Crim. Pro.CAN – Winter 2014James Wegener

Table of Contents

Introduction

The Criminal Process

Hierarchy of the Courts

Role of Crown Counsel

The Attorney General

“Shawcross Principle”

Problem

Assistant Deputy Attorney General

Relationship of Crown Counsel with A-G

So what is the role of Crown Counsel?

Crown Counsel is Not

What are the Ethical Duties of Crown Counsel?

What that means…

Crown Counsel’s Exercise of Discretion

Policy Reasons

Exception

Civil Law Action – Suing the Crown

Malicious Prosecution

Policy – Guides for Crown Counsel

Charge Approval

Alternative Measures

Direct Indictment Procedure

Stay of Proceedings

Policy – What Crown Counsel is Not

Advocate for the Accused

Advocate for Victims or the Police

Agent of Change

The Role of Defence Counsel

Introduction

What Makes Clients Happy

The Beginning: Initial Advice and Retainer

The Initial Contact

The Initial Interview

Deciding Whether to Take the Case

Setting Fees and Retainer Agreements

The Middle: Preparing the Case for Trial

Sources of Information

Case Management

Ethics

The End: Conducting the Trial

What can go wrong?

Dealing with Other Players

Sentencing

Conclusion

Disclosure

The Purpose of Disclosure

R v Stinchcombe [1991] SCC

R v O’Connor

Krieger v Law Society of Alberta

What has to be disclosed?

When should it be disclosed?

What does not need to be disclosed?

Two Regimes for Third Party Disclosures

Non-Sexual Offences – Third Party Disclosures

Sexual Offences – Third Party Disclosures

Duty to Preserve Evidence

Stay of Proceedings Due to Lost Evidence

Police Bail

Guest Speaker – Sgt. Norm Fleming

What is “bail”?

Things to Consider

Is it in the public interest to release the individual?

Compelling the Accused’s Appearance

Ensuring Good Behaviour

For Provincial Offences

Holding the Accused in Custody

Judicial Interim Release

What is “Bail”?

Presumption of Granting Bail

Releasing on Bail

In General

In Front of a Justice

In Front of a Judge

The Bail Hearing

Who bares the onus?

Reverse Onus Provisions

Grounds for Seeking Detention

Grounds for Detention

The Primary Ground

The Secondary Ground

The Tertiary Ground

The Release

Forms of Release

Undertakings

Recognizances

What is a Surety?

Bail Review

Elections and Arraignments

Elections

Exceptions to Available Elections

Deemed Elections

Multiple Accused

Preliminary Inquiry

What is the key purpose of a Preliminary Inquiry?

No Preliminary Inquiry Allowed – Direct Indictment

When Preliminary is Set

After Completion of the Preliminary – Sheppard Test

Pre-Trial Applications and Affidavits

Bringing a Pre-Trial Application

Court of Competent Jurisdiction

Crown Pre-Trial Applications

Defence Pre-Trial Applications

Notice of Pre-Trial Application

Contents of Notice

When must notice be served?

The Purpose of Notice

Charter Application

Threshold Hearing

Affidavits

What is an Affidavit?

Form of an Affidavit

Exceptions to Usual Evidentiary Rules

Affidavit “Don’ts”

Expert Evidence

Dog Handler and the Dog

Forensics Identification Expert

Laws of Evidence and Expert Opinion

Notice of Expert Opinion

Failure to Comply with Notice

Sentencing

What is sentencing?

Fundamental Purpose of Sentencing

Just Sanctions Are Informed by s. 718

Denunciation

Deterrence

Separation from Society

Rehabilitation

Reparations

“A Sense of Responsibility”

Other Principles

Retribution

718.1 – Principle of Proportionality

718.2 – Aggravating and Mitigating Factors

Special Considerations

Types of Sentencing

Discharges – s. 730

Suspended Sentences – s. 731

Probation Order

Fines

Reparations

Conditional Sentences – s. 724.1

Jail

Proceedings

Special Reports

Passing the Sentence

Ancillary Orders

“Jump” or “Step” Principle

Mentally Disordered Offenders

Fitness: s. 2 of the Criminal Code

Presumption of fitness

R v Whittle (SCC 1994)

The ‘Mental Disorder’ defence in the Criminal Code

Who can raise it?

Mental Disorder or disease of the mind?

Appreciating Nature and Quality of Act

Knowing That the Act is Wrong

Appeals

Summary Conviction Appeals

Indictable Conviction Appeals

Appeal by Defence

Appeal by Crown

Appeal on Sentence

Introduction

The Criminal Process

  1. The offence is allegedly committed
  2. Regulatory
  • Usually provincial, but occasionally federal
  • May receive a violation ticket, or
  • “long form information”
  • “True Criminal Offence”
  • “long form information”
  • Not just Criminal Code offences
  1. Charge Approval
  • Crown receives a package from the police – Report to Crown Counsel “RTCC”
  • Crown decides whether to proceed or not
  • If yes, then charges are laid
  1. First Appearance
  • All first appearances are in provincial court
  • On a violation ticket, there isn’t technically a first appearance, because it is the only appearance – but will go to this same court
  • Usually have to make an application – not automatically granted
  • Held before a Judicial Justice of the Peace (JJP) – “Your Worship”
  1. Arraignment
  2. Pre-trial hearing
  3. Enter a plea
  1. Pre-trial motions
  2. Applications for Disclosure
  3. Other applications
  1. Trial
  2. Guilty or Not Guilty
  3. If Guilty, then proceed to sentencing
  1. Sentencing
  1. Appeal

Hierarchy of the Courts

Provincial Court

  • Provincial court judge – “Your Honor”
  • Summary conviction

Supreme Court

  • Supreme court judge – “My Lord” or “My Lady”
  • All indictable matters
  • Bail review
  • Appeals of some conviction matters

Appeal Court

  • Appellant court judge – “My Lord” or “My Lady”
  • Appeals on indictable matters
  • Appeals on certain regulatory matters

Supreme Court of Canada

  • SCC Judge – “Justice”

Role of Crown Counsel

The Attorney General

  • A-G is a member of the Cabinet
  • The independence of the A-G must extend beyond his or her ‘governmental role’
  • The A-G makes decisions informed by governmental policy, BUTthey must not be dictated by governmental policy
  • Prosecution of crimes is vested in the A-G
  • the A-G is the chief accusatorial officer for the Crown
  • the A-G is vested with discretion to commence and control criminal proceedings
  • BUT, that discretion must be exercised in an “independent and judicial manner” – R v Smythe (1970), 3 CCC (2d) 97
  • Crown Counsel Act, RSBC 1996 c 87 (“CCA”)
  • The A-G may give directions to institute charges, but those directions must be in writing and published in the Gazette – CCA, s 5
  • The A-G may also give policy directions, which may also have to be in writing and published in the Gazette – CCA, s 6

“Shawcross Principle”

  • “the assistance of [the A-G’s cabinet colleagues] is confined to informing him of particular decisions which might affect his own decision, and does not consist, and must not consist, in telling him what that decision ought to be”

Problem

  • The “Shawcross Principle” and the idea of the independence and discretion of the A-G is sound, but problematic
  • Would an A-G risk their Cabinet position (and political career) on a prosecutorial decision unpopular with their colleagues?
  • One solution is to vest power in a head of prosecution – the ADAG

Assistant Deputy Attorney General

  • The ADAG is head of the Criminal Justice Branch
  • The Branch is, for practical purposes, at arm’s length from the government
  • Section 3 of the Crown Counsel Act, RSBC 1996 c 87 (“CCA”)
  • names the ADAG the A-G’s delegate for Criminal Code purposes
  • charges the ADAG with “the administration of the Branch and with carrying out the functions and responsibilities of the Branch”

Relationship of Crown Counsel with A-G

  • The discretion of the A-G informs the discretion vested in Crown Counsel
  • That discretion is vested in Crown Counsel through an agency relationship with the A-G
  • That agency allows individual Crown Counsel to act as “accusatorial officers” in respect of criminal proceedings
  • It also is a matter of necessity – the A-G couldn’t possibly handle the Province’s court lists

So what is the role of Crown Counsel?

  • Crown Counsel is an advocate for the Crown
  • They are an agent of the A-G – accusatorial officers

Crown Counsel is Not

  • An advocate for the accused;Counsel for victims or the police; oran agent of change.
  • See Policy on this below

What are the Ethical Duties of Crown Counsel?

What that means…

  • As advocates, Crown Counsel have a duty to act fairly
  • There is also a duty to act impartially
  • These duties eschew any notion of “winning” or “losing” a criminal prosecution
  • In this way, Crown Counsel have been referred to as quasi-judicial officers
  • Applies to Crown Counsel’s exercise of discretion in all stages of a criminal prosecution:
  • Charge assessment;
  • Disclosure;
  • Trial;
  • Positions on applications (pre- and in-trial) and sentence; and
  • Appeals

Crown Counsel’s Exercise of Discretion

  • From last page: Crown Counsel have been referred to as quasi-judicial officers
  • Applies to Crown Counsel’s exercise of discretion in all stages of a criminal prosecution:
  • Charge assessment;
  • Disclosure;
  • Trial;
  • Positions on applications (pre- and in-trial) and sentence; and
  • Appeals
  • With certain exceptions, Crown Counsel’s exercise of discretion cannot be reviewed by the Court
  • Note: non-reviewability only applies to matters of “core” prosecutorial discretion

Policy Reasons

  • the independence of Crown Counsel cannot be expected to survive if it the exercise of Crown’s discretion is subject to review by the Court

Exception

  • The exception, as stated in Krieger and Nixon, is the abuse of process doctrine
  • The court, under that doctrine, retains a residual discretion to review the exercise of prosecutorial discretion if such discretion amounts to an abuse of process
  • In order to undertake the analysis, there must be some evidence to suggest that an abuse of process is present
  • Note: in Nixon the Crown’s repudiation of the plea agreement was enough

Civil Law Action – Suing the Crown

  • Crown Counsel are also not absolutely immune from civil actions for malicious prosecution
  • The tort allows for redress where “a prosecutor acts maliciously in fraud of his or her prosecutorial duties with the result that the accused suffers damage.” – Kvello vMiazaga, at para. 7
  • The tort is only made out where there is prove of improper purpose or motive

Malicious Prosecution

  • Malicious prosecution is hard to prove – same policy reasons as judicial review
  • “Malice” is required to prove the tort
  • This does not include recklessness, gross negligence (incompetence) or bad judgment
  • Malice can only be found where Crown Counsel’s conduct constitutes:(Kvello v Miazaga)
  • “an abuse of prosecutorial power”; or
  • the perpetration of “a fraud on the process of criminal justice”

Policy – Guides for Crown Counsel

  • Policy is the means by which the populace can gain an understanding of what guides Crown Counsel’s exercise of discretion
  • While policy cannot fetter Crown Counsel’s exercise of core discretion, it can guide it and provide a principled framework for its exercise
  • This, then, allows for greater transparency in the Crown’s exercise of discretion
  • It also provides a framework for a consistent exercise of that discretion throughout the province

Charge Approval

  • In British Columbia Crown Policy CHA 1 guides the exercise of prosecutorial discretion in the “core” decision of whether or not to commence a prosecution
  • It also provides ongoing guidance, in that the charge assessment function is continual throughout a prosecution
  • It also allows the public to understand the framework of why charges are or are not laid

Alternative Measures

  • ALT 1

Direct Indictment Procedure

  • DIR 1

Stay of Proceedings

  • RES 1

Policy – What Crown Counsel is Not

Advocate for the Accused

  • This is, at its core, the role of defence counsel in our adversarial system
  • Further, the interests of the accused are often at odds with the interests of the state
  • This is not to say that Crown Counsel cannot make decisions that benefit an accused person
  • e.g. a position taken on sentence emphasizing rehabilitation
  • However, any decisions that get made to benefit an accused must be informed by policy and the rule of law

Advocate for Victims or the Police

  • Victims often mistake Crown Counsel as “their” lawyer
  • Similarly (though fortunately not often) the police sometimes mistakenly believe Crown Counsel is advocating for them or their view of a file
  • Both examples are incompatible with Crown Counsel independently exercising their discretion
  • Further, over-identification with victims or police can lead to wrongful convictions, and risks a “win” mentality

Agent of Change

  • Laws are enacted by Parliament, which represents the collective will of the populace
  • If duly enacted laws are not followed, the Rule of Law is subverted
  • Crown Counsel exercising discretion in a manner contrary to duly enacted laws is problematic because:
  • The populace entrusts Parliament, not civil servants, with enacting laws;
  • The populace expects that when laws are duly enacted, they will be followed; and
  • The populace expects that those entrusted by Parliament to uphold the laws that they have entrusted Parliament to enact will do so

EXAMPLE: Mandatory Minimum Sentences

  • The current Government of Canada has increased the length of and number of offences to which MMS apply
  • MMS have faced constitutional challenges under s. 12 of the Charter in several cases
  • As the argument goes, Crown Counsel’s quasi-judicial role and duty of fairness preclude them from supporting MMS
  • However, a more cogent argument is made that Crown Counsel are duty bound to support the constitutionality of MMS

The Role of Defence Counsel

Introduction

What Makes Clients Happy

  • Be honest and up front with your clients
  • Do your best
  • It isn’t just winning the trial

The Beginning: Initial Advice and Retainer

The Initial Contact

  • See Hewson article on Impaired Driving- Checklist on back page
  • In General
  1. Ensure Client’s Right to Communicate in Privacy

Client should be alone in the room, with the door closed

  1. Find out Client’s Name and Location
  2. Talk to the Police

Find out the nature of the charges

Find out what investigatory steps have been taken and those anticipated

Find out if the Police intend to release your client – they have discretion to do so

  1. Inform Client of their Right to Remain Silent and Advise them to Use It

Only possible exception is for informing police of identity

Police have the Right to Fingerprint and Photograph Persons those arrested for an indictable offence – but no right if client is just a suspect

The Initial Interview

  • You learn to do it with practice
  • Let the client talk – they have baggage that they want to let go
  • Then you ask general background questions and some questions about the specific incident
  • Talk about the process, the timelines, the penalties, the defences, the legal fees
  • Tell them how you think their case might turn out – compare to other cases you have had
  • Tell them you don’t have a crystal ball and you can’t know the ultimate outcome for this case

Deciding Whether to Take the Case

  • Follow your gut on the person (not on the charge)

Setting Fees and Retainer Agreements

  • You have to have a retainer letter
  • You have to indicate the fees are estimated based on what you know about the case right now
  • The fees may have to be readjusted
  • Don’t open a file until the Money is in Trust
  • There are Law Society Money Laundering Rules

The Middle: Preparing the Case for Trial

Sources of Information

  • RTCC
  • Information from the client
  • Information from consultants, experts, etc..

Case Management

  • Criminal Case Flow Management Rules do not exist anymore
  • System is newly changed
  • Decisions You and Your Client Need to Make
  • Does your client want to plead guilty?
  • Do you want to pursue a Voir Dire?
  • Etc..

Ethics

  • You cannot assist criminal organizations (Mastop case)
  • You can act for a criminal organization as a lawyer
  • You need to know where the lines are
  • You need to communicate those lines
  • Avoiding conflicts of interest
  • Solicitor client privilege
  • Withdrawal of services
  • There are reasons you can and cannot withdrawal services for
  • Duty of aggressive representation
  • Duty to advance every argument that can reasonably be made
  • Duty not to mislead the Court on factual matters

The End: Conducting the Trial

What can go wrong?

  • Failure to appear
  • Late Disclosure
  • Lack of Court Time

Dealing with Other Players

  • Dealing with Prosecutors
  • They want to beat you
  • They want to see your client go to jail
  • Be honest, be prepared, and have your act together
  • Don’t take cheap shots
  • Dealing with Police
  • Be fair and firm with police officers
  • Never lie to them, never insult them
  • Dealing with Judges and Court Staff
  • Dealing with the Media

Sentencing

  • Most difficult part of the case
  • Often not enough time or focus is on this
  • Know the Law, and Know the Facts
  • Plea Agreements
  • An important part of the law
  • Remember: judges do not have to agree to a plea agreement

Conclusion

  • Defence counsel are an essential part of the justice system
  • Choose to be defence counsel, don’t let the role choose you

Disclosure

The Purpose of Disclosure

R v Stinchcombe [1991] SCC

  • Prior to Stinchcombe there was no policy for disclosure
  • There were statements that would have benefited the accused, but the Crown refused to disclose the information
  • Stinchcombe addresses disclosure under s. 7 of the Charter - it falls under the accused’s right to make full answer and defence
  • Sopinka:
  • “… the fruits of the investigation which are in the possession of counsel for the Crown are not the property of the Crown for use in securing a conviction but the property of the public to be used to ensure that justice is done.” – para. 12
  • Lack of disclosure lead to wrongful disclosure in certain cases – para. 17