Robert Leckey 1999

                                HEALY CRIMINAL PROCEDURE SUMMARY

        Territorial limitations: 478 not try an offence committed entirely in another province
           476(b) where committed within 500 yards of a boundary, may try in either territorial division
           Bigelow (Ont. C.A.) (abduction of child: took legally in Ont., obtained illegally in Alta.): test for
           jurisdiction has become whether any element of the offence occurred in the province claiming
           jurisdiction: (1) continuity of operation from one province to another; (2) commission of an over
           act in that province; (3) registration of effects in that province from acts committed in other
        Change of venue: 599; Ponton (1899): cheering crowd outside jury deliberation room led to
        successful motion
           Lawrence: court must be satisfied that “full and impartial trial” cannot be held there: high
           threshold: 3-year-old newspaper articles insufficient to show reasonable probability of partiality or
           prejudice; chance of recollection diminishes with time

                                         SEARCH AND SEIZURE - S. 8
        Ghani v. Jones (C.A.): Lord Denning sets out 5 requisites for search and seizure at common law;
        Lord Denning argues that Waterfield principle cannot mean that police are unable to prevent
        destruction of evidence by the owner of property associated with crime
        Search: without a warrant: only certain offences; with a warrant: 487-489; or incidental to arrest

With a warrant
       Laporte v. Laganière: human body is not a “building, receptacle or place” for 487(1) (seeking bullet
       in body; “basic inviolability of the human person”); but 487.05 DNA
       Requirements of a valid search warrant under 487(1): (1) informant must present the justice with an
       information upon oath with sufficient factual details to confer jurisdiction; (2) justice must act
       judicially in independent assessment and exercising discretion (cannot rely on good faith of the
       informant: Gillis); (3) warrant must contain sufficient description of the objects of search in relation to
       category and offence [Gillis is general example: mention characteristics such as date, numbers, etc.;
       ordered return of things improperly seized]
       487.01(2) rules out interference with bodily integrity of the person; but 487.05(1) permits obtainment
       of a bodily substance for DNA analysis (487.07(1)(e) authorizes as much force as necessary)
       487.05 sets out high criteria, stricter than in Hunter v. Southam, so Quigley thinks it would be ruled
       487.11 warrant not necessary “by reason of exigent circumstances”
       492.1 tracking warrant: requires not reasonable and probable grounds but “reasonable grounds to

Common law - incident to arrest
     Brezack (Ont. C.A.): Robertson C.J.O.: power of search incident to valid arrest extends to immediate
     environment, including his nearby car
        Incident search must be for specific purpose of making effective the arrest: (1) subduing or
        disarming the arrested; (2) prevent destruction of evidence
        Incidental arrest need not have reasonable grounds
        Search vindicated by finding drugs in Brezack‟s mouth: like subsequent proof in Wray
     Cloutier v. Langlois: search incidental to arrest does not require reasonable and probable grounds
     beyond the grounds sufficient to support the lawfulness of the arrest itself (supporting Morrison)
     Tomaso (Ont. C.A.): Howland C.J.O.: blood collected from bleeding ear cannot be seizure valid as
     “incidental” to arrest effected two weeks later
                                                                                              Robert Leckey 1999

        Stillman: Cory J.: Requirements for a reasonable search:
        1. Authorized by law;
        2. Law itself must be reasonable;
        3. Manner in which search carried out must be reasonable.
                 Criteria for a common law search incident to an arrest: (1) arrest must be lawful; (2) search
                  must be „incident‟ to the lawful arrest; (3) manner of search must be reasonable
            Completely different concerns (than, say, search of a car in Belnavis) arise where search and
            seizure infringes upon a person‟s bodily integrity, which may constitute the ultimate affront to
            human dignity

Consent - incident to duties of police officers
      Dedman: Le Dain J.: discussion of random stop reducing impaired driving done without statutory
               driver‟s compliance doesn‟t eliminate need for police to have been acting under valid statutory
               or common law authority
               Majority upholds police power as ancillary common law power under Waterfield principle [(1)
               whether conduct fell under general scope of police duties established by statute or common
               law; (2) whether duty exercised in unjustifiable way]
               given police power, compliance is not voluntary in any meaningful sense; consent valid only if
               police made clear that it was optional
               Dickson dissenting in part: Waterfield cannot create new powers outside legislation
                necessary to distinguish the duties of police officers from the lawful authority they possess to
                execute those duties
                fact it is a regulated activity confers no greater police power to interfere if regulations are
                complied with
      Colet: Ritchie J.: Provision authorizing police officers to search and enter private property must be
      phrased in express terms
               Interpretation Act does not clothe police officers by implication with authority to search when
               the warrant is limited to seizure
               all criminal provisions are enacted for the public interest, so cannot broaden the authorization
               based on its objectives

    Constitutional minimum standards - warrant required
      Hunter v. Southam: Dickson J.: where it is feasible to obtain prior authorization, such authorization is
       a precondition for a valid search and seizure; search conducted without prior authorization is
       presumptively unreasonable
           person authorizing must be capable of acting judicially; member of the Commission couldn‟t be
           impartial arbiter
           minimum constitutional standard for search and seizure is objective reasonable and probable
           grounds, established upon oath, to believe that an offence has been committed and that evidence to
           be found at place of search
      Noble (Ont. C.A.): Martin J.A.: applying Hunter v. Southam: invalidates writ of assistance searches
      (warrantless searches by designated persons) of dwelling-houses
           Parliament has recognized the special position of dwelling-houses
      S. 487 warrants: (1) information sworn by person applying; (2) warrant issued by the justice if
      satisfied by the information
           S. 487 is a reasonable law, so, under Collins, challenge (1) legal requirements or (3) manner in
           which search conducted
               Attacking a warrant:
                        neutral and impartial authorization? (Hunter v. Southam)
                        reasonable and probable grounds established on oath? (Hunter v. Southam)
                                                                                         Robert Leckey 1999

                    requirement of particularity? (Colet indicates strict interpretation; Times Square Book
                    Store requires level of detail and specificity)

Warrantless searches
 Collins: Lamer J.: search reasonable if (1) authorized by law; (2) law itself is reasonable; (3) manner
   in which search carried out is reasonable: violent throat search unreasonable
    once warrantless, burden shifts for Crown to show it was, on balance of probabilities, reasonable;
       warrantless is prima facie unreasonable
 Warrantless searches:
    exigent circumstances (Grant)
    low expectation of privacy, as in non-criminal context (McKinlay Transport)

Unlawful searches violate s. 8
 Kokesch: Dickson C.J.: illegal search is necessarily unreasonable; seriousness of breach goes to s.
   24(2) analysis
        warrantless perimeter search conducted without authority
        common law rights of the property holder to be free of police intrusion can be restricted only
           by powers granted in clear statutory language
        on facts, property owners weren‟t aware of the surveillance, so no exigency invoking the
           Hunter v. Southam “where it is feasible”

Reasonable expectation of privacy
 Edwards: Cory J.: invasion of third-party privacy rights not determinative of reasonableness of
   search: accused had no reasonable expectation of privacy in girlfriend‟s apartment
        (1) Does accused have reasonable expectation of privacy? (2) Was the search an unreasonable
           intrusion on that right to privacy?
        S. 8 protects persons, not property; but the principles Cory lists relate to property ownership
           and control
 Belnavis: passenger in car has no reasonable expectation of privacy; different with garbage bags than
   with labeled luggage
 B.C. (Securities Commission) v. Branch: Sopinka & Iac JJ.: lower expectation of privacy for
   documents created by a regulated business

Any individual: Arrest without warrant
 494(1) anyone may arrest someone apparently committing an indictable offence, or believed on
   reasonable grounds to have committed a criminal offence, or escaping from and pursued by persons
   with lawful authority to arrest

Special power of arrest of owners, possessors and those they authorize
 494(2)

Powers of peace officers
Breach of the peace
 31(1)

Arrest without warrant:
   495(1) includes power to arrest anyone believed on reasonable grounds to be about to commit an
   indictable offence
 Presumption against arrest: aside from most serious 469 offences, arrest only for public interest, read
   down in Fosseneuve to mean identification, preservation of evidence, or prevent further offence
                                                                                         Robert Leckey 1999

   But 495(3) presumes officer to be acting lawfully
   Storrey: Cory J.: Code requires that arresting officer must subjectively have reasonable and probable
    grounds on which to base a warrantless arrest; those grounds must be objectively justifiable
     this is less than a prima facie case for conviction
   Biron: Martland J.: accused resisted arrest for offence for which later acquitted: validity of arrest
    determined in relation to circumstances apparent to the peace officer at time of arrest
     apparent offence is enough for arrest in 495
     Laskin C.J. dissenting: law has not taken away power of citizen to resist unlawful arrest, though
        he bears the risk if the arrest turns out to have been lawful

Constitutional minimum standards
 Duguay (Ont. C.A.): MacKinnon A.C.J.O.: acquittal upheld when cop arrested youths on suspicion:
   but not every unlawful arrest is necessarily arbitrary under s. 9
    officer‟s “hunch” must have reasonable basis and cannot defend irrational and high-handed
    Healy thinks would have reversed the acquittal post-Simpson: officer did have articulable cause
 Iron (Sask. C.A.): arrest in absence of legal authority is arbitrary
    refusal to extend common law Waterfield authority recognized in Dedman in respect of impaired
        drivers to drivers without valid licenses
 Simpson (1993) (Ont. C.A.): Doherty J.A.: appellant‟s conviction overturned because ss. 8 & 9 rights
   infringed: police searched man‟s pockets when seen leaving a suspected crack house
    where an individual is detained by police in course of efforts to determine whether that individual
        is involved in criminal activity being investigated, detention only justifiable if detaining officer
        has “articulable cause”
    require a constellation of objectively discernible facts that give detaining officer reasonable cause
        to suspect that the detainee is criminally implicated in activity under investigation
    “hunch” may mask discrimination: this is more than a hunch but less than reasonable and
        probable cause
    inquiry into articulable cause is only the first step in determination of whether detention was
        justifiable in totality of the circumstances and thus lawful exercise of officer‟s common law
        powers in Waterfield/Moore and Dedman
    articulable cause detention is wider than arrest
    draws from Storrey the arrest power‟s subjective/objective binary and applies that to articulable

Reasons for arrest
 Gamracy: Ritchie J.: Code is exhaustive and replaces the Christie v. Leachinsky standards on reason
   for arrest: sufficient to arrest “for an outstanding warrant” (29(2))
    Spence & Laskin JJ. dissenting: reason for the arrest means more than that
    Healy argues that s. 10(a) requires specific awareness as to warrant issued – purposive (Hunter v.
       Southam) requires that to make sense of s. 10(b)
    Quigley suggests S.C.C. has given s. 10(a) short shrift, as in moving straight to s. 10(b) analysis
       in Evans (accused arrested for marijuana charge, turning out to be murder suspect)

Entry into premises
 Feeney: Sopinka J.: warrantless entry and arrest in trailer during murder investigation: conviction
     post-Hunter, privacy interest outweighs the police interest and warrantless arrests in dwelling
        houses are prohibited
                                                                                        Robert Leckey 1999

       purpose of the Charter is to prevent unreasonable intrusions on privacy, not to sort them out from
        reasonable intrusions on an ex post facto analysis
       read into the Code prior authorization warrant requirement for entry of dwelling to arrest
       privacy interest is subdued in hot pursuit, but leave other exigent circumstances for another day
       common law Landry requirements such as proper announcement still apply
       Detention began moment officer touched Feeney‟s leg
       But Parliament‟s fuck-you: s. 529.3(2) builds on L‟Heureux-Dubé J. on exigent circumstances

Meaning of arrest
 Latimer: Lamer C.J.: de facto arrest occurs when the state constrains liberty; Latimer knew the reason
    since lawful arrest, it could not be arbitrary under s. 9
    drawing on Whitfield: arrest is (1) physical restraint and words of arrest or (2) words of arrest
       alone if arrestee submits to deprivation of freedom

                       ARBITRARY DETENTION & IMPRISONMENT - S. 9

   Hufsky: random stop of a motor vehicle: discretion is arbitrary if no criteria, express or implied,
    governing its exercise
   Ladouceur: roving random stop upheld by Cory J. as a reasonable breach of s.9, despite Sopinka J.’s
   But concern about discrimination: police using socio-economic status or race as markers: Quigley
   arbitrary has not been defined purposively and so there has been little reason in the s. 1 analysis
   See also Search & Seizure: similar tests, though arguably higher standard for search & seizure under
    Hunter than for detention post-Dedman, Simpson & Ladouceur

                                   RIGHT TO COUNSEL – S. 10(b)

Triggering mechanism
 Therens: Le Dain J.: detention in s. 10 sense in roadside breathalyzer test
     detention whenever agent of the state assumes control over movement of a person by demand or
        direction that may have significant legal consequence and prevents or impedes access to counsel
     detentions may be of varying length
     issue is whether a person may reasonably regard self as free to refuse compliance
     psychological detention possible, moving from the narrow Bill of Rights position in Chromiak
     But see L‟Heureux-Dubé J.‟s dissent in Elshaw where she strongly criticizes this judgment:
        cannot have counsel available at all times: need for prosecution of justice to advance: advocates
        the American Terry v. Ohio position that permits some police investigation without triggering
        constitutional rights
 Thomsen: Le Dain J.: detention that occurs with a roadside test breaches s. 10(b) but is saved by s. 1
 Moran (Ont. C.A.): Martin J.A.: questioning by police is not detention, not infringement of s. 10(b):
     Factors that are not determinative:
         precise language used by officer in requesting person to station: was given a choice for
            interview at home or police station?
         whether escorted to police station or came in response to a request
         whether accused left at end of interview or was arrested
         whether questioning part of general investigation or was accused under suspicion and
            questioned to get incriminating statements
         whether police had reasonable and probable grounds to believe the accused was guilty
                                                                                       Robert Leckey 1999

          nature of the questions: general questions or confrontation of guilt?
          subjective belief of the accused as to detainment
   Mickey (B.C.C.A.): MacFarlane J.A.: as result of statement by the accused, officer turned him over to
    two expert interrogators: breach of s. 10(b) and exclusion under s. 24(2)
     status of the accused changed when it appeared he had knowledge that only the police and the
         assailant had
   Hawkins (Nfld. C.A.): Marshall J.A.: conviction overturned because of violation of s. 10(b) during
    sexual assault interview at police station
     detention arises when suspicions crystallize and investigator‟s approach changes from
         questioning the individual to examining with intent to charge
     right to be informed of entitlement to counsel arises at moment the individual is subject to “the
         coercive power of the state”
     s. 10(b) is important, even especially designed, even if person interviewed may be unconscious of
         any compulsion
     Fuck you: S.C.C., orally, found no detention on the facts
   Bartle: Lamer C.J.: police failure to give toll-free number of legal aid did not convey the necessary
    sense of immediacy and universal availability of legal assistance: cannot waive a right without “full
     Duties under s. 10(b):
          (1) inform of right to counsel [Informational]
          (2) provide opportunity to exercise that right if detainee so desires [Implementation]
          (3) refrain from eliciting evidence until (2) opportunity given
     (1) breached violates s. 10(b); (2) & (3) require some diligence by the detainee
   Prosper: change in the jeopardy faced may require the police to again comply with the informational
    duties and provide a further reasonable opportunity to consult counsel; also Black, where victim later
     BUT S.C.C. will not require that provinces ensure legal aid is available to all detainees (Prosper)
   Hebert: problematic that right to remain silent only engaged on detention, not moment individual
    encounters the state‟s coercive power (suggestion in Wilson & Sopinka JJ. dissents); no duty to
    inform of the right to silence
   B.C.S.C. v. Branch: Sopinka & Iac JJ. affirm the right against self-incrimination: may be compelled
    to testify, but granted immunity in subsequent criminal proceedings

Informational duties
 Brydges: Lamer C.J.: positive duty to inform of legal aid – refers to Miranda
 Bartle

Implementation duties
 Manninen: Lamer J.: (2) & (3) of the Bartle duties breached
        while a person may waive his rights under s. 10(b), the standard will be very high (Clarkson)
        police must provide reasonable opportunity to consult counsel, including reasonable means
            such as a phone and privacy
        police must cease questioning until that reasonable opportunity has been given
 Baig: S.C.C.: absent proof of circumstances showing that the accused did not understand his right to
   retain counsel when informed of it, onus is on him to prove he asked for the right but it was denied
 Leclair: Lamer J.: youths arrested in middle of night and unable to contact their counsel of choice at
   2:00 a.m.
        refusing another lawyer because wanted his own lawyer is clearly not a waiver of s. 10(b)
                                                                                          Robert Leckey 1999

           no further participation once s. 10(b) right is asserted until a reasonable opportunity to
            exercise it has been given
                 counsel could have supervised the line-up process [where did they get a line-up at
                    that time of night?]
   Burlingham: Iacobucci J.: accused of murder interrogated over three days: offered a deal on the
    fourth day only good while his lawyer unreachable on the weekend
         s. 10(b) prohibits belittling the accused‟s counsel
         opportunity to call a random lawyer is insufficient
         violation in offering a plea bargain only while he couldn‟t reach his lawyer
         from McLachlin J. in Evans: right to counsel when a fundamental and discrete change in
            purpose of an investigation that involves a different or more serious offence than one
            contemplated when initial s. 10(b) warning given
   Clarkson: Wilson J.: accused interrogated without counsel while drunk
         accused must be aware of consequences for waiver to be valid
         s. 10(b) is concerned with fair treatment of the accused, not with probative value of evidence
   Smith: Lamer J.: accused wasn‟t reasonably diligent in exercising his s. 10(b) rights
         Sopinka J.: accused frittered away two hours when counsel more likely to have been available
         La Forest (Dickson & Wilson), dissenting: accused kept asking to speak to his lawyer
   Tremblay: failure to exercise due diligence may constitute waiver of s. 10(b)

Arrest and detention
 494, 495: arrest without warrant
         495(3) deems an officer to be acting lawfully, notwithstanding 495(2)
             Quigley thinks it‟s too broad: should be used only to deny defence for offences involving
                police officers, not to legitimize an arrest that would otherwise contravene s. 9 of the
                Charter because of failure to consider the 495(2) criteria
 529 arrest within dwelling-house
 504ff: information, summons and warrant

S. 8 analysis
 Was it a search or seizure?
 If so, what is the level of expectation of privacy?
 If at least as great as in Hunter v. Southam, was there legal authority for the search or seizure?
 Does that legal authority for the search require prior authorization and was it feasible to obtain pr ior
    authorization in the circumstances?
 Is the required legal authorization constitutional?
 If the warrant provision is constitutional, were the statutory requirements met?
 If the search was warrantless, is it nonetheless justifiable?

Alternative attack:
 attack evidence under s. 9 – arbitrary arrest
 s. 10(a) – reason not given
 s. 10(b) – right to retain and instruct counsel


Use of force to prevent crime
 27
                                                                                            Robert Leckey 1999

Interfering and detaining to prevent a breach of the peace
     30

Powers of any individual - information before a justice: summons or arrest warrant
    795 applies indictable provisions, unless inconsistent, and modified as circumstances require, to
   Part XXVII - Summary Conviction
    504 in what cases justice shall receive information
        common thread here is requirement of reasonable grounds for belief that the person has
           committed (or, in some cases, is about to commit) and offence
        factual basis of informant‟s belief to give rise to reasonable belief in mind of reasonable person
           that the accused person probably committed the offence (Whitmore)
        justice shall receive it if the information is valid on its face: ministerial function (Whitmore)
    506 form of the information
    507 judicial functions: pre-inquiry: summons or arrest; or under 508, when accused is already there,
       confirm or cancel the appearance notice, promise to appear or recognizance (Whitmore)
        507(4) makes clear that the preference is for a summons, not an arrest warrant; warrant is
        where justice, acting judicially, is not satisfied that a case has been made out for compelling the
           attendance of the accused in court, he may refuse to issue process (Whitmore)
        what drives a criminal trial is an information valid on its face, not the subjective reasonable and
           probable grounds of the informant (Whitmore)
            pre-inquiry may look to the evidence of witnesses besides the informant
            proper standard is prima facie
            this is analogous to a Provincial Court judge in a preliminary inquiry
            possible for reviewing court to squash the process but not the information
            No s. 7 right of the accused to be present at the pre-inquiry, as not yet in jeopardy; ex parte in
                camera hearing is appropriate (Whitmore)
    509 content and service of a summons
    511-514 form and execution of an arrest warrant
    528 endorsement of warrant within a different jurisdiction
    Pilcher (Man. Prov. Ct.): information invalid when policeman executed information without
   reasonable and probable grounds for believing that the offences had been committed (504)

Bail: judicial interim release
     Central notion is that accused should be released from custody without conditions unless certain
        criteria are met:
         515(10)(a) That the accused will not appear in court as required if released
         515(10)(b) That detention is necessary for protection or safety of the public
         515(10)(c) any other cause, including confidence in the administration of justice, apparent
             strength of prosecution‟s case, gravity of offence, circumstances etc.
     presumption is for summons not arrest (495(2)) and for release immediately after arrest without
        warrant (497) [but 497(3) deems lawfulness for officer executing that section]
     498 release from warrantless custody by officer in charge: again, 498(3) deems implementation of the
        section legal unless the person proves derogation from the duty
     499 release from arrest with warrant; 499(2) additional conditions
     502 failure to appear; 512 warrant in default of appearance
              145 failure to appear is also an offence per se
     515(1) order of release: justice shall order release unless the prosecutor shows cause
                                                                                           Robert Leckey 1999

               If not 515(1) release, then 515(2) release on undertaking
                     If more than the basic 515(2)(a) release on undertaking, such as requiring
                         recognizances and sureties, prosecutor must show cause
               515(4) conditions imposed upon release
               515(6), (7) & (8) impose reverse onus (upheld as constitutional in Morales; Pearson)
               522 bail hearing for 469 offence to be held in Sup. Ct.

Show cause hearing
    Thompson (B.C.S.C.): Anderson J.: presumption of release: no foundation in law for detaining
       accused as deterrence for others; accused is presumptively innocent: sentencing is the proper method
       of deploying deterrent measures

Grounds for detention
    Powers (Ont. H.C.): “public interest” in detention pending trial can be broad and consider a variety of
   factors: includes plain lesson of human experience if the accused is likely to offend during the interim
    Graham (Ont. Dist. Ct.): refusing release to sexual assault accused: circumstances where detention
   not based on substantial likelihood of commission of another offence: so much violence, the assault so
   serious and circumstances so demeaning to the victim that there is need to protect the public at large from
   exposure to the apparent perpetrator
    Lamothe (Que. C.A.): Baudouin J.: bail granted to accessory after the fact to murder
        the accused had discharged the reverse burden of proof in 522(2), which is not a reversal of the
            presumption of innocence
        presumption of innocence at all stages of the criminal process is not a purely theoretical notion
            but a concrete reality - it‟s the price paid for life in a free and democratic society
        criterion of public perception must not be that of the lowest common denominator
    Morales: Lamer C.J.: “public interest” as basis for pre-trial detention violates s. 11(e) of the Charter
       and should be severed: vague (NS Pharmaceutical Society): “public safety” would be constitutional
             Threat posed to public by the accused must be a “substantial likelihood”
             Fuck you: new 515(10)(c) preserves wide discretion
             Gonthier (L’Heureux-Dubé) dissenting
    Nguyen (B.C.C.A.): McEachern B.C.C.J.: bail allowed for convicted of second degree murder
       pending appeal
             denial is not a means of punishment
             violence isn‟t determinative of the outcome: rather, factual analysis

The Justice must decide
    Major (Ont. C.A.): Charron D.C.J.: error for the accused to consent to own detention order: justice of
        the peace has a judicial function to perform in determination of appropriate conditions, and cannot
        delegate that function to the prosecutor

Reasonable conditions on release
    Keenan: justice ought not to impose such stringent conditions on release that it is tantamount to

Legislative changes
    reverse onus: offence allegedly committed while on bail for another offence (515(6)); murder
                                                                                              Robert Leckey 1999

Charter standards
    Pearson: Lamer C.J.: reverse onus for bail in respect of drug offences (515(6)(d)) is constitutional:
         (1) bail is denied only in narrow set of circumstances; (2) denial of bail is necessary to promote
            the proper functioning of the bail system and not done for any purpose extraneous to that
         McLachlin J. dissenting: unjustifiable because no distinction between major and minor
            trafficking: includes person passing a joint at a party

Review of bail decision
    521 review of justice‟s decision by a judge
    522 bail hearing in Sup. Ct. for 469 offences; review of denial in C.A.

       Stinchcombe: Sopinka J.: full disclosure by the Crown
         fruits of investigation in possession of counsel for the Crown are not the property of the Crown
            for use in securing a conviction but public property to be used to ensure that justice is done
         obligation to disclose remains subject to discretion of counsel for the Crown: both to withholding
            of information and timing of disclosure (e.g. privilege)
         Crown must err on the side of inclusion, but need not produce what is clearly irrelevant
         discretion of Crown counsel is reviewable by the trial judge on application by the accused
         On review, trial judge guided by general principle that information ought not to be withheld if
            reasonable possibility that will impair the right of accused to make full answer and defence
         trial judge might, in certain circumstances, conclude that recognition of an existing privilege does
            not constitute a reasonable limit on the constitutional right to make full answer and defence, thus
            requiring disclosure in spite of the law of privilege
         defence should make application without delay, to remedy prejudice where possible and avoid a
            new trial; failure to do so will be an important factor in an appeal seeking a new trial
         timing: initial disclosure before accused elects mode of trial and pleads (Law Reform
         subject to discretion, all statements should be produced, even if the persons are not proposed as
            Crown witnesses
         Crown usually expected to produce only evidence in its possession or under its control
       O’Connor: Lamer & Sopinka: when defence seeks information in the hands of a third party, onus on
        the accused to satisfy judge that the information is likely to be relevant
             anxious to avoid the Catch-22 for the accused, who has not seen the documents; but no
       Fuck you: Parliament passes Bill C-46, upheld as constitutional in Mills (1999)
             s. 15 equality right asserted, from L‟Heureux-Dubé in O’Connor, and society‟s interest in
                 fostering the reporting of sex crimes
             ten assertions that are insufficient on their own to establish relevance
             production may be ordered only on consideration of all seven factors listed by Claire in
             Balancing process also applies to records in possession of the Crown, not merely third parties

                              ELECTION AND PRELIMINARY INQUIRY
       Judge presiding has no s. 24 Charter jurisdiction: preliminary inquiry is strictly statutory jurisdiction
        under the Code (Doyle) (Mills (1986))
       555 Prov. Ct. J. may continue a hearing as a preliminary inquiry if it appears that the charge should be
        prosecuted by indictment
       536 election of the accused
                                                                                           Robert Leckey 1999

       537 powers of the preliminary inquiry justice
       539 publication ban possible
       561 re-election
       Chabot: Dickson J.: justice conducting preliminary inquiry may inquire into, and commit only on, the
        charge specified in the information(s); includes any “included offences” since they are necessarily
        part of the original charge
             Fuck you: reversed in 1985 with 535 “any other indictable offence” amendment
       Part XVIII, 535ff. strictly limits judge‟s powers: inquire into that charge and any other indictable
        offence in respect of the same transaction
       539 order restricting publication of evidence taken at preliminary inquiry
       540 taking evidence
       548 order to stand trial or discharge
       Function of the preliminary inquiry: show adequate case for the Crown (Patterson); discovery
        mechanism for the defence (Skogman)

Preferring an indictment
     566 & 574
     577 permits Crown to prefer an indictment on discretion of A.G. without preliminary inquiry

Sufficiency of the evidence
     Charemski: Bastarache J.: Trial Judge wrong to have weighed the evidence at the preliminary inquiry
        and discharged the accused
         Judge should apply the “no evidence standard”
         McLachlin & Major JJ., dissenting: preliminary inquiry cannot but assess the weight of the
            evidence in determining whether evidence present for all parts of the case such that a reasonable
            jury might convict, even though judge not required to say whether she would commit (U.S. v.
            Shephard requires possibility that a jury would convict if they believed the evidence)
             there were two other equally plausible explanations for the death, so jury couldn‟t possibly
     Monteleone: McIntyre J.: trial judge wrong to weigh evidence of fire: test is some admissible
        evidence on all the elements
     Nelles: discharge

                                            PLEA BARGAINING
       Alternative measures authorized at 717 if program approved by A.G.
       Adgey: Laskin J., dissenting, outlines concerns with guilty pleas:
             assure that duty counsel has consulted with the accused
             ensure that the guilty plea is fully understood
       E.D. (Ont. C.A.): Arbour J.A.: appeal allowed against a stay of proceedings when illicit sex charges
        finally pressed despite a bargain with the police: no abuse of process
             burden on accused to show abuse of process
             any agreement here exacted no real concession from the accused at the time
             fact sensitivity: seriousness of charges; prosecutor had no role in deal; absence of prejudice

                                  INDICTMENTS AND INFORMATION
       577 direct indictment at discretion of A.G.
       581 general provisions respecting charges: “Each count in an indictment shall in general apply to a
        single transaction and shall contain in substance a statement that the accused or defendant committed
        an indictable offence therein specified”
                                                                                             Robert Leckey 1999

       587 particulars
         everything in the particulars must be proved
       589 joinder or severance
       592 joinder of accused
       601 amendment: challenges to the indictment must be advanced prior to plea or later only with leave
        of the court
       606 pleas

Formal attacks on the indictment or information - insufficiency
    McKenzie: Ritchie J.: taxi driver: imprecise charge nevertheless specified the transaction referred to;
       sufficient to say “theft”
        distinguishes Brodie because it didn‟t even specify the transaction: must “lift from the general to
            the particular‟
    Côté: De Grandpré J.: rejects extreme technicality of old procedure; specific reference to Code
       section doesn‟t require the actual words as well
        Central requirement is that the accused be given adequate notice of the allegations facing him to
            properly defend the charge
    Wis Dev. Corp.: Lamer J.: information using the Aeronautics Act statutory language “commercial air
       service” in unlawful manner not precise enough
        not correctable by particulars, but void ab initio
        regulatory matter: multiple counts of a similar nature: must distinguish from each other by more
            than date
    G.B.: Wilson J.: permit amendment of information re sexual assault of a child to reflect the correct
        nature and legal character affect assessment of reasonableness of the information: don‟t make it
            difficult to treat serious social problem of child abuse
    Warren (Ont. H.C.): s. 11(a) requires that accused be informed of the substantive offence and the acts
       or conduct allegedly forming the basis of the charge: does not include right to be informed of how the
       Crown will exercise its discretion with the manner of prosecution
    Moore: preference for voidable, not null; permit to amend, rather than quash
        Look to prejudice suffered by the accused in decisions here

    Common law rule prohibits alternative charges in a single count (Kipp): but 590
    Sault Ste. Marie: Dickson J.: primary test is a practical one: does the accused know the case he has to
        meet, or is he prejudiced in preparation of his defence by ambiguity in the charge?
    Hulan (Ont. C.A.): Kelly J.A.: indictment not invalid for relating to sex on several occasions: all one
        transaction: “transaction” in 581 is not synonymous with “incident” or “occurrence”, notwithstanding
        fact that each of the incidents might, if Crown chose, have been subject of a separate count
    Rafael (Ont. C.A.): Arnup J.A.: indictment quashed because single count related to 24 persons, the
        fraudulent transactions to which varied considerably so not all the same
         appeal for duplicity may be made at appeal, since not a defect apparent on the face in 601 sense
            (Dickson had not needed to answer this issue in Sault Ste. Marie as he found no duplicity)

Improper joinder of counts
    Creighton: S.C.C. reiterates preference for joint trials unless injustice in doing so
    Racco (Ont. Co. Ct.): order severing counts is purely discretionary
                                                                                              Robert Leckey 1999

         “ends of justice” means both the interests of the accused and general interests of the
        administration of justice: look for irremediable prejudice to the accused: weight against the efficienc y
        and conflicting verdict concerns
       Agawa (Ont. C.A.): Martin J.A.: gruesome prison stabbing: trial judge correct not to sever:
         prima facie, accused who are jointly indicted should be jointly tried where it is alleged that they
            acted in concert
       But Vaas (Alta. Q.B.): danger of accused is enough to order a separate trial: how can you ensure that
        jury would ignore evidence inadmissible in respect of one of the accused?

     Thatcher (Sask. Q.B.): refused application for particulars re murder: Martin J.A. had earlier said in
        Govedarov that in a charge of murder, Crown is entitled to rely on any part of the definition

   Tremblay: Cory J.: refused 601 amendment from “indecency” to “prostitution” late in the trial, as
     would could irreparable prejudice to the defence

On appeal
    Motions to quash indictments or informations for defects apparent on their face must be brought
       before an accused has pleaded and later only by leave of court: Côté: amend the information at trial,
       not on appeal

Trial within reasonable time (s. 11(b))
     Askov: Cory J.: but in Bennett Arbour J.A. says 6-8 months not a mechanical statutory guideline
     Morin: Sopinka J.: while one cannot use institutional resources to nullify the right to trial within a
         reasonable time, one also cannot use rapidly changing local conditions to compel a general amnesty
          the more serious the charge, the less likely to be stayed
          Crown no longer has burden of proving that delay was caused by the accused, that institutional
              delay was justified, no prejudice, or that accused waived s. 11(b) right
          comparative jurisdiction test is much less important
          whether the accused was actually prejudiced is crucial
     Kalanj: McIntyre J.: s. 11 protection begins after an accused is charged with an offence; length of
         pre-information or investigatory period is wholly unpredictable
     Potvin: Sopinka J.: s. 11(b) doesn‟t apply to appellate delay
          affirms importance of prejudice to the accused as a factor in Morin
     Whitmore: Ewaschuk J.: an accused has a constitutional right to a speedy trial but no right whatsoever
         to a delayed trial (refusing exercise of discretion when trial already delayed two years)

Judicial stay for abuse of process
     Rourke: Pigeon J.: no inherent power to allow stay for abuse of process
          Laskin C.J. (Spence, Dickson & Judson JJ.) dissenting
     Jewitt: Dickson C.J.: artful reworking of Rourke: trial judge has discretion to enter a stay for abuse of
         process in the clearest of cases where compelling trial would violate fundamental principles of justice
         underlying the community‟s sense of fair play and decency (Dubin J.A. in Young)
          Two parts: (1) sufficiently oppressive circumstances to offend society‟s sense of justice; (2)
             circumstances serious enough that judiciary will intervene to prevent the court system from being
             tainted by the oppression
                                                                                           Robert Leckey 1999

         stay is accordingly appealable by the Crown
       Power: S.C.C. sticks to “clearest of cases” restriction
       Keyowski: Wilson J.: two or three trials not enough to make “clearest of cases” warranting a stay
         Bertha leaves for another day the question of relationship between s. 7 and common law abuse of
       O’Connor: L’Heureux-Dubé J.: abuse of process now subsumed in s. 7
         Crown‟s shoddy behaviour didn‟t affect accused‟s right to full answer, so no stay
         stay only when no other remedy possible, such as adjournment
         Major, Lamer & Sopinka dissenting
       W.K.L.: Stevenson J.: no automatic stay because charges pressed 30 years after alleged sexual assault
       Mack: stay in case of entrapment: not exoneration but rather disapproval of palpably unfair state

       606 (indictable); 801 (summary)
       607 special pleas: (a) autrefois acquit; (b) autrefois convict; (c) pardon
         defence bears burden of showing special plea applies (Sanver)
         Test: could the accused have been convicted at the first trial for the offence with which he is now
            charged? (Van Rassel)
       not guilty: forces the Crown to prove the allegations
       Gardiner: guilty plea doesn‟t go to full extent of the victim‟s damage as may influence sentencing:
        defence may contest those allegations
       Hansen (5-judge Man. C.A.): withdrawal of guilty plea: accused believed he faced possible first
        degree murder charge; possible defence re mental difficulty: disputed area of law, as JJ.A. split 3-2
       Rubenstein (Ont. C.A.): Zuber J.A.: no withdrawal of plea once judge rejects sentencing submission
         court will not be put in “unseemly position of bargaining with the accused”
       Lessard (Ont. C.A.): Martin J.A.: trial judge‟s jurisdiction is not fully spent until sentencing: may
        vacate adjudication of guilt anytime before sentencing (appeal from acquittal for indecent assault of

Double jeopardy
    Wigglesworth: Wilson J.: can be charged with same assault under RCMP Act and Code
        s. 11 applies only to public offences involving punitive sanction
        Test: (1) „by nature‟ test and (2) „true penal consequence‟ test
        Estey J., dissenting: gravity of one-year sentence possible indicates that the Act is indeed
           addressing the larger community interest

Multiple punishment
    Kienapple: Laskin J.: same delict cannot yield two convictions
         Ritchie J. dissenting: no double punishment for the same offence, though possible punishment for
            same act
    Prince: Dickson C.J.: no Kienapple defence when stabbing pregnant mother and child:
         factual nexus between the charges: does same act of the accused ground each of the charges?
         legal nexus: is there an additional distinguishing element in the offence sought to be covered by
            the rule?
         when is an element not additional or distinct?
             element may be particularization of another element
             more than one method of proving a single delict
             one element satisfied by proof of a different nature
                                                                                             Robert Leckey 1999

          may bar an offence of lesser gravity which is otherwise the same
          Parliament may, through clear language, intend to increase punishment where two offences
         Laskin clearly meant the same delict against the same person
       Andrew (B.C.C.A.): Lambert J.A.: double test, not two consecutive tests:
         In factual context, is there only one wrongful act, physically and mentally?
         Do the offences have an additional or distinguishing element? If so, no Kienapple unless one of
           Dickson‟s four situations
       D.W.P.: Wilson J.: Kienapple is applied using conditional stays until final disposition of the charge on
        which the trial proceeds

Issue estoppel
     Gushue: Laskin C.J.: issue estoppel is part of criminal law of Canada
         Doctrine does not apply where founded on false evidence that was discovered to be false after the
            first trial
         exclude issue estoppel from perjury unless the Crown is really trying to retry the same offence
     Difficult in jury trials to prove that a particular fact was really determined by the previous acquittal:
        Carlson is exceptional (Crown‟s theory that same person committed two murders; successful plea of
        issue estoppel once acquitted of the first)

Included offences
     662: trial judge has duty to charge jury with respect to included offences that can be supported by the
        evidence (Smith)
         but need not put included offence of manslaughter where no air of reality for it in a murder trial
            (Wade, Lamer C.J. & Sopinka J. dissenting)
     Walton (N.B.C.A.): Ryan J.A.: included offence must clearly be so: if the whole offence can be
        committed without committing another offence, that other offence is not included
     McDowell (Alta. C.A.): Moir J.A.: 3 ways an offence may be included:
         wording of the offence provision
         wording of the charge, to alert accused to prepare full defence
         statutorily
         (but also attempts 660; 661, where charged for attempt but committed full offence: convict of
            attempt, or discharge and indict for full offence: if convicted of attempt, autrefois convict would
            save from subsequent trial for full offence)
     Luckett: Chouinard J.: no need to amend the count to include the lesser, included offence
         A charge for robbery puts the accused on notice for both assault and theft

                                            GENERAL COMMENTS
      Cory J. in Stillman: interference with person‟s bodily integrity may constitute the ultimate affront to
      human dignity
     Charter is a purposive document: it is intended to constrain governmental action inconsistent with
       those rights and freedoms; it is not in itself authorization for governmental action: Dickson J. in
       Hunter v. Southam
     Sopinka J. in Feeney: “in the Charter era ... the emphasis on privacy in Canada has gained
       considerable importance”
     Le Dain J. in Therens: per Hunter, purposive approach that makes the Charter rights real to people
                                                                                          Robert Leckey 1999

   Baudouin J.A. in Lamothe: presumption of innocence at all stages of the criminal process is not a
    purely theoretical notion but a concrete reality - it‟s the price paid for life in a free and democratic
   Baudouin J.A. in Lamothe: criterion of public perception must not be that of the lowest common
    denominator; but rather that of the informed public that understand Charter rights
   Sopinka J. in Stinchcombe: the right to make full answer and defence is one of the pillars of criminal
    justice on which we heavily depend to ensure that the innocent are not convicted
   Dickson J. in Sault Ste. Marie: the age has passed in which we needed extreme formality and
    technicality to save people from the gallows

To top