Criminal Law Review Chapter #17-21

When a person who is charged with an offence is provided with complete disclosure of the case against him, he can make informed decisions on how to best respond to the allegations. If it is disclosed that the prosecution has a very strong case, the accused may very well decide to plead guilty to the offence with which he is charged or try to plea bargain for a lesser offence.

The procedure for obtaining disclosure varies depending upon the offence with which the accused is charged and the practice followed in the particular Crown’s office. In many cases, some form of disclosure is provided to the accused when she first appears in court.

In general, the Crown must disclose all relevant information to the accused. It does not matter whether the Crown intends to rely on the information at trial, or whether the information is inculpatory or exculpatory.

T he function of the preliminary inquiry is to determine whether there is sufficient evidence to commit or send the accused to trial. An accused is entitled to a preliminary inquiry in the following situations: 1. The accused has been charged with an offence listed in s. 469 of the Criminal Code. These are the most serious offences in the Code—for example, murder and treason. 2. The accused has been charged with an offence that permits him to elect the mode of trial and he has elected to be tried by a judge of the Superior Court of Justice sitting alone or with a jury. 3. A provincial court judge has converted the trial of an indictable offence into a preliminary inquiry under s. 555 of the Criminal Code.

Pretrial conferences are informal meetings involving the Crown, the accused’s representative, and a pretrial conference judge where various procedural and substantive issues relating to the case are discussed; this process leads to a more efficient use of court time.

The only pleas that are permitted by the Criminal Code are guilty, not guilty, or one of the special pleas of autrefois acquit, autrefois convict, or pardon. There is no special requirement to plead not guilty by reason of mental disorder.6 The trial itself will begin after the accused has entered a plea.

Compared to the former rules, which set out the procedure for pre-hearing conferences, the current rule on case management is broader in scope and deals with several other matters. From a reading of it, it is clear that Rule 4 has been designed to facilitate a just, efficient, and fair determination of criminal proceedings. The guiding principle is set out in Rule 4.1: 4.1 When conducting a hearing or trial, the Court has the power to make any order or direction in relation to the conduct of the proceeding that would assist in ensuring that it is conducted in accordance with the fundamental objective set out in rule 1.1.

T he Criminal Code expressly provides rule-making authority to the various levels of courts in Canada. Section 482(1) confers power on every superior court of criminal jurisdiction and every court of appeal to “make rules of court not inconsistent with this or any other Act of Parliament.” Section 482(2) extends the same rule-making power to every provincial and territorial court.

It may be necessary to make an application for matters that must be determined before proceeding to trial. Such applications might include those relating to disclosure, the release of exhibits for testing, or for commission evidence that is intended for use at trial. A preparatory application is a pretrial application that is to be heard at least 60 days before trial.

An application can be made for complex evidentiary issues, such as applications for the admissibility of similar fact evidence, evidence of a complainant’s prior sexual activity, and hearsay evidence. Further, an evidentiary application can also be made for access to records in the possession and control of non-parties—for example, doctors’ notes. An evidentiary application will usually be heard at the start of or during a trial.

An application for particulars is made under the provisions of s. 587(1) of the Criminal Code, which permits the court to make an order that the prosecutor furnish particulars2 in respect of an Information or a count where it is necessary in order for the accused to have a fair trial. An application for particulars is a pretrial application that is to be made at least 60 days before trial.

A party who wishes to respond to an application is required by Rule 2.2 to serve a response in Form 2 on the applicant and any other affected party and file it with the court together with proof of service. A Form 2 response is similar to a Form 1 application and is to include a concise statement of the party’s reasons for responding to the application, a response to the applicant’s grounds, and a detailed statement of the factual basis for the party’s position in the proceeding.

While Rule 3.3 requires the filing of hard copies of documents with the court, Rule 3.3(2) permits the filing of documents electronically where the technology is available and the court has authorized electronic filing by a practice direction.

Juries are composed of 12 people who have been selected by the Crown and accused from a much larger pool called a jury panel or jury array. Summoning prospective jurors is a provincial matter and each province has a jury act that sets out the procedure for selecting people for jury duty. While the rules of selecting a jury panel vary, the end objective is the same: to establish a body of jurors that will be large enough to meet the needs of justice in the province.

T he process of examining witnesses is the same for all witnesses. First, the Crown will conduct a direct examination, also called an examination-in-chief, by asking the witness non-leading questions. A non-leading question is a question that does not suggest an answer.During cross-examination a witness may be asked leading questions. T his is a powerful tool that is used to test and probe the evidence of the witness or to attempt to demonstrate that the witness is not credible. A skillful advocate may be able to elicit concessions from the witness, point out weaknesses in the witness’s evidence, and highlight the parts of the evidence that are consistent with or support the position of the defence

T he trial book should contain in separate sections the opening statements and closing arguments, the questions that will be asked of the party’s own witnesses, questions and areas for cross-examination, and copies of any exhibits and reports that will be used at trial

competent witness a witness who is lawfully capable of giving evidence; a competent witness may give evidence and a compellable witness a witness who can be lawfully required to give evidence; a compellable witness can be forced to give evidence

The only options available were to permit the verdict to stand or to declare a mistrial. The Supreme Court of Canada did not permit the not guilty verdict to stand because it would have resulted in a miscarriage of justice, and so a mistrial was declared.

Specific deterrence focuses on the offender, and its object is to impose a sentence that is sufficient to discourage the offender from reoffending and General deterrence is about the message the sentence sends out to other members of society. The focus here is on preventing others from engaging in wrongful conduct by demonstrating that such behaviour will be punished.

What this means is that a sentence must reflect the seriousness of the offence and the moral blameworthiness of the offender. It has been often said that the most severe sentences are reserved for the worst offence and worst offender. The focus should be on the behaviour of the accused rather than the consequences of his or her actions

The offender may be sentenced immediately by the court or may have sentencing adjourned for a number of reasons. Sentencing is commonly adjourned if the judge requires a pre-sentence report. The power to request a pre-sentence report is found in s. 721 of the Code. A pre-sentence report is prepared by a probation officer and will usually contain information on the offender’s age, maturity, character, behaviour, attitude, willingness to make amends, previous findings of guilt, and previous sentences. Another type of report that may be used at the sentencing hearing is a victim impact statement. The victim of a crime or, if that person is not available to provide a statement, a relative of the victim may provide a written statement that outlines the effect the offence has had on them. Section 722.2 requires the court as soon as practical after a finding of guilt to inquire of the Crown or victim of the offence or their representative as to whether the victim has been advised of the opportunity to provide a victim impact statement.

Record suspension an order granted by the Parole Board of Canada that permits a qualifying offender to have a criminal record separated and kept apart from other criminal records; formerly called a pardon there is a finding of guilt made, but if the offender is granted a discharge when sentenced, they will not have a criminal record. The purpose of this sentencing option is to provide certain offenders with a “second chance” for a single mistake or transgression that would normally result in a criminal record. However, this is not entirely a free pass and the fact that the offender has been granted a discharge will be recorded.

For most offences where the court imposes a sentence of less than two years’ imprisonment, s. 742.1 of the Criminal Code provides that the court may order, subject to certain conditions, that the sentence may be served in the community instead of in jail. Unlike a suspended sentence, where the court suspends the passing of a sentence, a conditional sentence of imprisonment actually imposes a sentence of imprisonment. An offender who is placed on probation with a suspended sentence will remain out of custody but is released under the supervision of a probation officer. The probation order will set out a number of conditions that the offender must follow. These conditions will require the offender to do certain things or to refrain from certain behaviour.

The waiting period for a record suspension starts only after a sentence has been completed. A sentence is completed when: •all fines,surcharges,costs,restitution,and compensation orders have been paid; •a person has served all sentences of imprisonment,including parole and statutory release; and •a person has satisfied all probation orders. T he waiting period depends on the offence for which a record suspension is sought. The waiting period is: •5 years for a summary conviction offence,and •10years for a n indictable offence.

correctness is a standard of review that permits an appellate court to substitute its decision for the decision of a lower court when, in its opinion, the decision of the lower court is incorrect or wrong and reasonableness a standard of review that permits an appellate court to substitute its decision for the decision of a lower court only when the decision of the lower court is unreasonable

These grounds are set out in ss. 691 to 695 of the Code. Basically, appeals are permitted only on a question of law. Further, appeals are generally only allowed when there is a dissenting opinion in the provincial court of appeal on a question of law or when the Court grants leave to appeal on a question of law.

T he other provisions that permit the court of appeal to refuse otherwise meritorious appeals are set out elsewhere in s. 686(1)(b). Section 686(1)(b)(ii) confirms the power of the court to dismiss an appeal where the accused has failed to meet one of the required grounds.

This is a reflection of the fact that s. 822(1) incorporates most of the provisions of ss. 683 to 689, which apply to indictable offence appeals and also to summary offence appeals. As a result, the grounds on which an appeal may be granted and the powers of the appellate court to dismiss otherwise meritorious appeals are the same as they are for indictable offences.

a book that contains all of the documents that are necessary for the hearing of an appeal by an appellate court as set in Rule 14(1) sets out the contents of the appeal book:

14(1) Except in an inmate appeal, the appeal book shall contain, in consecutively numbered pages arranged in the following order, a copy of, (a) a table of contents describing each document, including each exhibit, by its nature and date, and, in the case of an exhibit, identified by exhibit number or letter; (b) the notice of appeal and any supplementary notice of appeal; (c) the order granting the leave to appeal, if any, and any order or direction made with reference to the appeal; (d) the information or indictment, including all endorsements; (e) the formal order or decision appealed from, if any, as signed and entered; (f) the reasons for judgment, if not included in the transcript of the trial or hearing, together with a further typed or printed copy if the reasons are handwritten; (g) any order for release from custody pending appeal and any other order suspending the operation of the sentence; (h) all documentary exhibits filed at the trial arranged in order by date or, where there are documents having common characteristics, arranged in separate groups in order by date; (i) all maps, plans, photographs, drawings and charts that were before the trial judge and are capable of reproduction; (j) the agreed statement of facts, if any; (k) where there is an appeal as to sentence, the pre-sentence report, the criminal record of the convicted person and any exhibits filed on the sentencing proceedings;