CRIMINAL PROCEDURE - DOC by zhangyun

VIEWS: 10 PAGES: 8

									                              CRIMINAL PROCEDURE
                                                Contents

          INTRODUCTION

[§1.01]   Introduction                                          1
[§1.02]   Bibliography                                          1
          1. Annotated Codes, Digests and Reports               1
          2. Criminal Procedure                                 1
          3. Evidence                                           2
          4. Substantive Law                                    2
          5. Canadian Charter of Rights and Freedoms            2
          6. Advocacy                                           3
          7. Sentencing                                         3
          8. Young Offenders                                    3
          9. Prisons                                            3

          PRELIMINARY MATTERS

[§2.01]   Taking the Case                                       4
[§2.02]   Compelling Appearance and Judicial Interim Release    6
[§2.03]   Release by Police                                     7
[§2.04]   Bail Chart                                            8
[§2.05]   Release by the Court                                  9
          1. Objectives                                         9
          2. Procedure at the Bail Hearing                      9
          3. Evidence                                          11
[§2.06]   Bench Warrants and Section 524 warrants              11
[§2.07]   Charges in Other Jurisdictions                       11
[§2.08]   Sureties                                             11
[§2.09]   Bail Variations in Provincial Court                  12
[§2.10]   Bail Reviews in Supreme Court                        13
[§2.11]   90-Day Bail Reviews                                  13
[§2.12]   Bail Review Documents                                13
          1. Notice of Application                             13
          2. Notice to Person(s) Served                        13
          3. Affidavit in Support                              13
          4. Transcript of Provincial Court Hearing            14
          5. Order After Bail Review                           14
[§2.13]   Information for Bail Hearings                        14
          1. Attendance                                        14
          2. Protection of the Public                          15
          3. Confidence in the Administration of Justice       15
                                                 (ii)


[§2.14]   Estreatment Procedures                                                        15
[§2.15]   Mental Disorder                                                               16
          1. Introduction                                                               16
          2. Fitness to Stand Trial                                                     16
          3. The Defence of Mental Disorder                                             17
          4. Disposition – The Accused Who is NCRMD                                     18
          5. Sentencing – The Accused Who has a Mental Illness (but who is not NCRMD)   18
          6. The Review Board                                                           18

          PREPARATION FOR TRIAL

[§3.01]   Introduction                                                                  20
[§3.02]   Early Disposition                                                             20
[§3.03]   Plea Bargaining                                                               21
[§3.04]   Alternatives to Prosecution                                                   22
[§3.05]   Criminal Caseflow Management Rules                                            23
[§3.06]   Initial Appearance Court                                                      23
[§3.07]   Disclosure of Particulars                                                     24
[§3.08]   Court Records, Informations, Transcripts                                      25
[§3.09]   Arraignment Hearing                                                           26
[§3.10]   Witness and Client Statements                                                 26
[§3.11]   Interviewing Clients                                                          27
          1. Client                                                                     27
          2. Offence                                                                    27
          3. Arrest, Detention and Searches                                             27
          4. Statements and Confessions                                                 27
          5. Evidence                                                                   27
          6. Real Evidence                                                              27
          7. Physical Injuries or Complaints                                            28
          8. Witnesses and Defence Evidence                                             28
          9. Advice for Client                                                          28
[§3.12]   Witnesses                                                                     29
[§3.13]   Expert Witnesses                                                              30
[§3.14]   Character Witnesses                                                           30
[§3.15]   Trial Confirmation Hearing                                                    30
[§3.16]   Adjournment                                                                   30
[§3.17]   Withdrawal as Counsel                                                         31
[§3.18]   Stays of Proceedings, Withdrawals and Dismissals for Want of Prosecution      31
[§3.19]   Informations and Indictments                                                  32
[§3.20]   Motion for Particulars                                                        33
[§3.21]   Joinder and Severance                                                         33
[§3.22]   Limitation Periods                                                            34
                                               (iii)


[§3.23]   Elections                                       34
[§3.24]   Re-Election                                     35
[§3.25]   Pleas                                           36
[§3.26]   Jurisdiction Chart                              37
[§3.27]   Re-Election Chart                               38

          THE TRIAL

[§4.01]   The Preliminary Inquiry                         39
          1. Election Procedure                           39
          2. Evidence on the Preliminary Inquiry          39
          3. Order Following Preliminary Inquiry          41
          4. Special Case                                 42
          5. Re-election                                  42
          6. Review by Certiorari                         42
          7. Amendments to the Criminal Code              43
[§4.02]   Disclosure Applications                         43
          1. General                                      43
          2. Medical Records                              43
          3. Defence Disclosure                           44
[§4.03]   Pre-trial Conferences                           44
[§4.04]   Jury Selection                                  45
[§4.05]   The Crown's Case                                46
[§4.06]   Opening in Non-Jury Trials                      46
[§4.07]   Opening Addresses by the Crown in Jury Trials   46
[§4.08]   Direct Examination                              47
[§4.09]   Leading Questions                               47
          1. When Permitted                               47
          2. Exceptions                                   47
[§4.10]   Use of Notebooks to Refresh a Witness' Memory   48
[§4.11]   Admissions of Fact                              48
[§4.12]   Witnesses and Exhibits                          49
[§4.13]   Cross-Examination                               49
[§4.14]   Limits of Cross-Examination                     51
[§4.15]   Re-Examination                                  51
[§4.16]   No Evidence Motion                              52
          1. The Rule                                     52
          2. Hodge's Case                                 52
[§4.17]   Insufficient Evidence Motion                    52
[§4.18]   Defence Case                                    52
          1. Calling Evidence                             52
          2. Presenting the Evidence                      53
                                                 (iv)


[§4.19]   Cross-Examination of the Accused                   53
          1. Scope of Cross-Examination                      53
          2. Previous Convictions                            54
[§4.20]   Defence Re-Examination                             54
[§4.21]   Rebuttal or Evidence in Reply                      55
          1. When Rebuttal is Proper                         55
          2. Examples of Rebuttal                            56
[§4.22]   Surrebuttal                                        56
[§4.23]   Addresses of Counsel                               56
          1. Order                                           56
          2. Content                                         56
          3. Crown                                           57
          4. Defence                                         57
[§4.24]   Opening & Closing Addresses of Counsel             57
          1. Opening Address by Counsel for the Crown        57
          2. Opening Addresses by Counsel for the Defence    58
          3. Closing Arguments for the Crown                 59
          4. Closing Arguments by Defence Counsel            60
[§4.25]   Judge's Charge on a Jury Trial                     61

          EVIDENCE

[§5.01]   Burden of Proof at Trial                           63
          1. General Rule                                    63
          2. Shifting of Burden                              63
          3. Presumptions                                    63
[§5.02]   Provincial Rules of Evidence                       64
[§5.03]   Identification Evidence                            64
          1. Police Lineups                                  64
          2. In-Court Identification                         64
          3. Eyewitness Identification                       65
[§5.04]   Real Evidence – Photographs & Videos               65
[§5.05]   Res Gestae                                         65
          1. Accused Found in Possession                     66
          2. Victims of Sexual Assault                       66
          3. Utterances Forming a Part of the Issue          66
[§5.06]   Hearsay                                            66
[§5.07]   Statutory Exceptions to the Rule against Hearsay   68
[§5.08]   Expert Evidence                                    69
[§5.09]   Character Evidence                                 70
[§5.10]   Voir Dire                                          70
[§5.11]   Statements by the Accused                          71
          1. Principles                                      71
          2. Persons in Authority                            71
          3. Procedure                                       73
                                                    (v)


          4.   Witnesses                                  73
          5.   Defence                                    73
          6.   Closing                                    73
          7.   Waiver                                     73
          8.   Mental Capacity of the Accused             73
          9.   The Charter of Rights and Freedoms         74
[§5.12]   Wiretap Evidence                                74
[§5.13]   Doctrine of Recent Possession                   75

          CHARTER REMEDIES

[§6.01]   Introduction                                    77
[§6.02]   Challenging the Validity of Legislation         77
[§6.03]   Judicial Stays of Proceedings                   78
[§6.04]   Judicial Stays for Delay                        78
[§6.05]   Exclusion of Evidence                           80
          1. Timing of Section 24(2) Applications         80
          2. Notice of Application                        81
          3. Entitlement to a Hearing                     81
[§6.06]   Unreasonable Searches                           81
[§6.07]   Right to Counsel                                83
[§6.08]   Disclosure                                      83

          YOUNG OFFENDERS

[§7.01]   Pre-Trial Matters                               85
[§7.02]   Transfers to Adult Court                        86
[§7.03]   Trial                                           87
[§7.04]   Disposition                                     87
[§7.05]   Appeal and Review Procedures                    88
[§7.06]   Alternative Measures                            88
[§7.07]   Provincial Statutory Offences                   88
[§7.08]   Pending Changes to the Legislation              89
                                                (vi)


          SENTENCING

[§8.01]   Introduction                                                    90
[§8.02]   Preparation                                                     90
          1. “Guilty” or “Not Guilty”: that is the first question         90
          2. Client’s Background                                          91
          3. Criminal Record                                              91
          4. Character Evidence                                           92
          5. Circumstances of the Offence                                 92
          6. Formulating Your Position and Speaking to Sentence           92
          7. Procedure                                                    93
          8. Other Considerations                                         94
          9. Summary                                                      94
[§8.03]   Part XXII of the Criminal Code – Sentencing                     95
          1. Alternative Measures                                         95
          2. The Purposes and Principles of Sentencing                    95
          3. The Sentencing Hearing: Procedure and Evidence               96
[§8.04]    Sentences Available                                            98
           1. Absolute Discharge                                          98
           2. Conditional Discharge                                       99
           3. Suspended Sentence and Probation Order                      99
           4. Suspended Sentence Plus Fine Plus Probation                101
           5. Fine Plus Probation Order                                  101
           6. Fines                                                      101
           7. Restitution                                                102
           8. Intermittent Sentence of Imprisonment                      103
           9. Electronic Monitoring Program: Technological Supervision   103
          10. Conditional Sentence of Imprisonment                       104
          11. Imprisonment in a Provincial Prison – "Provincial Time"    106
          12. Imprisonment Plus Probation Order                          107
          13. Imprisonment Plus Fine                                     107
          14. Imprisonment and Fine and Probation Order                  107
          15. Imprisonment in a Federal Penitentiary – "Federal Time"    107
          16. Consecutive Term of Imprisonment                           108
          17. Sentences of Life Imprisonment                             108
          18. Indeterminate Periods of Imprisonment                      110
[§8.05]   Firearms Prohibition Orders                                    110
          1. Mandatory and Discretionary Firearms Prohibition Orders     110
          2. Preventative Prohibition Orders                             111
          3. Limitation on Access Orders                                 112
[§8.06]   DNA Data Bank                                                  112
[§8.07]   The Charter of Rights and Freedoms                             112
[§8.08]   Pardons                                                        113
[§8.09]   Checklist for Preparation of Submissions to Sentence           113
          1. The Offence and the Offender                                113
          2. The Protection of the Public                                114
          3. The Rehabilitation of Offenders                             115
                                                 (vii)


          APPEALS
          SUMMARY CONVICTION OFFENCES
[§9.01]   Introduction                                                              116
[§9.02]   Procedure                                                                 116
          1. Jurisdiction                                                           116
          2. Documents                                                              116
[§9.03]   Other Forms of Appeal                                                     117
          1. Trial de Novo                                                          117
          2. Summary Appeals on the Transcript or on an Agreed Statement of Facts   117
          3. Section 830 Appeals                                                    117
[§9.04]   Release and Other Orders Pending Appeal                                   117
          1. Stay of Driving Prohibitions                                           117
          2. Bail                                                                   118
          3. Fines and Probation Orders                                             118
          4. Extension of Time of Appeal                                            118
[§9.05]   Grounds of Appeal                                                         118
          1. Reasonableness of the Trial Judge's Decision                           118
          2. Failure of the Trial Judge to Give Reasons                             118
          3. Error in Law                                                           119
          4. Charter Issues                                                         119
          5. Credibility                                                            119
          6. New Issues on Appeal                                                   119
          7. Appeals from Sentence                                                  119
[§9.06]   Orders                                                                    119

          APPEALS – INDICTABLE OFFENCES

[§9.07]   Governing Provisions                                                      120
[§9.08]   Notice of Appeal                                                          120
[§9.09]   Grounds of Appeal                                                         121
          1. From Conviction                                                        121
          2. From Acquittal                                                         121
          3. From Sentence                                                          121
[§9.10]   Bail Pending Appeal                                                       121
          1. Bail Pending Appeal from Conviction                                    122
          2. Bail Pending Appeal from Sentence                                      122
          3. Review of Initial Decision                                             122
          4. Bail Pending New Trial                                                 122
[§9.11]   Extension of Time to File                                                 123
[§9.12]   Transcripts and Appeal Books                                              123
[§9.13]   Factums                                                                   123
[§9.14]   Abandonment                                                               123
[§9.15]   Setting Down the Hearing                                                  123
[§9.16]   Raising an Issue for the First Time on Appeal                             123
[§9.17]   The Hearing of the Appeal                                                 124
                                                 (viii)


           1.   Appeals from Conviction                                                124
           2.   Appeals from Acquittal                                                 124
           3.   Appeals from Sentence                                                  124
[§9.18]   Miscellaneous Appeal Provisions                                              125
[§9.19]   Appeals to the Supreme Court of Canada                                       125
[§9.20]   Prerogative Writs                                                            126

          PRECEDENTS
           1.   Retainer Agreement                                                     127
           2.   Client Information Form                                                132
           3.   Client Information Form                                                133
           4.   Re-Election Notice                                                     134
           5.   Bail Review – Application                                              135
           6.   Bail Review – Affidavit in Support of Application                      136
           7.   Bail Review – Order                                                    137
           8.   Indictable Appeal – Notice of Appeal                                   138
           9.   Indictable Appeal – Notice of Application for Release Pending Appeal   140
          10.   Indictable Appeal – Affidavit in Support of Release Pending Appeal     141

								
To top