Criminal Procedure Summary
S. 91 (27) – federal government – criminal law power/procedure
S. 92 (14) – provincial government – administration of justice in the province
Federal Court – drug, competition, tax
Provincial Court – Criminal Code matters
If a conflict arises, one AG delegates to another – ex. Weapons and drugs
Information is the document
After information sworn in front of JP – issues summons to appear or warrant for
Sole jurisdiction of summary offences
Most indictable offences
Superior Court of Justice
Trials on indictment only
Judge alone, judge and jury
Indictment is the document
Occasionally do summary appeals
20 judges, usually sit by 3
Points of law – charge to jury, evidence etc
SCC – leave to appeal necessary
Types of offences
Summary, indictable, hybrid
Summary – max 2000 or 6 months, s.787 (except where otherwise stated)
Indictable – have to be tried in SCJ, penalty specified, if accused has option to be
tried in OCJ then information is the document. S.743 – maximum penalty for
indictable if not stated within the offence
3 types – s.469 (exclusive jurisdiction of SCJ, murder, treason, deemed judge
and jury (s.471), with consent, judge only, Crown likely to consent unless murder)
s.553 – absolute jurisdiction of provincial judge, no choice s.554 – all others,
accused has a choice – provincial judge alone, SCJ judge alone, SCJ judge and
jury, broad rights to reelect
Crown chooses if summary or indictable. If summary there is no choice of
accused. If indictable, accused elects unless s.553.
Factors that influence – vulnerable victim (summary so they don’t have to
testify twice), repeat offender (indictable), complex case (might want
preliminary, serious (indictable so that it doesn’t stand out as much)
Time considerations – s.786 – summary 6 months, indictable no time limit
aircraft, passport, bigamy, warcrimes = exceptions to territoriality s.7
normally territorial, convenience to witnesses, evidence, justice served in
community where offence committed.
S. 478 – Court in one province shall not try an offence entirely committed in
S. 476 – gray areas wrt jurisdiction ex. Aircraft, rivers, boundary of territorial
S. 478(3) + s. 479 – guilty pleas can be moved to another province
Re Bigelow and R – child abduction, whether any element occurred in the province
1.continuity of operation – could be tried in either 2. commission of overt act 3.
generation of effect in another province. Here, the initial act of taking the child was part
of the continuing offence which then extended beyond the province. The effect of taking
the child was felt by the mother in Ontario.
Powers of arrest
Meaning of arrest – Latimer – actual seizure of touching or a person’s body or
pronouncing words of arrest and having person submit to the arresting officer.
Arrest vs. detention = physical vs psychological control. Charter rights come into
play under both.
S. 9 Charter – arbitrary detention
S. 10 a) and b) – informed and counsel
3 ways – arrest, summons, appearance notice
s.504 – anyone can swear an information
JP must receive the information but issuing process is his administrative function.
He has discretion
S.506 – Form 2 must be used
S. 507 – Issuing of the process
R v Pilcher – officer told by CA and other officers to go and swear information, not
sufficient. JP has to satisfy himself that RPG exist. In reality – one person goes from
entire police station – in camera, ex parte (accused not notified). RPG defined on p.219
– honest belief in the guilt based on reasonable grounds, on the existence of a state of
circumstances which would lead any ordinarily prudent man to conclude that the person
is probably guilty
R v Jeffrey – onus to challenge the information on the accused, could be quashed.
Objection to defects before plea. If quashed, could run out of time. Here JP didn’t weigh
the evidence, just accepted the information. JP has administrative and judicial function.
Re Buchbinder and Venner – OCA – JP received information where informant didn’t
know the name of the accused, can’t do that, information quashed. This is not an
investigative process, that’s the role of the police
Powers of arrest – ordinary citizens
S. 2 defines “peace officer” – police have broader powers of arrest.
S. 494 – (1)arrest by citizen, indictable or hybrid but not pure summary or person
escaping (2)owner of property – offence in relation to the property
S. 27, 29, 30 – reasonable force to prevent commission of an offence
Powers of PO’s
s.495 – 1abc –don’t need warrant, 2 – s.553 offences, need a warrant for them,
would issue summons instead unless the public interest requires it
R v Storrey – SCC, s.9 of the Charter considered. Subjective belief of the officer and
objective grounds must be both present. Police can continue their investigation upon
arrest. Police must bring accused before a justice within a reasonable period of time.
R v Koszulap – OCA, the amount of time the accused was detained raises suspicion
about the voluntary nature of his statement.
R v Biron – SCC, pre-Charter, Biron obnoxious, Police arrest him on causing a
disturbance (which he defends successfully) and assault resisting arrest – committing
offence interpreted as apparently committing
Roberge v R – added reasonable and probable grounds to s. 495 (1) (b)
R v Duguay – OCA, officers did not have basis to arrest at the time of the interview in the
police car, they detained for investigation. S.9 challenge. Illegal arrest does not
necessarily mean arbitrary for s. 9 of the Charter. Ex. Arrest when just short of RPG
would not be arbitrary. Here, there was an improper purpose.
R v Iron – Sask CA, every unlawful arrest is an arbitrary arrest.
R v Simpson – OCA, governs this in Ontario, there is a power to arbitrarily detain if the
officer had articuable cause for investigative purposes. Here the threshold was not met.
Officer stopped a car in a crack house neighbourhood and noticed a bulge in the
accused’s pants. Officer did not have enough grounds for the arbitrary detention.
R v Dedman – police have powers that can be developed through the common law,
Waterfield test developed prior to the Charter for RIDE programs by the SCC to give
police power to stop and check for impaired. This must be derived from statute or
common law duties. (SCC) Here the goal is very important. Impaired drivers kill people.
R v Hufsky – s.216(1) of Motor Vehicle Act violates s.9 but saved under s.1 because
impaired driving is such a serious problem, random stopping at fixed location. (SCC)
R v Ladouceur – random stop, random location, SCC still upholds it because unlicensed
drivers kill tons of people. This was directed at unlicensed drivers and therefore saved
R v Melenthin – spot check and hash oil found in gym bag. Spot check was allowed
because of carnage on the roads but can’t use that power to conduct searches, confined
to s.216 of Highway Traffic Act
R v Gamracy – duty to inform about reasons for arrest was met by telling the accused
that the outstanding warrant was the reason for his arrest. Don’t need to produce the
warrant itself, pre-Charter, s.10 a) now establishes that person needs to be informed.
Would it change Gamracy?
Entry into premises
traditionally done if announced and reasonable and probable grounds to believe
that person was there
Landry – 1.RPG that person was there 2. prior announcement 3. officer believed that
RPG existed for arrest subjectively 4. RPG existed, pre-Charter
Feeney – post Charter, adjusted Landry test, need to protect the sanctity of the home.
Here there was no subjective belief, no RPG, no prior announcement. Transition period
was given after Feeney to adapt. Majority develops exigent circumstances – only hot
pursuit would justify a warrantless entry. 1. Landry circumstances must be met in
addition to the warrant. 2. This was an invalid arrest therefore search incident to the
arrest was invalid.
After Feeney s. 529 enacted – entry warrant introduced, can be done at the
same time as the arrest warrant. S.529.2 – attach conditions to the warrant.
S.529.3 – leaves it open for exigent circumstances, police may need to enter,
exigent circumstances defined – destruction of evidence, prevent bodily harm
Godoy – point to Waterfield as the authority to enter a dwelling house on a 911 call. PO
was acting in his duty and it was reasonable to enter. (requirements of Waterfield) 911
caller requests and expects intervention.
R v Silveira – PO’s holstered their weapons and confined the occupants to the house.
They did not search the premises until warrant arrived an hour later. S.8 was violated
but the evidence was not excluded under s. 24(2).
Search and seizure
1. Did the accused or complainant have a reasonable expectation of privacy?
2. Did the conduct of the police interfere with that expectation of privacy?
If YES to both then a search has happened
3. Was the search authorized by law? Warrant? Consent? Incident to arrest?
4. Is the law reasonable?
5. Was the manner in which search was carried out reasonable?
Police – prevent, investigate, prosecute wrongdoing – essential to every society
Counter value – individual autonomy, right to be left alone
If warrantless – Crown has the burden of showing that it was reasonable
If warrant – Accused must show that what they did was unreasonable
Prior to 1982, property, trespass, theft – relatively simple to define
After Charter – privacy issue
Judicial preauthorization – neutral, independent third party which stands between
the individual and the state. He must assess is state’s interest in gathering
evidence greater than individual interest in privacy. Objective standard used with
respect to the place in question.
Some express Code provisions which allow to search and seize without a
warrant – ex weapons, impaired driving, cockpits, counterfit money
Writs of assistance – declared unconstitutional, gave certain individuals broad
power to seize R v Noble
1. Does the person have a reasonable expectation of privacy
Ghani v Jones – Police had no right to enter the dwelling house and do what they did but
the evidence would have been admissible. Here police seized passports of individuals
suspected of murder. No one has been arrested for the murder. If police officers enter a
house to arrest with a warrant, they may seize any goods which they find in his house
which they believe could be evidence. Law does not permit PO to ransack people’s
houses in search of evidence.
R v Plant – hydro bill examined to find out that he is growing MJ. Complains that this
was unreasonable search and seizure. To answer this we need to consider 1. the
nature of the information (spiritual, family planning – very personal, address, age etc. –
not so personal. 2. Nature of the relationship where information was tendered – ex
doctor, lawyer relationship based on confidentiality. Here the nature of the information
was not that private and neither was the nature of the relationship. For Plant, there was
no reasonable expectation of privacy and hence no interference.
R v Lilico – PO phones a bank and asks if a cheque was cashed and if there was activity
in the account. Accused complains under s. 8 – Nature of the relationship – biographical
core not affected but there was a duty of confidentiality. Combined effect – s.8 not
R v Edwards – invasion of girlfriend’s privacy, not the accused as required under s.
24(2). Purpose of Charter application is to vindicate rights of the accused. Factors to be
considered in assessing the circumstances – p.174 – presence at time of the search,
possession or control of place, ownership of place, ability to regulate access, existence
of subjective or objective expectation of privacy. Abandoned material – expectation of
privacy is given up. (1996) (SCC)
Bellenans v Lawrence – driver of the vehicle has one set of expectations wrt trunk,
driver’s seat. Passenger has a different set, diminished, less control. Passenger could
have a privacy interest wrt receptacle in the car.
R v Simmons – degree of personal privacy is lower in customs than in other situations.
R v Monney – upheld constitutionality of a “drug loo” facility used by customs officers.
Urine and bowel movements – embarrassing process but did not interfere with person’s
autonomy and dignity
2. Did the PO interfere?
R v Fagan – Calls to/from a number monitored by Bell. Identify Fagan as harasser.
Fagan complains under s.8. CA says that there is a REP wrt calls from a number but
Bell is a private party and therefore s.8 is not engaged.
Agent of the state
When does a person become one?
Person has to be under the control of the police.
MRM – vice principle had his own legal authority to perform search and seizure –
principal must have reasonable grounds to believe that there was a breach of school
regulations. Search must be reasonable. He was not an agent of the police. (SCC)
Weir – Internet provider opens up child pornography files. Whey the police tells them to
go and get them more, the ISP is acting as an agent
Harrar – if the conduct of the third party is so egregious that including it would make the
trial unfair, we could exclude it.
1. Was the search authorized by law?
R v Collins – (1987) (SCC)A search will be reasonable if it is authorized by law, if the law
was reasonable and if the manner was reasonable. What’s authorized by law – power of
plain view, power incident to arrest, search warrant, common law power pursuant to
R v Kokesch – (1990) (SCC) – search that is not legal under statute or common law will
necessarily be unreasonable. Here no RPG and common law power does not permit
PO’s to roam as they please on private property.
Re Gillis and R. – the items to be seized were specified very broadly – all receipts, bank
books, bank notes etc. The JP must consider whether the production of the items will
produce evidence. Here JP did not do that. Objects must be described with sufficient
precision. Police had to return all things seized.
Police statutory authority (preconditions in each ex RPG)
S.487 – search warrant “reasonable grounds to believe”, in Laporte the
preconditions existed but the scope of authority was not wide enough to include a
person. A person is not a building, receptacle, place. New DNA provisions
under this section. (487.04-487.09) Has to have RG to believe, information
under Form 1. (a)something that an offence on or in respect of has been
committed (b)anything that can be used as evidence (c)anything that is intended
to the be used for the purpose of committing offence (c.1) any offence-related
property – cannot seize a house. Scope: go search, seize the thing and make
report pursuant to s.489.1
S. 487.11 – statutory expression of search in exigent circumstance.
Preconditions exist but not practical to obtain a warrant
S. 489 (1) – if executing a warrant, may seize additional items
S. 489(2) – any PO lawfully positioned who sees evidence, may seize it. Used to
justify “plain view” seizure of evidence, if readily available to him – things not
S. 487.01 – residual warrant, no JP, SCJ or OCJ judge only, reasonable grounds
to believe that there is some information concerning the offence (constitutional),
(c) – no other section for warrant (a) – use a technique/device or investigative
technique to do anything that will lead to information. (b)judge can refuse the
S. 256 – taking of a blood sample where a person caused bodily harm and is
unable to consent to blood sample
MacIntyre v AGNS- after a search warrant has been executed and objects found,
member of the public is entitled to inspect the warrant and the information upon which
the warrant has been issued. In response to this Parliament enacted s. 487.2 –
everyone who publishes info wrt to place to be searched, identity of the person without
the consent (unless a charge has been laid) is guilty of an offence. Section was found to
be unconstitutional and struck down
R v Hunter – accused has right to reasonable disclosure of information behind the
issuance of a search warrant even if it reveals the identity of an informer. Trial judge
should edit to protect the identity.
2. Is the law reasonable?
Hunter v Southam – search was in conformity with the law but the law was found to be
unreasonable. Statute authorized individuals to roam at large at offices of Southam after
permission of Director given. In order for an authorization system to be reasonable, the
person must be able to assess the evidence in an impartial manner. The person must
not be a judge but must act judicially. Discretion of this director here was unreviewable.
R v Feeney – entering a dwelling house without compelling reasons was found to be
5. Was the search done in a reasonable manner?
Goldman – no reason to search the accused in a restaurant. He was under arrest, the
drugs were not going anywhere. Strip search has to be done by same gender and be
Search incident to arrest
common law power – extends not only to person but to premises under his
1. Arrest must be lawful 2.Search must be incident to arrest 3. Manner in which it
was carried out must be reasonable.
R v Brezack – OCA - officer searching in accused’s mouth for drugs (1949)
Laporte – Court refused to extend power to search incident to an arrest to include
R v Tomaso – unconscious drunk driver. PO collects blood from his bleeding ear. OCA
– seizure was unreasonable because blood was collected two weeks before the
R v Caslake – (SCC) there has to be reasonable connection between reason for arrest
and the search conducted. – wouldn’t work if arrested for traffic and car searched
extensively. Police must articulate reason for search. Automobiles legitimate objects of
search incident to arrest. Here, police searched the car because all impounded vehicles
had to be inventoried. This was not valid connection
R v Stillman – police took bodily samples from the accused under threat of force –
clipping hair, buccal swabs, teeth impressions. Accused blew his nose and threw the
tissue away – police seized it. There are special provisions in the code for DNA and
bodily samples, can’t seize them without engaging those provisions. This was an abuse
of police power. Bodily samples were not in danger of disappearing. Discarded tissue –
majority holds that it violated s.8 (5:4 majority) because through his lawyer, the accused
did not consent to taking any bodily samples. Minority – he abandoned it and gave up
all privacy rights.
R v Rao – PO seizes has oil after entering business premises without a warrant. Statute
which authorized this was held to be unreasonable – could obtain a warrant in
circumstances where it was practicable, otherwise s.8 of Charter is violated.
Right to silence
not defined by highest Courts, stems out of Charter and common law – right to
counsel (10b), common law confession rule and principle against self-
S.7 – under principals of fundamental justice
S.13 of the Charter – prohibits self incrimination. Own testimony can’t be used to
R v Wray – very coercive, overbearing interrogation. The confession was inadmissible.
Evidence was admitted as a result. Unfairness had nothing to do with it. Reliability was
Ibrahim – voluntariness rule on p.356, Crown must show voluntariness BARD – it has
not been obtained by fear of prejudice or hope of advantage held out by a person in
R v Rothman – To what extent can an undercover police officer dressed as a cellmate
obtain a statement from a detained person. Here it was permissible because he was not
a person visibly in authority. There was no voluntariness problem.
Re Section 94(2) of the Motor Vehicle Act – defines principles of fundamental justice,
found in components of our legal system. (s. 7 of the Charter)
R v Hebert – Expressly overruled Rothman on Charter principles. The confessions rule
is not only concerned with reliability but with fairness. The facts were similar to
Rothman. Hebert made a choice not to talk to the police. The right is only treated by
detention. It operates after right to counsel was exercised, even if counsel is present. It
doesn’t apply to regular cellmates provided they are not acting as police informants or
agents. Undercover police officers may not actively elicit answers.
Statement not obtained in situation of oppression
Has to be voluntary, not a product of threats
R v Oickle – reasons to suspect the accused but not to arrest. Interrogation videotaped.
He was told that it would be better to confess. In order to exclude
1.Threats/inducements and oppressive circumstance (ex violence, offer of leniency,
depriving of food/water/bathroom – tends to produce false confessions.) 2.Operating
mind not present (Appreciation of the consequences is not the standard. In Whittle, a
psychiatric homeless person believed he had voices in his head telling him to confess,
acceptable) 3. Conduct that shocks the community even if there is no question that
confession was voluntary (ex. Truth serum, Impersonating lawyer) “It would be better for
you if you confessed! You would feel better!” – no power to make it happen, nothing
they are offering, morality of the accused comes into play. Police questioning here was
never hostile, aggressive or intimidating, everything was videotaped.
R v Chambers (SCC)(1990) – right to silence at trial. Attempted to use the accused’s
silence as evidence against him “Why didn’t you tell this the police earlier?”. The Crown
was alleging recent fabrication. New trial ordered.
R v Noble (SCC)(1997) – accused hands over DRVL to witness. Judge uses DRVL to
add weight to Crown’s case. Adverse inference can’t be drawn from the accused’s
silence. S.11 (d) – The right to be presumed innocent also plays a role here – The
burden always rests with the Crown and as such, the accused can’t be used in building
the Crown’s case. Nothing prevents the trial judge from commenting that evidence on a
particular issue is uncontradicted. Alibi defences create exceptions to the right of silence
– failure of the accused to testify and expose himself to CE on an alibi defence may be
used to draw an adverse inference about the credibility of the defence.
Right to counsel – s.10b)
Stands for: right to advice, right against self-incrimination. Law is complex.
Average person doesn’t understand it.
Detention = control/compulsion
Brownridge – (1972) – (SCC) charged with refusal to provide a breath sample. Right to
counsel refused. Waiting for right to counsel to be implemented was a reasonable
excuse in this situation and the acquittal was restored.
Chromiak – (1980) – no right to counsel with roadside, not enough time for habeas
corpus. SCC holds that being pulled over on the side of the road does not constitute
detention and so no right to counsel arises.
Therens – (1985)(SCC) – reject Chromiak. There was a detention with roadside stop.
The person is not free to choose. Police assume a certain degree of control when they
pull people over on the side of the road. There is criminal liability if the person does not
Thomsen – (1988)(SCC) – road-side detention. Full Court agrees that the rider was
infringed but it was saved under s.1
R v Moran – (1987) (OCA) – psychological detention = 1.demand/direction
2.acquiescence in the deprivation of liberty. Gives factors to consider if we want to
decide whether the accused is detained by the police. 1.precise language 2.whether the
accused came himself 3.whether the accused left 4.state of investigation 5.RPG
6.nature of questions 7.subjective belief wrt detainment. Here it was in the investigative
stage, not accusatory.
R v Mickey – (BCCA) told police that he witnessed a murder but gave a lot of details
known only to the killer. The role changes once he is a suspect. At the outset it was
voluntary and no right to counsel was triggered. Once he became the suspect, he
should have been given his right to counsel. New trial given.
R v Hawkins – police asked to speak to him, he chose the police station. Unbeknownst
to him, police crystallized case against him. NFCA says that there was a detention once
it became clear that the accused is a suspect. The SCC overturned and decided that
there was no detention with very brief reasons.
R v Elshaw – in the dissenting judgment, LeDain’s concept of psychological detention
was rejected. Such a requirement would hamper police efforts (SCC – L’Hereux-Dube)
R v Feeney – Sopinka found that right to counsel was violated as soon as the PO
touched Feeney’s leg to wake him up. L’Heureux-Dube finds that the police must be
permitted the latitude to assess and gain control of a situation which could potentially be
R v Bartle – (SCC), once police inform about the right to counsel they have to implement
it. They must inform without delay. They have to give reasonable opportunity to
exercise the right. They have to refrain from eliciting further evidence from the accused
until opportunity taken.
R v Brydge – (SCC) – police question about murder years ago. He asks about legal aid.
The answer is not clear. Trial acquits. SCC restores acquittal. Right to counsel is
limited by one’s ability to pay. Availability of Legal_Aid advice should be given in all
cases, people could be ignorant of it and conclude that they won’t be able to afford a
lawyer anyway. Procedure changed (1800 number implemented)
R v Bartle – (SCC) – takes Brydge a step further. Detainee should also be told that the
1800 number is available. Police must facilitate the exercise of the right to counsel.
Here the 1800 number was not mentioned and it resulted in a new trial.
R v Manninen – police have to give reasonable opportunity to exercise right. Here he
asserted the right to counsel right away – should have offered him the right to call right
away, should have stopped interrogation as soon as asserted They must offer the
accused the use of the telephone. (SCC)
R v Baig – (SCC) – There has to be an assertion of the right to counsel. No
implementational duties until the accused desires to exercise the right.
R v Leclair – reasonable opportunity. If lawyer is unavailable, person is required to
contact another. There was no urgency here. Eliciting evidence includes participation in
a line-up. Opportunity was not reasonable here. He asserted the right but couldn’t
reach lawyer. Once asserted, the police cannot continue with the investigation. That
was not a waiver. (SCC)
R v Burlingham – arrested on one murder and questioned about another. Police
disparage his lawyer. They question him and talk about plea bargain without lawyer
present. He asserted his right. Police were behaving badly. There was no sense of
urgency here such as another murder about to happen. (SCC)
R v Prosper – no constitutional duty to provide free duty counsel system but access
could be weighed in the assessment of reasonableness. (SCC)
R v Clarkson – drunken confession, she said that there is no point in getting a lawyer.
Acquittal restored. Waiver must be clear and unequivocal with full knowledge of
consequences and full knowledge of rights otherwise it has no meaning. There must be
an awareness of consequences (SCC)
R v Smith – robbery 5 months prior to arrest. (SCC) Accused makes “off the record
statement”. He didn’t even want to call a lawyer because it was too late. He was not
diligent, didn’t even try. Minority – police could have waited, reasonable for Smith to
Remedies for Charter breaches
R v Oakes – 1.The objective must be pressing and substantial 2.The means must be
reasonable and demonstrably justified. (a)there has to be a rational connection between
breach and objective (internally rational and the means must be carefully designed, not
arbitrary, unfair, based on irrational connections) (b)there has to be a minimal
impairment of the right (means should impair as little as reasonably possible, degree of
deference given to Parliament, depending on what issue (c)proportionality between the
deleterious and the salutary effects of the breach (what impact does this breach have on
the Charter litigant, there could be other rights at stake ex. Public interest)
Edmonton Journal – (SCC) – test has to be employed contextually. We have to look at
the nature of the right being infringed. There is a degree of flexibility that shapes the
test. The law has to be “prescribed by law” – can’t justify police conduct under s.1, can’t
justify if the law is too vague
RJR MacDonald – greater deference to Parliament may be given where it concerns
competing rights of various societal groups.
Libman v Quebec -
S.1 cannot be used if the law is too vague. It cannot be used to justify conduct of
police “prescribed by law”
“to the extent of the inconsistency” s.52 – could have as a remedy:
1. Strike out provision entirely
2. Reading down, tailor words of provision to be consistent with Charter
3. Reading in, add words ex in R v Grant – added that searches are not
authorized where it is feasible to obtain a warrant
4. Suspending the declaration of invalidity for a period of time, give time for
Parliament to act
5. Constitutional exemption for the specific litigant
s. 24(1) – just, appropriate remedies, abuse of process, personal breach,
personal oppression, not a decision on the merits of the case
R v Jewitt (1985) (SCC) – prior to this decision, the SCC said that there is no inherent
power in the trial judge to stay proceedings. Police drum up crime to set up the
accused. There is a right to appeal from a stay. It is tantamount to an acquittal. It
should only be used in the clearest of cases. Where compelling the accused to stand
trial would violate the community’s sense of fair play and decency.
R v Keyowski – (1988) (SCC) Mere fact that there were 3 trials is not enough to amount
to an abuse of process. Accused would have to show prosecutorial misconduct.
Considered the fact that the accused was not in custody and that the proceedings didn’t
take a long time
R v O’Connor – (SCC) sexual assault by priest. Crown ordered to produce medical
records of victims. Crown didn’t comply. Judge threw it out as an abuse of process.
This was bad conduct but not enough to amount to abuse of process. We must bifurcate
the right and the remedy. S.7 was violated but this was not the clearest of cases for the
remedy. Potential: acquitted and then charged with perjury, pretrial delay, pre-charge
delay, police misconduct, Crown misconduct, unfair trial because witnesses died, Crown
and judge meeting
R v L.(WK) – (1991) (SCC) – accused argues abuse of process because allegations are
30 years old. This was not the clearest of cases. There is no limitation periods in
criminal law. Not the length of the delay that matters but the effect of the delay.
Exclusion of evidence under s.24(2)
dramatic departure from common law. Illegality had no bearing on admissibility
(could also exclude under 24(1) if it would make the trial unfair, also s.7 and
11(d), despite Therens where SCC holds that 24(2) is the only section to be used
for this purpose.
uniquely Canadian, US has automatic exclusion, fruits of the poisonous tree
could argue that it destroys respect for the law because the guilty may be
allowed to go free but if we don’t exclude we are in fact condoning the illegal
conduct of the police and that leads to a lack of respect for the law also.
R v Duguay – 3 youths without RPG, unlawful arrest. (OCA) Mackinnon would exclude
after considering 1.seriousness of the breach (not acting in good faith here) 2.
seriousness of the offence (minor offence here) 3.urgency that would explain conduct
(none here). Exclusion affirms Charter values. Victim would not want his child treated
this way. Zuber would not exclude. Focuses on wording “admitting would bring admin
of justice into disrepute” He would apply the “shock the community” standard. In effect
the Court is being asked to suppress the truth. We should presume that it is admissible.
If violation does more harm than the crime itself, then we would not admit. Conduct of
police here was not arbitrary. SCC agreed with the OCA. It is not a matter for appellate
review (s.24(2) unless there is an error in principle or conclusion is simply unreasonable.
R v Collins – (1987) (SCC) – choke-hold by PO to prevent swallowing of drug. No RPG
therefore it was a s.8 violation. Seminal case on 24(2). Burden of persuasion on the
accused. Would admitting do more harm ie Would admitting deprive the accused of a
fair trial? Would it condone the improper conduct? Disrepute could flow from exclusion
and admission. Community shock is not an empirical notion. Public could be
uninformed about seriousness of the breach. Judges must play the protective role.
“reasonable person dispassionate, fully appraised of the circumstances” 1. Factors that
could relate to fairness – ex nature of right infringed, ex right against self-incrimination.
2. Seriousness of breach – flagrant? Technical? Urgency? Good faith? Other techniques
3. Would disrepute result – If exclusion of evidence is less likely to lead to outrage.
Here the evidence was real but disrepute would follow if person was allowed to go free
but greater disrepute would result if the Court would not dissociate itself from the
conduct which was flagrant and violent and so the evidence was excluded.
R v Burlingham – (SCC)-confession to girlfriend, evidence led to finding of a gun. How
the evidence was obtained is a better concept that “real” evidence. Here the gun is
excluded because police would not have found it but for the breach. Conscriptive vs
non-conscriptive distinction. Administration of justice would be hurt if not excluded.
Here, they order a new trial. They look at the seriousness of the charge (murder).
There is additional evidence.
R v Stillman – (1997)(SCC) – violent, sexual killing. Trial judge admitted all the evidence
including the buccal swabs and hair samples because it was real. SCC (Cory) finds that
appellant was forced to give evidence to incriminate himself. It was conscriptive – it did
not exist in a useable form for the state. Trial fairness is at the heart of 24(2). If it would
make the trial unfair, that’s the end of the analysis. Derivative evidence which arises out
of conscriptive evidence will also make the trial unfair. Conscriptive evidence –
Discoverability principle – if Crown can show that evidence would have been discovered
anyways, it will be admitted. Here, discoverability did not apply to buccal swabs and hair
samples. The discarded mucous tissue was discoverable. If conscriptive and non-
discoverable exlude it because it will necessarily make the trail unfair, can’t be saved by
good faith. If non-conscriptive and discoverable, consider seriousness of the breach and
the effect of the breach (Kleenex survived this approach) Why is it that conscriptive not
admitted – sanctity of the body, right to autonomy. If it does not involve the body (ex
emptying pockets) it is not conscriptive but could still be excluded under non-
1. Classify conscriptive vs non. If non, admission will not make the trial unfair and Court
will consider seriousness of breach and repute of Admin of Justice
2. If conscriptive and Crown fails to show that it was discoverable then trial unfair and
Court will exclude
3. If conscriptive and Crown demonstrates that discoverable then consider seriousness
of breach and repute of Admin of Justice
R v Feeney – Court adopts the Stillman analysis. Ex cash – non-conscriptive and
discoverable. Fingerprints conscriptive and non-discoverable. Here the violations were
very serious. Cash was excluded because of this serious Charter breach
R v Silveira – (SCC) – Police confines occupants to the house while waiting for warrant.
Accused was not allowed to contact lawyer until he provided information about locker
combination. S.8 was violated but evidence was not excluded. Here there were exigent
circumstances present – protection of the evidence. No egregious conduct on part of
the police. They were acting in good faith while waiting for the warrant to arrive.
R v Evans (SCC) (1996) – police acting on anonymous tip knock on door, smell MJ and
arrest appellant. The search and entering of the premises were conceded to be
unreasonable. The search was not authorized by law. However, the admission of this
real evidence (drugs) would not make the trial unfair. Lawful techniques existed for the
police – ex search garbage, Hydro inquiry. Police were acting in good faith and thought
they were acting in accord with Kokesh. Exclusion of this evidence would lead to more
disrepute than admission.
Role of Defence counsel
represents the interest of the client but also has a duty to the Court
in the adversarial system, fairness seems to be the driving force. We believe in
truth-finding but not at any cost.
Competent advice, not bound to follow unreasonable advice from the client ex
perjury, calling alibi which counsel knows is false
Cannot put false information before the Court
Can test the Crown’s case but there are limits to what can be done
Need to keep a distinction between innocence and legal guilt
If lawyer knows that client guilty, can still attack on jurisdiction, breach of Charter
etc – that’s ethical but he may not mislead and suggest that somebody else did it
R v Murray – went to the crime scene and retrieved the videotapes, held on to them,
charged with obstruction. Actus reus was made out – he concealed them knowingly.
Intention – he claimed that he was going to disclose them when Karla was testifying.
Court entertained a reasonable doubt in his favour.
Role of Crown Counsel
R v Boucher – objective and impartial, not win convictions but put evidence before the
court firmly but fairly
Rules derived from Crown Policy Manual, Law Society Rules, Inquests such as
Representative of AG, AG could give instructions wrt to law to counsel which
could be politically motivated
Always the decision of the police to lay the charge
Crown has discretion – stay, prosecute, withdraw
Criteria are 1.Reasonable prospect of conviction If yes then consider: 2.Public
interest (p.553) factors to exclude from consideration, factors to include – does
not have to conclude that a conviction is more likely than not.
Have to consider availability of evidence, admissibility of evidence (Khan,KGB),
Public interest considerations – how serious is the offence, how important is the
issue, minor property crimes to be kept in mind – instructed to withdraw if proper
restitution can be made.
96% resolved with guilty plea.
Potential for misconduct in jury addresses/CE ex. R v SF – p. 546 – where CA
personalized his role in the case. He war sarcastic and disrespectful towards the
Separation between judge and Crown to maintain fairness
Krieger v Law Society of Alberta – CA on a murder prosecution. Blood on the deceased,
not the blood of the accused. Krieger says that results wouldn’t be available. SCC says
that Law society has right to intervene. Certain acts relate to lawyer’s conduct, in such
situations it is right to intervene. It is not right to interfere with prosecutorial discretion
wrt withdrawal of charge, proceeding, stay. Only non-disclosure which is flagrant is
subject to review.
People who are merely charged, presumed innocent
We are concerned about the risk of the person reoffending while on bail
1965 Friedland study precipitated reform. Findings: 1.people who should’ve
gotten it were denied. 2. Disturbing relationship between pretrial detention and
outcome – detained found guilty more often.
Inference by the jury = person who is in custody is guilty. With juries, we try to
keep it a secret that the person is in custody.
The judge knows because it’s in the paperwork. We hope that he can disabuse
himself of the fact
If out of custody, it would be easier to assist with the defence
Spirit of the accused sinks while in custody. Looks worse.
Systemic prejudice wrt race – Black accused 27X more likely to be denied bail
Plea – incentive to get it over with even if not guilty.
If in jail – loses job, relationships – all before trial
1972 Bail Reform Act changes the situation: 1.onus on the Crown to prove while
bail should be denied 2.reduce the need for cash, accept promise
s.515 – show cause hearing – State must justify why detained on BOP
s.522 – s.469 offences such as murder, accused will carry the onus
s.515(6) – accused’s onus, indictable while released on bail (both unproved
allegations), terrorist offence, not ordinarily resident of Canada, s.145 Bail
offences “breaching your bail” These were found to be constitutional in Pierson
If it is not a s.469 offence – JP or Prov Court Judge will do them (99% - done by
JP. S.469 – SCJ deals with them
S.518 – evidentiary rules that govern the bail process, probability of conviction,
rules of evidence are relaxed, hearsay evidence admitted,
Sometimes accused may CE Crown witnesses to test the strength of the Crown
S.517 – publication ban on bail proceedings so that trial fairness is not affected
S.515 (10) Criteria for detention in custody (a) necessary for attendance in Court
(b) necessary for protection of public (c) necessary to maintain confidence in the
administration of justice.
For (a) consider 1.post offence conduct (ex fleeing, extradition) 2.ties to the
community (job, sureties, assets, relationships) 3.public figure? 4. previous
For (b) consider 1.reputation 2.pedophile 3.domestic violence 4.drug trafficking if
For (c) consider if offence is brutal and there is good circumstantial evidence
R v Morales – “if it’s in the public interest” – struck down as too vague. Parliament
responded by new language “undermine confidence” and a list of factors
R v Hall – didn’t strike it down, 5-4 split, dialogue between Parliament and SCC. Here,
strength of the Crown’s case, gravity of the offence were considered. Also, fear
expressed by the community was also considered. There will be just cause for denial of
bail if denial can occur only in a narrow set of circumstances. Denial might be necessary
to promote the proper functioning of the bail system. The Court ducked the issue of “any
other just cause” – this could be unfair.
Elections and reelections
Failure of the Crown to elect results in a summary offence trial
Election is not subject to review unless the Crown was animated by improper or
arbitrary motives – rarely happens, permissible to proceed by indictment solely to
obtain the accused’s fingerprints.
Crown can usually reelect down to summary because accused’s consent is
Crown can withdraw one information and enter another one – permitted unless
there is an abuse of process
Accused may reelect sometimes with consent of Crown and sometimes as of
right – s.561 (ex. Can go from SCJ to OCJ with consent. Can go from jury to
judge alone as of right before prelim and 15 days after prelim)
S.567 – if co-accused, jury trial if they can’t agree
Only on request
Is there sufficient evidence – discovery of Crown’s case. Defence has ability to
get to know witnesses. Only with indictable or hybrid if Crown elects indictably
but not with provincial exclusive
S.535 – goal
S.540 – transcripts made, accused if unrepresented asked if he wants to call
Why doesn’t defence call witnesses 1. Don’t want to alert crown about defence.
2.Risk improving Crown case 3. Low threshold for the Crown, calling witnesses
would be useless.
Result of prelim – discharge (complete or partial) or stand trial
S.548 – test for evidence
S.549 – prelim can be waived by the accused (Why? – guilty plea, cost of lawyer
reduced, don’t need further disclosure) Crown has to consent to waiver (s.715 –
transcript could be used for trial – could withhold consent if witnesses are old or
S.574 – Preferred indictment – broad powers, Crown can go to new charges.
Where prelim reveals new information, prosecutor can add those charges to the
indictment even if not in the original paperwork.
Accused can also consent to bringing in other charges to the indictment provided
that they were committed in the jurisdiction.
S.577 – Direct indictment - Regardless of the finding of the preliminary inquiry,
even if Crown gets an unfavourable result. Extraordinary. Crown can bypass the
prelim altogether (Bernardo). Strong public outcry, protection of privacy and
No right of appeal from decision of PIJ – limited scope of review (natural justice,
lack of jurisdiction but no review of errors of law)
S.548 – test for sufficiency
R v Chabot – charged with second degree murder, preliminary inquiry judge commits to
trial for first degree murder. Dickson (not his best judgement) – provision only mentions
that the PIJ should inquire into the charge. Justice shouldn’t be able to lay charges
pursuant to rumors, accusations. Parliament responds by s.535 rewording – limit to the
same transaction, not entire life of the accused.
United States v Shephard – (SCC) (1977) – sufficient evidence on which a jury properly
instructed could convict.
Montelleone – trial said that not enough evidence to go to jury. SCC reversed. Crown
had enough to go to jury. No exclusive opportunity, arson evidence inconclusive, origin
not determined. Crown evidence circumstantial. Evidence consistent with both guilt and
Hodge’s Case – if evidence is circumstantial, have to find that the evidence is only
consistent with guilt and not with both guilt and innocence.
R v Nelles – nurse charge with murdering 5 babies, discharged after preliminary inquiry.
The judge weighed some evidence. He was not entirely consistent with Montelleone.
The woman was innocent
R v Charemski – consistent with Montelleone, cause of death undetermined in this
murder case but there was motive as well as premature knowledge of the murder. SCC
decides that there is still enough to go to jury. Charemski was dropped by the Crown
after this for no reasonable prospect of conviction.
R v Arcuri – entirely circumstantial evidence of first degree murder. McLachlin for the
majority: judge should not weigh the evidence but has to consider whether elements
can be reasonably inferred from the circumstantial evidence. Limited weighing has to be
done. Judge doesn’t decide if he believes but if believed, could the evidence support the
inference. If it can go both ways than the judge must discharge at prelim. This is a
rather bid departure from Montelleone.
R v Hynes – PIJ not a court of competent jurisdiction for excluding evidence under 24(2).
Voluntariness of confessions can be determined right at the outset but trial judge is
better situated to exclude evidence based on other principles such as non-relevance etc.
Disclosure vs Production
Disclosure = access to information in possession of the Crown
Production = access to information in possession of third parties
1. prevent miscarriages of justice (ex Morin, Milgard)
2. efficiency – defence can advise wrt plea bargaining, pleading guilty, available
3. Non-disclosure is an abuse of process. There is an imbalance of power.
1. It can prolong the proceedings if there is complicated issues
2. It could undermine the search for truth – can intimidate witnesses, fabricate
alibi, put together a defence once he knows what limits there are to the Crown’s
s.603 – defence has right to disclosure
Common law guides disclosure.
S.278.1-s.278.91 – specific regime for production of third party records.
If Crown already has it – there is no privilege because the third eyes obliterated
Defence has to show that it is in the interest of justice to disclose
In application for production, owners of records have independent standing.
If unsatisfied with Crown disclosure, could bring Stinchcombe application to
disclose. Crown could still refuse because private etc. Judge makes the
decision and might stay the proceeding in the clearest of cases if prejudice is
irreparable. Could attach conditions to disclosure (ex. Watch video at police
station only). It could be privileged under a civil matter where there is an intact
solicitor client privilege.
If Crown wants production – search warrant. If defence wants it, brings
O’Connor application. 1.application – s.7 right to make full answer and defence
vs. s.8 right to privacty 2. Defence has to show that information is likely relevant.
3. Judge looks at it and decides how much is sufficiently relevant to go to
defence. Trial judge – may develop bias after looking at the information. We
hope that he can disabuse himself from that.
Non-sex Stinchcombe O’Connor
Sex Stinchcombe + s.278.2 s.278 to s.278.19
R v Stinchcombe – Lawyer charged with fraud. Statements of his secretary not
provided. Crown has an obligation to produce information but other ordinary citizens
don’t have that obligation. Fruits of the investigation are public property. Crown must
disclose all that is not clearly irrelevant or privileged before defence makes election.
Obligation continues throughout trial. Exculpatory or inculpatory information, witness
statements, addresses, video/audio tapes, criminal records of witnesses and accused,
accused’s statements, police reports, scientific reports, documents, photographs, search
warrants, wire-tap, credibility info, ID info. Normally triggered by defence letter where it
is requested after initial disclosure. Where informant’s safety is in issue – broken only
when there is innocence at stake (Liepert).
R v O’Connor – defence has to show likely relevance. Stage 1 – Show likely relevance.
Stage 2 – Is the material in fact relevant. Does relevance outweigh privacy? Weigh
salutary vs. deleterious effects. There has to be a formal written application and written
grounds for relevance and subpoena which is served on Crown, witness and custodian
of records. All have standing in this application. There is funding from the ministry for
witness legal fees. List five factors which the judge must look at – 1. Necessary for
defence 2. Probative value of infor 3. Reasonable expectation of privacy 4. Production
premised on bias (Nuts or sluts) 5. Potential prejudice to dignity, privacy and security.
The onus is on the defence here unlike disclosure where the onus is on the Crown.
Conditions could be attached to production.
R v Carosella – files destroyed by sexual assault center. Statements were not very
relevant but SCC restored the stay. They were not happy with the destruction of records
and recognized that prejudice resulted to the accused.
R v Eagger – Is there a reasonable possibility that limiting access will limit full answer
Production in sexual offences – the new provisions after Carosella
For sexual offences where the complainant has a reasonable expectation of
privacy, the defence must follow. The defence must show that there is likely
relevance but also that the relevance outweighs the privacy interest. There is a
list of what is insufficient grounds to establish likely relevance in the CC
How are they different from O’Connor? The threshold is higher. There is
balancing at Stage 1 of the test (“interests of justice”). Right of appeal for
complainants created. Factors listed s.278.3(4) – What does not amount to likely
relevance. At Stage 2, judge looks at them and possibly edits. 3 other factors
added from L’Heureux-Dube’s dissent in O’Connor – 1.extent to which this would
frustrate the reporting of sex offences 2.effect on treatment of victims 3. effect on
integrity of trial process
R v Mills – upheld constitutionality of new provisions. Deference was given to
Parliament on these issues. Recognized equality rights of complainants and witnesses.
This was brought before the SCC by the complainant. (s.8 and s.15 violated)
Change of Venue
S.599 – Court can change if it appears expedient to the ends of justice
This is done when a fair trial cannot be carried on.
If judge seems partial, would have to raise reasonable apprehension of bias as a
ground of appeal
To show that it would be wise to change venue – newspaper, publicity evidence
Used more in smaller cities.
R v Ponton – sympathy towards the accused. Crown brought change of venue
application which was granted because the jury could see the protests outside.
R v Suzach and Pennett – gruesome and well published murder of police officer. We
only allow change of venue if all of the safeguards will not suffice to rid the trial of
partiality among jury members. Here evidence created the prejudice because it was so
strong. Change of venue would not help.
96% resolved by guilty pleas. Important to promote efficiency.
Subject to academic criticism – destroys the notion of justice. Resource saving
is the strongest principle for it. There is symbolic remorse only, not true. Truth
may fall by the wayside. What about the victim – often wants to tell the story. It
is done behind closed doors. There could be public dissatisfaction like with
S.606 (4) – lesser and included offence permitted
There is usually an admission of facts and guilt
Defence can dispute the facts but usually agrees
Sometimes character evidence is called and sentence imposed
Mitigating factor on sentencing.
Joint submission of Crown and defence
1. Very often leads to withdrawal.
2. Agree not to seek dangerous offender ruling
3. Reduction in charge, lesser included offence. Use of summary instead of
4. Submission wrt sentence – judge does not have to follow joint submission
but needs a good reason to depart
5. Promise to limit embarrassment.
6. Promise not to try by jury
Crown should look at strength of the case. Should consult with the victim. If
Crown can’t prove the case but accused wants to plead guilty, ethically there is
a duty to report to the defence. Shouldn’t it be enough that person admitted
guilt – Our system is about fairness as well as truth seeking.
Accused can give:
1. Information about body location
2. Help with prosecution of co-accused
3. Certainty of conviction if case is not that strong
R v Adgey – When should an accused be permitted to withdraw a guilty plea? Here he
indicated that he wished to challenge guilty plea. Trial judge has a duty to ensure that
1.He understands the charge 2. He truly wants to plead guilty 3. It is established on the
facts that he was in fact guilty of the offence. Majority finds that the accused here was
represented, no duty on trial judge to get involved. Normally trial judge will question the
accused to make sure that he understands. (SCC)
R v D.E - Young victims don’t want to testify. Years later they want to tell their story.
Abusive for the Crown to proceed where the accused honoured the agreement to stay
away from the complainants. (Trial finds this) There was no plea taken, no trickery, no
disruption to his life, nothing improper done by police. Appeal allowed. (OCA)
R v Hansen – withdrawal of guilty plea. AG refused to consent to first degree murder
preferred indictment. He finds out about rejection. He wants to plead guilty to second
degree. On appeal, he wants to withdraw. He was psychologically disturbed at the time
of the plea. Crown’s mistake prejudiced the defendant (ManCA)
R v Rubenstein – trial judge refused to accept joint submission. Accused wants to
withdraw the plea. Judge imposes 5 year sentence after rejecting joint submission.
Parties know that judges are not bound by joint submissions.
R v Lessard – When doe a trial judge become functus officio? Found him guilty, then
reopened and permitted the defence to call evidence and then acquitted. There is no
reason why that shouldn’t be done before sentencing. This is different from trial with
Pleadings and duplicity
Information is the pleading in a criminal trial
In the past – defect in pleading – quashing of the procedure. There is more of a
practical approach now (Is there any prejudice towards the accused?)
Information and indictments are treated the same for these purposes
s.581 – basic requirements for the drafting. (1) single transaction rule and
charge an offence known to law (2) describes words to be used (c) very broad (6)
relates to s.583, bottom line is always s.581, have to give the accused the
chance to identify the transaction
s. 583 – these things will not be considered to be insufficiencies ex. It does not
name the person injured (f)it does not state the means etc.
s.601 – provides the accused the ability to complain about defect. Amendment.
Indictment can be defective due to 1.Insufficiency (doesn’t allege an offence) 2.
Duplicity or multiplicity (single count charging two or more separate offences,
each count has to relate to one offence, evidence that comes out could lead to a
finding of duplicity, they could be fine on face value) 3. Improper joinder of counts
Duplicity – s.590(1) not defective if charging in the alternative. Says that it
should not be overly technical. Duplicity leads to confusion if there is one or
more offence set out.
R v Brodie – 1936 case, very technical view of sufficiency. S.583 enacted as a response
to this type of approach.
R v McKenzie – (1972) (SCC) – charged with theft of $16 from employer. Majority
BCCA overturned his conviction. Theft could be committed in a number of different
ways. It wasn’t clear from the information in what manner, this theft was committed.
SCC finds that it was a good charge. Accused could have sought particulars.
R v Cote (1978) (SCC) – without lawful excuse not mentioned on the information but
SCC finds that it was sufficient because it identified the section number. We have to
resist the technicalities.
R v Wis Dev Corp – (1984) (SCC) – information quashed because operating the aircraft
illegally could be done in different ways – inconsistent with McKenzie
R v B(G) – sexual assault on child. Crown could not establish the date of the assault
(the year). Normally date is an essential element. SCC finds that the indictment should
have been amended to allow for a 2 year period like the evidence showed. Time is not
as essential anymore. What’s sufficient will depend on the type of offence. It could be
essential to establish a defence.
R v P(MB) – date was found to be essential in this child sexual assault case. (1994)
(SCC). Allegations referred to a certain trip. Accused had alibi evidence – he was in the
hospital at that time. Time was essential here. There would be a prejudice to the
accused after he started calling witnesses if amendment was allowed.
Re Warren – hybrid offence. On the day in Court, Crown says it will proceed summarily,
accused prepared for preliminary inquiry. CA dismisses the accused’s appeal –
sufficiency does not relate to procedural stuff, just substantive. It’s still the same
R v Sault Ste. Marie – (1978) (SCC) – pollution charge, number of ways in which it could
have been committed ex. Discharging, permitting to be discharged etc. Old common
law rule – each offence has to be on a separate count. Is it possible to do one without
the other? If yes, then it is duplicitous. BUT we must move away from technicalities.
Fairness to the accused is the test. The offence was polluting and the accused knew
what it was all about. The statute does not create several offences, just different ways of
doing it. There was no unfairness here, not duplicitous.
R v Hulan – (1969) (OCA) evidence was multiplicitous. Sexual abuse – several acts.
Defence claims that each should be a separate count. Single transaction rule not
offended here. A transaction can be made up of several incidents. Here was the
continuation of initial intention. Not fair to desire exactness in these circumstances –
young victim. There was no prejudice to the appellant here.
R v Rafael – (1972) (OCA) 24 individuals were defrauded. All in the same count. Here
the offence varied from individual to individual. Offence was committed in different
ways. It was multiplicitous here. S.590 (3) was Parliament’s response to this – Court
can divide a count.
strong presumption of joinder where there is a factual nexus
similar fact rule – compelling reason to join them up, complexity of trial (also),
s.591 governs this
R v Racco – counterfeit money and explosives found also. Defence wanted severance.
There was a strong nexus but defence wanted separate. Court looks at interests of
justice test – not just defendant’s interest but society’s interests also.
Particulars and amendments
providing the accused with more information, s.587 – if necessary for a fair trial
R v Thatcher – Crown had two theories – he did it himself or hired a hitman. Defence
wanted to know which is it – particulars. Court rejected it. Open to a jury to find either
R v Tremblay – Crown wanted to make an amendment late in the trial. SCC refuses to
allow it. Defence had already started its case. It would be prejudicial to the accused.
s.591 (3) – Crown can join up a number of accused or a number of counts.
On p.703 – situations where it would be a good idea to sever the co-accused 1.
antagonistic defences. 2. evidence admissible against one and inadmissible
against the other 3. confession of one could be used against the others etc.
Strong presumption that joint enterprise accused should be tried together –
problems with second trial if there is a lot of publicity, why run the same trial first,
R v Agawa – Severance not required. Story not that credible.
R v Vaas – Two tried for robbery. Crown wanted to call two other co-accused at Vaas
trial. Confession would be admissible against the one who confessed, not co-accused.
It would be hard for the jury to disabuse themselves from that confession. Separate trial
R v Silvini – (OCA) (1991) – same lawyer for two accused. That’s the issue. One
accused changes his plea at last minute. The conflict of interest of the lawyer dictates
Trial by jury
keeps the system in check, one of us participates.
There could be sympathy for the accused, they could disregard the law
Representativeness and Impartiality are the two principles
S.626 – provinces decide how to create pools of jurors
S. 629 – counsel can challenge the array due to partiality, fraud of the Sheriff
There is also the peremptory challenge and challenge for cause.
S.632 – judge would excuse the prospective jurors who fit the criteria. This is
only to be used for obvious partiality - personal relationship, personal hardship
S.634 – peremptory challenge, no reason given, 12, 20 or 4 challenges. If there
are multiple accused, we treat them as one but the Crown is entitled to the total
S. 635 (1) Accused goes first
S.638 – challenge for cause. Most often used s.638 (b) not indifferent between
the Queen and the accused. 2 jurors who are not challenged decide if there is
bias (only if denied by the opponent) Is there a realistic potential for partiality?
Specific challenge – dirt on the juror General challenge – racial bias. Media
publicity knowledge most common.
Challenge for cause – more of a symbolic significance – people may lie to get out
of jury duty or not admit that they in fact entertain this prejudice.
R v Born with a Tooth – Crown challenged because 52 out of 200 were natives. This
was not representative. Defence claimed that it was necessary because accused was
native. Challenge allowed – no affirmative action in jury selection.
R v F(A) – accused moved to Kenora where only 18% of the population was aboriginal.
Requested to be returned to his own community. No evidence that the aboriginal
community views sexual assault any different.
R v Hubbert – fit to stand trial, the accused detained at Mental Health Centre. Wanted to
ask question about bias arising out of this? Judge did not allow it. It would cause more
prejudice to the accused because it wasn’t published. He is entitled to an impartial jury
not a favourable one. Questions to jurors must be narrow. It is not to be a fishing
R v Crosby – judge refuses to acknowledge racial bias
R v Zundel – wanted to ask a series of questions about Jews, if you’re Jewish etc.
Judge refused the challenge. Publicity monger – brought it on himself. Judge went
further than his role in the coded, should have reframed the questions about publicity.
R v Sherratt – realistic potential of bias established. Impartiality and representativeness
are the two important principles.
R v Biddle – sexual assault of women in parking lots. Crown sought an all female jury.
Test: Would the well informed observer be aware of the bias? Case turned on
identification – does not create an apprehension of bias even assuming that they share
the same characteristics. In the SCC, Gonthier held that attempting to modify the
representativeness of the jury by having all women, undermines impartiality.
R v Parks – racial bias. Accused black, victim white. Q1 – asking about unsavoury
individuals Q2 – asking about racial bias. Q1 was inappropriate. Illegitimate activity is
what the juries examine. Partiality has an attitudinal and behavioural component. Q2
gets at both elements of bias. Finds that there is a real bias, acknowledges that there is
R v Koh – all visible minorities
R v Williams – aboriginal accused. Lower Courts refused to apply Parks. We don’t need
concrete evidence of racial prejudice. If there is an air of reality to the prejudice, we
should err on the side of caution. Challenge permitted.
R v Betker – sexual abuse of daughter, accused wanted to challenge based on offence.
The Court rejects the argument. In Parks it was a characteristic of the accused, not
here. It could happen in any case where person charged. Moldaver rejects the
argument that sexual assault was politicized by feminists.
R v KA – Majority upholds Bether. Moldaver overturns himself and now claims that after
Parks, the thresholds is lower and we should allow the challenge. Lists factors why this
sort of offence would be appropriate for challenge for cause.
R v Find – no basis for challenge based on type of offence. Here it was also sexual
assault. We have to have evidence of widespread bias. There is no indication that with
this crime, jurors are more likely to cross the line between opinion to prejudice. We
expect jurors to abhor the crime. That does not equal bias. The door is still open for
offence-based challenge for cause.
Persuade jury of your position
Relate it to the evidence
Inflammatory address can be basis for new trial – like in Boucher on p.878 and
Pisani – improper Crown conduct, incorrect summary of evidence, personal
opinion, inflammatory remarks, in Morgentaler – not correct to say that if they
don’t like the law, they need not enforce it.
Greater latitude given to defence.
If defence calls evidence, they go first. If they don’t, they go last.
Judge has discretion to respond if something entirely new is brought up.
Charge to the jury
Pre-charge meeting allows counsel to inform judge about what should be in the
1.Introduction of basic concepts ex personal views aside. Use evidence only.
Jury not bound by judge’s opinion. Define BARD. Standard charge on expert
evidence. Limited purpose of bad character of the accused
2.Issues defined. Elements of the offence. Legal principles
3. Position of the parties.
4. Concluding remarks – allowed verdicts, how to deliberate, unanimity,
Presumption of innocence and BARD
After charge – counsel can advocate for other items to be added.
Jury’s questions – need to be answered correctly otherwise grounds for appeal.
If the wish to rehear the evidence, judge will force chief and CE
S.647 – presumption of sequestering the jury during trial. Almost always allowed
to go home during the trial. But when finished trial and deliberating –
sequestered, no contact with outside world.
S.648 – publication ban on all matters not before them if allowed to go home
S. 649 – Offence to disclose info about deliberations except for obstruction of
S.644 – can excuse jurors, as low as 10 usually for personal reasons like illness
S.653 – hung juries, if further detention useless, can discharge
Jury unanimity – not very many hung juries, protection for the minority groups
whose voices could be lost. We could argue that this requirement is
undemocratic but this process is unlike any other. It inspires confidence.
S.686 – allows appellate Courts to set aside jury verdicts that are unreasonable
or unsupported by evidence.
GRM – deadlocked jury. Jury: inconvenient to have another trial, go back and try again.
SCC gives a model charge if this is the case. Wrong to say this
R v Thatcher – need not be unanimous on their theory of guilt ex.he himself killed the
wife OR he hired someone else – Don’t have to pick one as long as they all agree on the
R v Tuckey – New problems if we make inquiries into the reasoning of the jury for
sentencing purposes. Might be necessary – on what basis did you find the defendant
guilty (for sentencing purposes) Polling the jury is a common law practice, optional.
R v Pan/R v Sawyer – Pan tried 3 times for same murder charge. At the conclusion of
the 2nd trial, there was an investigation into obstruction of justice. He wanted access to
the fruits of that investigation. SCC agreed that jury secrecy is essential to the proper
functioning. If we have it, we protect jurors, have finality of jury proceedings/verdict. It
benefits the accused – public scrutiny might prevent juries from giving unfavourable
verdicts. Evidence about jury deliberations is inadmissible at trial.
R v Burke – Once jury gives verdict, trial judge is functus officio. Here there was a
mumbling foreman. Trial judge records as not guilty. Next day, the jurors are back and
being questioned. Judge concludes that he has the authority to change this clerical
mistake. SCC send it back for retrial. Reasonable apprehension of juror tainting must
be examined. Law is losing pace with common sense and logic.