Criminal Procedure
Spring 2011 – Professor Colleen Smith
Patricia O’Neil
Roles of Police, Crown & Defence 4
Role of the Police 4
Role of the Crown 5
Role of Defence Counsel 5
Types of Offences 6
How To Determine Type of Offence 6
Summary Offences 6
Hybrid Offences (watch for s. 553 offences!) 7
Indictable Offences (watch for s. 469 and 553 offences!) 7
Crown Elections – Factors to Consider 7
Police Investigatorial Powers 8
Questioning 8
Detention 8
Arrest 8
Interrogation 9
Search & Seizure - Principles 9
Warrants 10
Wiretaps 10
Warrantless Searches 10
Authorized Commission of Offences 11
Sealing Orders 11
Detention & Return of Exhibits 12
Charge Approval 12
Basics & Rationales of Charge Approval Process 12
Test for Assessing & Approving Charges 12
Charge Approval Options 13
Commencing Proceedings – Laying Charges 13
Swearing an Information 13
Contents of an Information 14
Compelling Attendance of Accused at Court 14
If Accused Has Not Been Arrested 14
Arrest Warrants 14
If Accused Has Been Arrested 15
Judicial Interim Release 16
Possible Orders 16
Counsel’s Role in Bail: 16
Possible Conditions 16
Grounds Supporting Detention 17
Reverse Onus Situations 18
S. 469 Offences (Murder Bail) 18
Bail Breaches 18
Bail Review 19
Publication Bans 19
Evidence 19
Arraignment & Case Management Prior to Trial 20
Administrative Issues (Judge Quinn lecture) 20
Criminal Case Flow Management Rules 20
Disclosure 20
Plea Negotiations 21
Withdrawal of Charges & Stay of Proceedings 21
Appearance of Accused 21
Appearance of Crown 21
Adjournments 22
Electing Mode of Trial 22
When Election Available 22
Defence Elections - Considerations 22
Deemed Elections 23
Re-Elections 23
Preliminary Inquiries 23
When Preliminary Inquiry Available 23
When Preliminary Inquiry Will Be Held 23
Why Choose a Preliminary Inquiry? 24
Preliminary Inquiry Process 24
Powers of Preliminary Inquiry Judge 24
Test for Committal to Stand Trial 25
Pre-Trial Applications (General) 25
Preferring the Indictment 25
Pre-Trial Conferences 25
Considering Whether & When To Bring Application 25
Conduct of Counsel on Applications 26
Disclosure Applications 26
First Party / Stinchcombe Application 26
Third Party O’Connor Application 26
Third Party Mills Application 27
Youth Records 27
Unsealing Orders 28
Procedural Applications 28
Joinder 28
Severance 28
Change of Venue 29
Recusal 29
Removal of Counsel 29
Application to Quash Indictment/Information 29
Charter Applications and Remedies 30
Charter Remedies 30
Challenging Constitutionality of Legislation 30
Applications to Exclude Evidence Under S. 24(2) 31
Voir Dires / Evidentiary Applications 31
When Application Is Pre-Condition To Admissibility of Evidence 31
When There is an Objection to Admissibility 31
Constraints on Availability of Voir Dire 31
Procedure 31
Blended Voir Dires 32
Admitting Voir Dire Evidence at Trial 32
Residual Discretion to Exclude 32
The Mega Trial Phenomenon 32
Jury Selection 32
Creating Jury Array 33
Selecting Individual Jurors 33
Challenges for Cause 33
Peremptory Challenges 34
Alternates 34
Running Out of People in Array 34
Mistakes in Process 34
Jury Trial Procedure 34
Arraignment & Re-Arraignment of Accused 35
Sequence of Trial 35
Jury Deliberations 35
Verdict 36
Issues With Jurors During Trial 36
Mistrial Applications 36
Publication Ban During Jury Trial 37
Jury’s Duty of Non-Disclosure 37
Getting Witness Evidence Before the Court 37
Compelling Witness Attendance 37
Evidence by Video or Audio Appearance 37
Witness Accommodations 37
Competence, Capacity & Compellability 38
Refusal to Testify / Contempt Proceeding 38
Using Preliminary Inquiry Evidence 38
Video Statement If Under 18 or Has Disability 38
Sentencing 38
Guilty Plea 39
Maximums, Minimums & Sentencing Ranges 39
Purpose & Principles of Sentencing 39
Aggravating & Mitigating Factors 40
Sentencing Options 41
Sentencing Hearing 43
Specific Issues During Sentencing 44
Ancillary Orders 45
Parole Ineligibility à 743.6 45
Breaching Probation 46
Breach Charge 46
Revoking Suspended Sentence or Conditional Discharge 46
Breaching Conditional Sentence Order 46
Breach Charge 46
Effect of Finding Breach 46
Offence Act 47
Youth Criminal Justice Act 47
Guiding Principles 47
Procedural Differences 47
Sentencing Differences 48
Sentencing principles contained in ss. 3, 38 & 39 48
Practice Differences 48
Mentally Disordered Offenders 48
Purpose 48
Fitness 49
Automatism 49
Mental Disorder Verdict 50
Appeals 51
Review Board Hearing 51
Dangerous & Long-Term Offenders 51
Purpose of Dangerous Offender / Long-Term Offender Designation 51
Effect of Designation 51
Procedure for Dangerous Offender / Long-Term Offender Designation & Sentencing 52
Appeals 54
Review & Amendment of Indeterminate Sentences / Supervision Orders 54
Breaches of Long-Term Supervision Orders 54
Criminal Appeals 54
Appeal Considerations 54
Appeal Regimes 55
Powers of Appeal Court 56
Further Appeals 57
Appointment of Appellate Counsel 57
Roles of Police, Crown & Defence
Role of the Police
· Investigate offences (see section on Police Investigatorial Powers)
o Question, detain, arrest, interrogate, search & seize evidence
· Decide whether to release and/or recommend charges
· Manage witnesses and evidence
Role of the Crown
Crown Counsel Act:
· S. 2 à approve & conduct all prosecutions & appeals of offences, advise gov’t on criminal law, develop policies for administration of criminal justice, liaise with media & public
· Ss. 4, 5, 6, 7 à assessment of merits of prosecution done independently from political and police branches
Regan, Boucher
· Crown has overriding duty of fairness (Crown as “Minister of Justice”)
· Goal is not to obtain conviction; not concerned with winning or losing
· Must lay before a jury credible evidence relevant to what is alleged to be a crime
· Duty to see that all available legal proof of the facts is presented
· Prosecution should be pressed to its legitimate strength but should be done fairly
Miazga v. Kvello Estate
· Prosecutorial discretion includes:
o Whether to prosecute charge laid by police
o Whether to enter stay of proceedings
o Whether to accept guilty plea to lesser crime
o Whether to withdraw criminal proceedings altogether
o Whether to take control of private prosecutions
· Discretionary decisions immune from judicial review unless abuse of process
· Independence of AG is fundamental to integrity of criminal justice system
Professional Conduct Handbook (duty of fairness)
· R 8(18) à prosecutor’s duty is not to seek a conviction but to see that justice is done
o should make timely disclosure to defence of all facts & known witnesses whether tending to show guilt or innocence, or would affect punishment of accused
o should not do anything that might prevent accused from being represented by counsel or from communicating with counsel
Other Roles & Functions (from class notes)
· Advise police on legal issues re: investigation (e.g. wiretaps, search warrants)
· Advise police re: further investigation needed to improve likelihood of conviction
· Approves charges recommended by police (see below)
· May overrule police in public interest on bail issues
· Conduct discussions with defence counsel re: resolution, how to proceed
· Manage witnesses (has duties to victim under Victims of Crime Act, ss. 4-6)
Role of Defence Counsel
Professional Conduct Handbook (officer of court vs. role as advocate)
· R 1(1-6) à lawyer has duties to state (no assisting crime), court (no misleading court), other lawyers (no sharp practice), public
· R 1(3)(5) à lawyer has duty to do everything legitimately and ethically possible to promote client’s interests (“by all fair and honourable means”)
· R 1(3)(6)à lawyer has right to undertake defence of accused person regardless of lawyer’s personal opinion re: guilt; lawyer is bound to present by all fair and honourable means every defence that the law of the land permits in order that no person is convicted except by due process of law
Other Roles & Functions (from class notes)
· Advise accused throughout re: legal rights, jeopardy, options, best course of action
· Influence police decision-making:
o Alternative explanations of conduct, alternative guilty parties
o Alibi or other defences
o Mitigating or compassionate circumstances
· Influence Crown decision-making:
o No charge
o Recognizance
o Alternative measures
o Lesser charge or fewer charges
o Reduced initial sentencing position
o Different facts or mitigating / exculpatory admissions
Types of Offences
How To Determine Type of Offence
· Look to the punishment section in the CC:
o If punishable only by summary conviction à summary offence
o If punishable only by indictment à indictable offence
o If punishable by both à hybrid offence
· Some punishment sections are in the same section as the offence definition, some are not (e.g. theft defined in s. 322, punishment in s. 334)
Summary Offences
· Typically “less serious” offences, including all provincial offences
· 6 month limitation period for laying charges à s. 786(2)
· Commenced by laying an information à s. 788
· No Crown or defence election
· Tried by PCJ à s. 785
· Punishment is $5000 or 6 months in jail unless CC specifies à s. 787
· Appealed to BCSC
Hybrid Offences (watch for s. 553 offences!)
· Crown may elect to proceed summarily or by indictment
· If proceeding summarily, same procedure as summary offences
· If proceeding by indictment, check if Absolute Jurisdiction offence à s. 553
o If yes, NO defence election, no prelim, trial by PCJ à s. 536(1) & (2)
o If no, defence may elect PCJ, SCJ+J, or SCJ alone à s. 536(2)
§ NO prelim if elects PCJ à s. 536(3)
§ MAYBE prelim if elects SCJ+J or SCJ alone, depends on whether Crown or defence requests one à will be held in provincial court
· If proceeding summarily, appealed to BCSC
· If proceeding by indictment, appealed to BCCA
Indictable Offences (watch for s. 469 and 553 offences!)
· Typically the more serious offences, including murder
· Check if Absolute Jurisdiction offence à s. 533 (often the “vice” offences e.g. bawdy house)
o If yes, NO defence election, no prelim, trial by PCJ à s. 536(1) & (2)
o If no, defence may elect PCJ, SCJ+J, or SCJ alone à s. 536(2)
§ NO prelim if elects PCJ à s. 536(3)
§ MAYBE prelim if elects SCJ+J or SCJ alone, depends on whether Crown or defence requests one à will be held in provincial court
· Check if s. 469 offence (murder, treason, piracy, alarming Her Majesty)
o If yes, NO defence election, default is SCJ +J unless Crown and accused both consent to trial without jury
o If no, defence may elect PCJ, SCJ+J, or SCJ alone à s. 536(2)
§ NO prelim if elects PCJ à s. 536(3)
§ MAYBE prelim if elects SCJ +J or SCJ alone, depends on whether Crown or defence requests one à will be held in provincial court
· Crown may proceed by direct indictment with consent of AG or judge’s order à s. 577
o NO defence election, deemed SCJ +J w/o prelim à s. 565(2)
o But accused can re-elect SCJ à s. 565(3) (Crown consent needed if s. 469)
· Appealed to BCCA
Crown Elections – Factors to Consider
· Generally, Crown will proceed summarily if doing so would allow for an adequate sentence in the circumstances
· Proceeding summarily when has several advantages:
o Cheaper
o Faster
o Easier on victims (no jury, less formal, testify once)
· However, proceeding summarily also has disadvantages:
o 6 month limitation period for laying charges (query whether it is ethical for Crown to proceed by indictment for the sole reason of getting around the limitation period)
o Sentence limitation (although the maximum sentence of some summary offences have been increasing in recent years)
· Crown may elect direct indictment to avoid a preliminary inquiry, particularly if Crown witnesses are old or fragile or defence is delaying
Police Investigatorial Powers
Questioning
· Police generally always have right to ask questions (Kay)
· People generally don’t have obligation to answer, or even to listen unless detained
Detention
· Police have power to detain short of arrest in certain circumstances
· Detention must not be arbitrary à Charter s. 9
· Detention triggers ss. 10(a) & 10(b) Charter rights
· Types of detention include:
o Investigatorial detention (Mann)
o Random roadside stops à must be for valid motor vehicle purposes
o Roadblocks
Arrest
Civilian Arrests
· Anyone may arrest a person if à s. 494(1) & (2):
o Finds that person committing an indictable offence
§ Hybrids are indictable per Interpretation Act
o Reasonable grounds to believe that person has committed a criminal offence and has freshly escaped from and is being pursued by authorities with lawful power to arrest
o Owner of property (or in lawful possession of property) and offence occurs on or relates to the property
· Must forthwith deliver person to the police à s. 494(3)
Police Arrests
· Police may arrest a person if à s. 495(1):
o Finds that person committing any offence
o Reasonable grounds to believe that person has committed or is about to commit an indictable offence
o Reasonable grounds to believe that the person is the subject of a Criminal Code warrant currently in force within that territorial jurisdiction
· However, police shall not arrest if à s. 495(2):
o It is a summary, hybrid or s. 553 offence, AND
o Reasonable grounds to believe that arrest is not necessary in the public interest (i.e. to establish identity, preserve evidence, and prevent repetition / continuation of offence, AND
o Reasonable grounds to believe that arrest is not necessary to ensure attendance at court
Interrogation
· Police are entitled to attempt to obtain statement from detainee
· Detainee does not have right to have counsel present while questioned
· Police interrogation techniques may offend s. 7 Charter right to silence or common law confessions rule (see voir dire and Charter applications below)
Search & Seizure - Principles
Search:
· An examination by an agent of the state which constitutes an intrusion upon an individual’s reasonable privacy interest (Evans)