes, trial judge has discretion Specific Issues During Sentencing Dead Time - - s. 719(3) – court may take into account any time spent in custody by the person as a result of the offence Historically, 2 days for every one day – compensation for lack of programs/harshness New provision – limited at one day for each day spent in custody – s. 719(3) o Exception – allows one and a half days for each day, “if the circumstances justify it” – s. 719(3.1) o Not available where accused was denied bail primarily because of previous conviction or violation o S. 515(9.1) – requires justice who detains an accused “primarily because of a previous conviction” to state that in writing in the record Court must give reasons for any credit granted – s. 719(3.2) Court must specify – the offence, the amount of time spent in custody, the intended term of imprisonment before credit, the amount of time credited, and any sentence imposed s. 719(3.3) Attempts and Accessories After the Fact – s. 463 1. 2. 3. 4. If full offence had a max life sentence, attempt or accessory after the fact has max sentence of 14 years If full is 14 years or less, max for attempt or AATF is ½ the max sentence If full is summary offence, so is the attempt of AATF If full is hybrid, attempt or AATF is max ½ the max for full if proceeds by indictment or summary Consecutive vs. Concurrent Sentences - Default concurrent – unless court specifically states consecutive sentences Cannot impose a sentence consecutive to a life sentence In some circumstances, mandatory that sentences be served consecutively (s. 85(4) – using firearm) Allowable under s. 718.3(4) Consecutive Factors: - No temporal or factual connection between offences - Not part of a spree - Principle of sentencing, usually denunciation or deterrence, requires separate and additional punishment - Combined sentence should not be unduly long or harsh – s. 718.2(c) Concurrent Factors: - Close factual or temporal connection – theft from multiple autos in a single night - Spree offences 54 - Where necessary for sentences to comply with ‘totality’ principle – s. 718.2(c) Joint Submissions - Denotes agreement between C/D, where in return for guilty plea, counsel will together urge the sentence Court is not bound by a plea bargain Notice to Seek Greater Punishment – s. 727(1) - - When Required? o Penalty section may refer to receiving a higher penalty if previously convicted of same offence Example – s. 255(1)(a)(ii) and (iii) o Won’t be imposed unless Crown proves D was notified, prior to plea (NOT sentencing) of Crown’s intention to seek greater punishment How is it Provided? o No formal notice in Code o Usually served by police – gets awkward if counsel becomes involved Ancillary Sentencing Orders Probation Orders (following jail sentence) - Often not ancillary, but an integral part of the sentence - When following a sentence, seen often as ancillary - Can only follow a imprisonment not exceeding two years - s. 731(1)(b) Firearms prohibitions Section 109 – Mandatory Prohibitions - For convictions of certain offences including: indictable violent offence w/ max 10 years+; specific firearm provisions; criminal harassment; serious drug offences; if already prohibited and offence involved firearm… Section 110 – Discretionary Prohibitions - Not covered in 109 and violence was used, threatened or attempted; offence involved a firearm Section 114 – surrender of firearms upon prohibition Section 115 – Forfeiture upon prohibition Driving Prohibitions Section 259(1) – mandatory for impaired, over .08, refusals Section 259(2) – discretionary for other motor vehicle offences (such as criminal negligence, manslaughter, dangerour driving, failure to remain at scene, etc DNA Order - DNA Identification Act – purpose of the Act is to establish a national DNA data bank to help law enforcement agencies identify persons alleged to have committed designated offences, including those committed before Act 55 - Establishes a database of: 1. Crime scene index and 2. Convicted offenders index Types of DNA Orders – s. 487.051: - Depending on Conviction, three types of DNA orders: - 1. Mandatory primary – s. 487.051(1) - 2. Presumed primary – s. 487.051(2) - 3. Discretionary Secondary – s. 487.051(3) which includes: o Listed secondary offences o Other offences prosecuted by indictment – max of 5 years or more NOTE: Primary and secondary offences are defined in the definition section s. 487.04 Timing of DNA Order – s. 487.053 - Recent provision allows court to impose a DNA order if it didn’t do so at the time of imposing sentence Offenders Serving Sentences – s. 487.055 - Provision for getting the DNA of a person who was convicted before the DNA provisions Sex Offender Information Registry Act Order – s. 490.011 – s. 490.032 Section 490.012 – Order to Comply with SOIRA - Must be read in conjunction with the SOIRA – imposes requirements for reporting in person, name or address changes, before leaving Canada, upon sexual offenders Prohibition Order: Location/Employment/Volunteer - For sexual offenders involving victims under 14 years – can be up to lifetime prohibition S. 161(1)(a) – Public parks, swimming areas, daycares, schools, playgrounds and community centres S. 161(1)(b) – No employment or volunteering involving position of trust or authority towards person under 14 Restitution Order - May be ordered where loss suffered by victim is readily ascertainable Not a form of general damages – ability of the offender to pay will be considered S. 738 – Restitution to owner S. 739 – restitution to bone fide purchaser for value S. 741(2) – Restitution from money found on offender Forfeiture of Property / Weapons Seized - s. 490(9) – forfeiture provision s. 491 – forfeiture of weapons etc used in commission No Contact During Custodial Sentence - s. 743.21 – victim/witness/other person Parole Ineligibility – s. 743.6 - (1) General Section – court may order offender serve one half sentence or ten years (whichever is less) before he may be released on full parole where: 56 Sentenced to two years or more in jail (unless life was minimum) Conviction for an offence set out in Schedules I/II in Corrections and Conditional Release Act Prosecuted by way of indictment Considering Circumstances of the commission of the offence Character and circumstances of the offender Expression of society’s denunciation of the offence or Objective of specific or general deterrence so requires (2) Principles: Paramount principles are denunciation and deterrence, with rehabilitation as subordinate o o o o - Victim Fine Surcharge – s. 737 - Imposed unless expressly waived by the judge – routinely waived upon request when unemployed/jailed 15% of any fine imposed upon offender If no fine imposed, then $50 summary and $100 for indictable offences Breaching Probation Order Section 733.1 – breach charge offence – hybrid, 2 year max if by indictment Revoking a Suspended Sentence or Conditional Discharge - - s. 730(4) – Revoking Discharge o If convicted of a subsequent offence while bound by conditional discharge, court may revoke the discharge and impose any sentence could have originally imposed (in addition to the sentence for the new offence) S. 732.3(5) – Revoking Suspended Sentence or Extending Probation o If convicted of subsequent offence while bound by probation order, court may revoke the suspended sentence and impose any sentence it could have originally imposed (in addition to new sentence) OR vary the probation conditions or extend the order for up to a year Breaching a Conditional Sentence Order (CSO) Section 742.6 – Breach of a CSO is not a new offence and is not commenced or proceded on the basis of information or indictment; It triggers a continuation of the sentencing on the original offence - Bail and process provisions apply as if it were an offence – always a reverse onus – s. 742.6(1)/(2) - Proof of breach is on balance of probabilities – s. 742.6(9) - Mandated timeline of hearing within 30 days from arrest or appearance, as soon after as practicable – s. 742.6(3) - Power to adjourn - s. 742.6(3.3) - Crown usually relies on “paper” case o Written report required, may include signed statements of witnesses – s. 742.6(4) o Report admissible as evidence if notice is given – s. 742.6(5) o Accused can apply to compel attendance of a supervisor or witness for cross examination – s. 742.6(8) Section 742.6(9) - On finding a breach, court may: - Take no action; change CSO conditions; Suspend the CSO order and portion be served in custody and then rereleased on remainder of CSO (with or w/out conditions); terminate the CSO and direct offender be taken into custody until the expiry of the sentence 57 ASSESSING & DESCRIBING A CRIMINAL RECORD Strategies & common phrases for succinctly describing the essence of a criminal record in a sentence or two include: Minimal/limited/lengthy/extensive criminal history Continuous pattern of criminal behaviour / gaps Related/unrelated Recent/dated A record of … violence, property offences, Point out significant sentences Point out lack of significant sentences (“despite the length of the record, the accused has never received a sentence longer than 30 days – reflective of the minor nature of the offences he commits) Distinguish youth from adult convictions (“…no convictions for [violence, breach…] as an adult” “this will be Mr. Smith’s first conviction as an adult”) Numbers: can be a good way of summarizing a lengthy record -- total convictions, number of related offences, number of breaches, number of FTA’s… As defence, need to look for what good can be said about the record: 6 impaireds – no driving while suspended, this is a man who follows a court order not to drive when one is imposed (as alternative to jail or detention) Similarly, K files – obeys a no-contact order Making inferences about the accused: This appears to be the record of an alcoholic (impairs, A record that one might expect of a drug addict The record reflective of a person who struggles with mental illness (causing disturbance, mischief … Newly addicted to a drug (crystal meth): sudden onset of numerous property offences (often with some still to them – frauds, credit cards – new generation of computer savy addicts) 58 Criminal Defence Practice Bail Hearings Want to know charges, criminal record, detainee’s contacts and support in the community, and relative strength of Crown’s case If primary ground, look for a surety If secondary ground, look for bed in a treatment facility Elections Usually a lawyer-driven decision Whether or not accused is in custody plays a factor Unless client is extraordinarily sympathetic, generally want to juries Sexual assault allegations are good for juries Electing Supreme Court judge generally gets you a quicker trial date Stranger identification cases are good for prelims Plea Bargaining Having the right Crown and judge makes all the difference Joint submissions should be followed unless there are good reasons not to Sentencing Usually not necessary for accused to speak, but if they do, should only express remorse 59 Appeals Guest Speakers on Appeals First, must ask why you are carrying out an appeal? Criminal code limits when appeals may occur See the criminal code section for appeals Should be thinking about appeals throughout the trial process. Most cases the appeals are launched by Defence counsel Defendant wants to appeal a conviction Filed sometimes just to protect the right to appeal – just get it filed within 30 days From the class outline: 1. Overview of appellate system (both summary conviction appeals and indictable appeals) Separate procedures depending on what type of appeal it is Where charges are both summary and indictable on the same information, the indictable appeals process governs the procedure Appeals are allowed starting under s.813 May appeal errors of law, procedural errors, etc Prosecutor is governed by 813(b) – contrast with the narrow rules of indictable appeals regime There must be some significant public purpose to pursue an appeal (Crown) The first level of appeal is a very broad one, leave is almost always granted Question of law – usually a failure to properly instruct a jury Or where the judges have applied a set of legal principles against the facts Question of fact – is the judge misunderstanding the evidence? Error in procedure Sentencing appeal – governed by s673 Very broad appeal basis – length, order, declarations, ancillary orders Powers under s.687 – may varry the sentence or dismiss appeal Must be an error in principle, OR where demonstrably unfit The Crown must find questions of law, but for the accused, they’re able to apply on law, fact, mixed law and fact Appellate courts only have powers that are specifically set out by statute It is all written down somewhere Offender is generally precluded for raising an entirely new issue Because there will usually be required a finding of fact on the issue Appeals are the exception, they’re not the rule Principle – there is to be finality in litigation Mistakes should have been raised with the trial court to begin with In terms of Charter litigation, it must be raised at trial for it to be applied on appeal Appeals shouldn’t be set up at the expense of the Trial court Objections are required for the record Claimant must file within 30 days, and then respondant must file within 14 days of the date of appeal hearing 60 2. Summary conviction appeals (how they work) ss. 812-839 3. 4. 5. 6. Indictable appeals (ss. 673-689) 679 seek bail pending appeal on indictable appeal Pre-requisites are conjunctive – must satisfy all the requirements Presumption of innocence is not longer at issue More frequently allowed on summary matters – because there’s no remedy for the accused if the appeal is successful for all that time served Conviction appeals – must establish that the appeal is not frivolous Tests for review (appeals from conviction vs. appeals from sentence) 8. 9. 10. 11. 12. 13. 14. Part 21 of the code governs these appeals S.676 gives Crown’s grounds for appeal – much more strict than summary appeals Appeals to Supreme Court of Canada (ss.691-693) Orders for new trial (deemed elections/re-elections) Criteria for bail pending appeal 7. Appealing from provincial court judge or a regulatory prosecution; or a justice of the peace ruling Governed by part 27 of the Code Rule 6 of the BC Supreme Court Criminal Rules Court does have the jurisdiction to extend filing times Must be a bona fide intention to appeal before the expiry date Reasonable reason why it was not filed Must demonstrate that the appeal has some merit For conviction appeals – must establish that appeal is not frivolous, accused will surrender himself in front of appeal hearing, public interest (demonstrate that there is an arguable basis of success Must also show that there’s no public safety issue Sentencing appeal – unnecessary hardship test Public interest may be more difficult to satisfy – deference to the trial Differences between rights of appeal for offenders vs. Attorney General Discuss hearing process on appeal Fresh evidence on appeal (criteria for admission) Extra-ordinary remedies (rights of appeal) Incompetence of counsel Errors of law versus errors of fact Failure to raise an issue at trial 61 Dangerous & Long Term Offenders (a) (b) (c) 2. 3. What is the effect of a Dangerous or Long Term Offender Designation? When is an application for dangerous offender/long term offender designation is made? Statutory pre-requisites: i. serious personal injury offence, s. 752 ii. assessment conducted, 752.1 iii. consent of Deputy AG, s. 754(1)(a) iv. notice to defence, s. 754(1)(b) v. notice filed with court, s. 754(1)(c) (d) Hearing process & Rules of Evidence applied (e) Assessment provision (s. 752.1) (f) Test for dangerous offender designation, s. 753 (g) Test for long term offender designation, s. 753.1 (h) Result of finding: indeterminate/definite/conventional sentencing (i) Post-Sentence:, s. 760 & 761 (j) Appeals, s. 759 (k) Breach of Long Term Supervision Order, s. 753.3 Recognizances to Keep the Peace (a) Fear of Injury, s. 810 and common law peace bond (b) Fear of specified offences (terrorism, gang, intimidation), s. 810.01 (c) Fear of sexual offence against children, s. 810.1 (d) Fear of Serious Personal Injury Offence, s. 810.2 Firearm prohibition applications, ss. 111-117.06 62 Mentally Disordered Offenders 1. 2. 3. 4. 5. 6. 7. 8. 9. 10. 11. 12. 13. 14. 15. 16. Introduction to mentally disordered offender provisions (purpose) Fitness/NCRMD – explain meaning of each; a. All accused are presumed to be fit (s. 672.22) and presumed not to be suffering from mental disorder amounting to NCRMD (s. 16(2)) b. Only the “trier of fact” (a judge, or in a jury trial, the jury) can make a finding of “unfit to stand trial” or a verdict of NCRMD c. Fitness – a ruling on present capacity, proven on a balance of probability (s. 672.22), to participate in proceedings – issue may arise at any time prior to sentence being imposed d. NCRMD – a Verdict based on evidence of capacity at time of offence, proving on a balance of probability (s. 16(3)) that accused (a) could not appreciate the nature and quality of the act; or (b) could not appreciate that the act was wrong What is a disease of the mind? Assessment process (s. 672.1.- 672.2) Power to order an assessment: Court – s. 672.12; Rev. Bd – s. 672.121 How assessment process affects JIR a. Suspends determination of bail – s. 672.17 b. Assessment report can/will form basis for determination of appropriate conditions of release (or to support detention order if relevant to grounds set out in s. 515(10) Determination of fitness or NCRMD a. Fitness, by Court – ss. 672.23, 672.25-672.27, 672.28, 672.3-672.32 b. NCRMD, by Court – s. 672.34-672.36 c. Fitness, by Review Board, after a finding of the court that accused is “unfit” – s. 672.48 Two year rule re: fitness (must renew application) s. 672.33 One year rule on Rev Bd dispositions – s. 672.81 How an NCRMD application is raised/pursued at trial (difference between Judge alone and jury trials) Difference in process between Crown and defence raising the issue Type of evidence called & what happens when accused does not testify Expert reports (to be provided in advance) Distinction between insane/non-insane automatism Appeals as they relate to NRCMD findings (treated as a verdict) Unrepresented Accused 63 EXAM PREP: 2 essay questions – short 10-15 marks each – must write both Series of fact-patterns Short-answer questions – 3-5 marks Length of fact pattern changes and may have more sub questions No reading period – 3 hours writing Short answers – be to the point! Qualified Open Book Determine what the background issues of a given situation Class 3: Types of Offences Must know everything!! – understand the different types/consequences – colour-coded chart Same questions we looked at in class!!! Bring the chart Investigative Powers of Police: Look at sample question Types of warrants and what they can be used for When is there a reasonable expectation of privacy and what type of warrant can be used Don’t need to know the details on how to apply for them Bail: Criteria for release at a show-cause hearing Orders that can be made Reverse onus CSOs; 524; look at these for reverse onus! and for 469 offences Adjournment of a bail hearing – what to do when not ready Understand what the criminal history is telling the court in Bail (repeated in sentencing) Reverse onus in murder – fact that its in the supreme court – understand that process Pre-trial Motions Timing of applications – factors that go into when the court wants to hear the application Months before? Just before? Dealt with in the trial? What are the factors? Identify the pre-trial motion to make and when to make it Disclosure applications - details of the application are not required Type of application – is it Stinchcome? Is it O’Conner? Is it Nills? Look to chart! 64 Procedural applications Severance and change of venue Provincial court vs. supreme court | judge alone or with jury – what are the differences in procedure Trial management – mega trial!!!! New legislation, court responses, crown responses Increased complexity of criminal trials, why that’s happening, charter, increased approaches THIS IS IMPORTANT!!! It has been recorded – PICK THAT UP! Jury selection – trial process Jury Act – how until everyone gets in the building the Jury Act gets the process going Once in the court house – then it’s the criminal code that takes over What happens when the jurror’s name is called? Different options – excused, sworn in, alternate juror Don’t get confused by potential new legislation Number of pre-emptory challenges – DEFINITE QUESTION Corbett applications Sentencing – fair bit of time Resolutions discussions – different options of things to be negotiated Different sentencing options and when available for different offences Serious personal injury offence section – Whether CSO is available?? Gladue principles Principles of sentencing generally Aggrivating factors, mitigating factors When does probation order come into effect, when is there jail, when does the order terminate? Charges available in certain circumstances Ancillary orders Preventative protection orders – 810 peace bonds; firearm offences with respect to resolution discussions Bold sections are the important ones!!!! YCJA – exam source – great essay topic – essay Look at section 42 – punishment section – complete code for what can be done for sentencing under ycja unless adult sentence Limits under 42 – maximums 2, 3, etc Differences between the YCJA and the criminal code – that talk about the fundamental principles of the YCJA and CC Powers of Arrest Interaction between powers and whether it is a summary/hybrid/indictable that give rise to questions on the exam Something will turn on what particular offence is being charged What kind of offence is it before moving on to the powers of arrest questions Section 504 – swearing of information Any person can swear an information and justice SHALL receive it If private – process hearing 507 505 – information being sworn where the accused has been realeased on appearance notice Sworn by police officer or in respect of person arrested by the police 65 Police can use 505 or 504 504 is limited to indictable offences If summary conviction offence 788 – summary conviction process – justice receiving information in writing OUTLINE: look to bold Read/review/etc Today’s lecture is fair game; same with defence lecture from last week Bail is available almost always where the right things are lined up Youth Court – Youth Criminal Justice Act 66
