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CRIMINAL PROCEDURE I. THE CHARGE a. SUMMARY VS. INDICTABLE OFFENSES i. Two categories: Indictable and summary offences.

Offences can be hybrid (i.e. prosecutor has right to elect whether to treat as indictable or summarytheft, mischief depending on severity). ii. Summary: have 6 mo. SoL to bring charge, max 6 mo. Imprisonment or fine of $2000 or both. Trial in Court of Criminal Jurisdiction. iii. Indictable: Usually more serious. No SOL. Allow max term of imprisonment that exceeds 2 years. Election for Trial: by Superior Ct Judge & jury; Superior Ct Judge only; Provincial Ct Judge b. LAYING THE CHARGE i. Jurisdiction (p. 46): No person may be considered an accused in the absence of a charge and, therefore, no court can have jurisdiction over the prosecution of a person in the absence of a charge. 1. Prosecution may be conducted in any province or territory in which an element of the offense occurred. ii. Information: sworn out by anyone who has reasonable grounds to believe offense has been committed. PO must personally know enough to reasonably believe that offence has been committed. iii. Private prosecutor can exist by swearing information before judicial authority. If ordered to stand trial after prelim inquiry, private prosecutor may not prefer an indictment against that person w/o written authorization of a judge in court of trial. Some offences require that AG personally consent to prosecution. iv. Public prosecutions begin when information laid by a public officer can laid by prosecutors after they have reviewed reports form police or other authorities c. Charging document (p. 150)- With the exception of Direct Indictments (allowing Pros. to prefer indictment w/o prelim inquiry), indictable offences are charged when an information is sworn, received, and approved by a judicial officer in accordance with sections 504 - applies equally to summary offences. i. s 504 (non-discretionary, ministerial function): Justice must receive the information where: 1. any person who has reasonable grounds to believe an offence has been committed; 2. under oath, lays an information in writing; AND 3. the information alleges a number of required things ii. s 506: An information may be laid in the manner set out in Form 2 iii. s 507 (substance of information considered): Once the information has been received, Justice who received the information must consider the substance of the informations allegations. Essentially, judge, to endorse it, must conclude that there are REASONABLE GROUNDS, as disclosed in the information and any evidence adduced thereof, that the offence was committed. iv. If judge signs information, that marks the moment at which charge is formally laid and prosecution begins v. Justice of peace decides whether to issue summons or warrant, then accused makes initial appearance in court to respond to charge vi. The charge document: whether the trial proceeds by information (for provincial courts/summary proceeding) or an indictment (for superior courts), it is the starting point for the trial and sets out the case accused has to meet. Can then proceed by summons or warrant. vii. Usual procedure for indictable offense is to begin with a prelim inquiry on information before provincial ct judge, and then if accused is committed for trial, prosecutor will file (prefer) an indictment in superior ct d. SIGNIFICANCE OF THE INDICTMENT i. When not tried by provincial ct, indictment is prepared (usu following prelim inquiry) and can include any charge on which the person was ordered to stand trial or any charges based on facts disclosed at prelim inquiry. ii. Direct indictment permit prosecutor to prefer an indictment when accused has not been given the opportunity to request a prelim inquiry, the prelim inquiry. iii. The accused is in jeopardy of conviction only for the offence charged, and for any offences that are included in the criminal charge, but nothing more iv. R v G.R: acquitted of the charge of incest. At Ct of appeal- crown argued that D should be convicted of sexual assault. Whether the rules governing included offences under s 662 of the

Criminal Code can be applied to justify the result in this case of the respondent being found guilty of sexual assault/sexual interference, but being acquitted of the charge of incest? 1. It is fundamental to a fair trail that an accused knows the charge or charges he or she must meet the proper focus is on what the Crown alleges, not on what the accused already knows 2. The Crown seeks to have the respondent convicted of charges which require the prosecution to establish elements which were not part of the allegations against him at trial 3. An offence is included if its elements are embraced in the offence charged, or if it is expressly stated to be an included offence in the CC itself. e. THE VALIDITY OF THE CHARGE i. Joinder and Severance 1. Each count covers single transaction but this is given a broad interpretation 2. Can have a joinder and severance of counts/parties 591(3) 3. General rule is that s who committed crime together should be tried together. Even if two accused testifying against each other, general principle is that they should be tried together (possibility of inconsistent verdicts militates against severance). But accused can also ask for separate trial if e.g. wants to testify on some counts but not others. ii. Content of Charges - Must be sufficiently detailed: s 581(3). 1. The purpose is of each count in an indictment is to put the accused on notice of the case to meet 2. There are two interrelated rules: s 581(3) (insufficient detail) and the surplusage rule (excessive detail- fact need not be proven, despite being alleged, will depend on whether defence will be prejudiced). 3. R v. NC accused charged w/trafficking in cocaine, but only baby powder. Crown obliged to prove cocaine b/c it was in charge, even though baby powder wd have been offense in its own right. 4. Venzina- accused charged w/defrauding Bank of Montreal- but different victim. Ct held that information valid b/c it didnt have to specify a victim so Crown didnt need to prove victim mere surplussage. iii. Remedies for a Defective Charge - 3 possibilities: 1. So flawed that the charge is an absolute nullity: TJ has no jurisdiction to hear the matter, and the charge must be quashed. But the Crown can lay a new charge. 2. Charge might be flawed, but not so flawed that it is a nullity: TJ is to AMEND the charge. Grant an adjournment in order to remedy the prejudice [Note: a charge will only be quashed if the prejudice caused by the amending cannot be remedied by an adjournment] 3. The remedies set out in s 601 (p. 303) iv. Insufficient Charge: 1. Indictment must lift the charge from general to the particular. may seek particulars. v. Duplicitous Charge: 1. Charges w/ committing two difference offences, and objectionable b/c ambiguity prevents accused from knowing which case to meet. 2. Remedy: Amend charge or divide into two counts. Only Trial Judge can divide count. II. THE ADVERSARIAL PROCESS a. The presumption of innocence and the ultimate standard of proof: An accused is presumed to be innocent: s 11(d) Charter. The Crown must prove guilt BRD. i. R v Lifchus: BRD does not involve proof to an absolute certainty; it is not proof beyond any doubt nor is it an imaginary or frivolous doubt. More is required than proof that the accused is probably guilty. It must not be based upon sympathy or prejudice. Rather, it is based on common sense; it is logically derived from the evidence or absence of evidence. A jury charge that includes these considerations will be a valid one. ii. R v. S (J.H) No burden shifting from Crown to . Where credibility is a central issue in a jury trial, the judge must explain the relationship between the assessment of credibility and the Crown's ultimate burden to prove the guilt of the accused to the criminal standard. A general instruction on reasonable doubt without adverting to its relationship to the credibility (or lack of credibility) of the

witnesses leaves open too great a possibility of confusion or misunderstanding. It must be made crystal clear to the jury that the burden never shifts from the Crown to prove every element of the offence beyond a reasonable doubt. b. Other Burdens

i. For directed verdicts, and to be able to pass through the preliminary inquiry stage, the defence and the Crown, respectively, must show that there is a prima facie case. ii. TEST: Whether there is any evidence upon which a reasonable trier of fact, properly instructed, could convict (Arcuri). For circumstantial evidence, the judge is required to determine what reasonable inferences can be made (i.e. whether elements of offence may be reasonably inferred from evidence). The judge only asks whether the evidence, IF BELIEVED, could reasonably support an inference of guilt. iii. R v. Arcuri: charged with 1st degree murder. At the preliminary inquiry, the Crown's case was
entirely circumstantial. Was this evidence sufficient to commit to trial? 1. Where the Crown's evidence consists of, or includes, circumstantial evidence, judge must engage in a limited weighing of the whole of the evidence (i.e. including any defence evidence) to determine whether a reasonable jury properly instructed could return a verdict of guilty. In performing the task of limited weighing, the preliminary inquiry judge does not draw inferences from facts. Nor does she assess credibility. Judge's task is to determine whether, if the Crown's evidence is believed, it would be reasonable for a properly instructed jury to infer guilt. Burden to rebut a presumption: There are numerous rules of evidence called presumptions that operate to assign burdens of proof on the accused. A presumption directs judges/jury to assume that a fact is true (known as the presumed fact) in any case where the Crown proves that another fact is true (known as the basic fact), unless the accused can rebut the presumed fact according to the assigned standard of proof. Mandatory presumptions can be rebutted by the accused simply raising a reasonable doubt about whether the presumed fact follows from the basic fact. A presumption can be recognized as a mandatory presumption because the legal rule raising the presumption will use the term evidence to the contrary to describe the burden of rebuttal. A presumption will be interpreted as a mandatory presumption where it fails to set out the required standard of rebuttal. Other presumptions operate as reverse onus provisions, deeming the presumed fact to exist where the Crown proves the basic fact, unless the accused disproves the presumed fact on a balance of probabilities. R v Cinous (In criminal cases, the accused may have an evidential burden where she seeks to rely upon positive defences, like self defence; Air of reality test is well established: in other words, a defence should be put to a jury if and only if there is an evidential foundation for it. Whether there is an air of reality to a defence is a question of law. i. Two principles derive from this test: (1) a judge must put to the jury all defences that arise on the facts which have an air of reality (2) they must keep from the jury defences lacking an evidential foundation. ii. In applying the test, look at the totality of the evidence, and the purpose is not aimed at establishing the substantive elements of the defence. Here, three conditions of self-defence were not all met on the facts of this case, the defence lacked the "air of reality" required in order to warrant leaving it with the jury Reverse onus defences - BoP on D to put forward evidential (Question of law) and persuasive burden (question of fact) on balance of probabilities. i. R v Fontaine (Putting in play reverse onus defences just requires evidential, not persuasive burden): In Stone, it appeared that the accused needed to discharge a persuasive burden before the jury could even hear the defence of non-mental disorder automatism. In Fontaine, the Court altered this. It was held that all the accused has to do is put forward evidence on balance of probabilities capable of supporting the defence. ii. R v. Oakes: Law stated that one in possession of a narcotic would be presumed to be in possession for the purpose of trafficking, and the accused would have to establish the contrary 1. A law which requires an accused to disprove on a balance of probabilities the existence of a presumed fact violates the presumption of innocence of s. 11(d). S. 8 of the Narcotic Control Act infringes 11(d) by requiring he is not guilty of trafficking once the basic fact of possession is proven.



e. f.


h. The neutral impartial trier i. R v Gunning: Judge cant make fact findings. Fatally shot intruder, but claimed that gun fired accidentally. Focus on whether the shooting was intentional or accidental. Trial judge told jury
that careless use of a gun had been made out, but refused to instruct jury on defence of property. Later, he purported to correct the instruction on careless use of a firearm. D convicted of murder 2. 1. HELD - Judge erred in instructing jury that Crown had proven the unlawful act necessary to prove murder or manslaughter, and recharge did not cure the error. 2. Basic principle of law that jury is to decide whether an offence has been proven on the facts. Judge entitled to give an opinion on a question of fact but not a direction. Trial judge has no duty or entitlement to direct a verdict of guilty and the duty to keep from the jury affirmative defences lacking an evidential foundation does not detract from this. ii. R v Hamilton [Judges cant make findings w/o evidence]: H and M were charged with importing cocaine. Both black single mothers. At the sentencing hearings, extensive social context evidence concerning poverty, gender bias and racism was filed. Judge concluded that the women should not receive imprisonment. 1. Judge made several findings of fact which were not supported by evidence (e.g., the respondents were paid minimal amounts and used those amounts to provide the bare necessities for their children). 2. Judge did not purport to base his findings of fact on any material that actually related to these respondents. While a judge is permitted to use common sense and wisdom gained from personal experience in judging the trustworthiness of a particular witness, the judge must avoid judging the credibility on the basis of generalizations or upon matters that were not in evidence, Cory J said in R v S (R.D.). The role of the prosecutor i. R v Cook: Part of the Crowns discretion involves the choice of which witnesses to call. The accused is not ambushed by the fact that a given witness is not called; any existing unfairness can be resolved through the disclosure process and the accuseds ability to call the witness. The onus to prove the Crowns misconduct lies upon the accused why didnt cook call witness? ii. Krieger v Law Society of Alberta: Prosecutorial discretion will not be reviewable except in cases of flagrant impropriety. Because Crown prosecutors must be members of the Law Society, they are subject to the Law Societys code of professional conduct, and all conduct that is not protected by the doctrine of prosecutorial discretion is subject to the conduct review process. As the disclosure of relevant evidence is not a matter of prosecutorial discretion but rather a legal duty, the Law Society possesses the jurisdiction to review an allegation that a Crown prosecutor acting dishonestly or in bad faith failed to disclose relevant information, notwithstanding that the Attorney General had reviewed it from the perspective of an employer. iii. A clear distinction exists between prosecutorial discretion and professional conduct, and only the latter can be regulated by the Law Society. Disclosure of relevant evidence is a matter of prosecutorial duty, and transgressions related to this duty constitute a very serious breach of legal ethics. iv. Here, it appears that K failed to disclose relevant information, a violation of his duty, but later offered an explanation which would help to determine if he had acted dishonestly or in bad faith. If so, this would be an ethical breach falling within the Law Societys jurisdiction. The Law Societys jurisdiction to review Ks failure to disclose relevant evidence to the accused is limited to examining whether it was an ethical violation. v. R v. Proulx: Prosecutors are vested with extensive discretion and decision-making authority to carry out their functions and courts should be very slow to second-guess a prosecutors judgment calls when assessing Crown liability for prosecutorial misconduct. The Department of the Attorney General and its prosecutors, however, are not above the law and this is one of the exceptional cases in which Crown immunity for prosecutorial misconduct should be lifted. Nelles sets out four requirements that must be established on a balance of probabilities in an action in damages based on prosecutorial misconduct and those requirements are satisfied here. The record reveals that: 1. the respondent initiated the prosecution; 2. the prosecution resulted in the appellants acquittal;


3. the Crown prosecutor did not have reasonable and probable cause upon which to found the
charges brought against the appellant; and

4. the prosecution was motivated by an improper purpose.

THE CRIMINAL INVESTIGATION III. Police Powers a. Theme throughout: balancing liberty with public security. s. 8 of Charter (unreasonable search or seizure) and s. 9 (arbitrary detention). b. General police powers: Police have broad powers under statute (mainly Criminal Code), and common law. i. Statutory powers (p. 12): arrest; search building, receptacle or place w/ warrant & seize, seize w/o warrant, compel court appearance w/ summons or appearance notice; use force; Prov laws for random stops of vehicles, searching crossing border. c. Historical Common Law powers: (p.14) i. Search incident to arrest for the purposes of ensuring safety, protection of evidence from destruction & discovery of evidence that can be used at trial. (R v Caslake). ii. Strip searches incident to arrest: must have reasonable belief that ss is necessary in particular circumstance. Done at police station unless PO believe cant be postponed (R v. Golden) iii. Enter private dwelling in a hot pursuit (R v. Feeney). Otherwise, unreasonable. d. Ancillary Powers Doctrine New CL powers (R v Waterfield) (p 17): i. TEST: Does conduct fall w/in the general scope of any duty imposed by statute or recognized at common law; second, does the conduct, within the scope of such duty, involve an unjustifiable use of powers associated w/ the duty? Problems with relying on this test, though, as it was not intended to allow the creation of new CL powers. e. Default Common Law Powers: i. Essentially allows POs to do anything absent statutory power, unless can show violated Charter. EG: Allows for unreasonable search & seizure that goes against S. 8 of Charter. Can only claim S. 8 violation if had a reasonable expectation of privacy. Allows for gathering evidence to incriminate guest of dwelling or passenger of car rather than tenant & driver (have exp. of priv). f. Consent: Mere compliance is not enough. Must be voluntary. If given initially, can be revoked. g. SEARCH & SEIZURE (p. 63) i. Generally: Balance individual interests (i.e. liberty) with interests of the state (Hunter v. Southam) ii. SEARCH Definition: A state investigative technique is or is not a search depending on whether it infringes on a persons reasonable expectation of privacy. iii. SEIZURE: Whether s reasonable expectation of privacy was infringed. Distinction b/w evidence seized & found: 1. Found EG: PO takes sample of blood from car seat at accident not seizure. Gathering bodily samples where abandoned by (if in custody & discards, IS a seizure). h. Searches With Warrant s. 487 Searching Places: (1) Must be issued by Justice. (2) Justice must be satisfied on reasonable & probable grounds that evidence will be found. (3) Facts must be clear & concise, and set out fully & frankly by someone w/ first hand knowledge, which was obtained legally. 4 categories warrant issued for: 1. Anything on or in respect of which an offence has been committed; 2. Anything that will provide evidence regarding an offence or the location of a person suspected of committing an offence; 3. Anything reasonably believed to be intended to be used to commit an offence for which the person could be arrested without warrant or 4. Offence related property; ii. Search must be related to a building, receptacle or place exterior & surrounding area of building. There must be someone responsible for carrying out the search; iii. LIMIT: Need for Specificity in advance: PO must inform Justice w/ reasonable degree of precision, what evidence will be found.

iv. NOTE: s 489 allows police who are searching under a warrant to seize items not mentioned in the
warrant if they believe on reasonable grounds that they were obtained by, or were used in, or afford evidence concerning an offence. i. Search of Person DNA Warrant: Warrants for taking blood, saliva etc i. Only available for designated offences listed in s 487.04 (see p 945 of Code) EG: sexual offenses, offenses causing death/bodily harm. ii. Warrant Requirements: Provincial court judge must be satisfied by information on oath that a bodily substance connected with an offence has been found, that a person was a party to the offence, and the DNA analysis of the substance will provide evidence about whether the bodily substance was from that person; judge is required to believe that the issuing of the warrant will be in the bests interests of the administration of justice. (p 72) iii. Different rules apply when the DNA warrant concerns young people (see p 73) iv. Other Statutory Search Warrants: p. 76 j. Reviewing a warrant: i. Code contains no provisions to review a warrant. Possible to challenge the issuance of a warrant by way of Certiorari (used to review the process by which the warrant is used). ii. Central issue in reviewing: whether the requirements for its issuance under the Code have been met iii. The question for Judge is whether there is evidence upon which the issuing judge could have decided to issue the warrant (R v Garofoli). The actual result of the search is not relevant on review k. Searches W/O Warrant (p. 81) i. Warrantless search is prima facie unreasonable under s 8 Charter (no unreasonable search and seizure) (Hunter v Southam). ii. Warrantless search must be made consistent w/ minimum Charter standards: 1. Threshold issue: First, to be a breach of s 8, the individual searched must be determined to have a reasonable expectation of privacy over their person, territory and information (if no exp of privacy, no unreasonable search/seizure). 2. Expectation of Privacy = Entitlement to privacy not whether actually had privacy. Privacy that a person can EXPECT to enjoy in a free and democratic society (Wong) 3. Edwards Totality of Circumstances factors: (1) Presence at the time of search, (2) Possession or control of property searched, (3) Ownership of property, (4) Historical use of property, (5) Ability to regulate access. Edwards was guest no privacy. (Belvanis passenger in vehicle has no reasonable expectation of privacy.) iii. Three kinds of interests that privacy protects (Tessling) 1. Personal privacy (e.g. strip search) Highest protection 2. Territorial privacy More protection in home, less in vehicle, less in prison 3. Informational privacy = More difficult to prove, s.8 protects a biographical core of personal information - information which tends to reveal intimate details of the lifestyle and personal choice of the individual. Not limited to intimate details, but not everything individual wants to keep confidential is protected by s.8. Tessling involved heat being emitted from hometaken as informational privacy, not territorial, so fly-over detecting pot plants didnt violate. iv. If reasonable expectation of privacy, prima facie violation of s 8 right. Issue then is: whether the search itself is reasonable, or was it an intrusion, in light of that expectation of privacy determined by the Collins factors: 1. Is the warrantless search authorized by law: a. Statute: 487.11 authorizes Warrantless search if conditions for warrant exist, but impracticable to get b/c of exigent circumstances (in relation to the s 487(1) search & seize building, receptacle, place & 492.1 seize explosives search warrant power) b. Common Law: i. Search incident to arrest Was the arrest was lawful? 1. Search truly incidental to that arrest. Search must be related to the actual arrest made. a. Valid purpose objectively exists & subjective officer determination to conduct search e.g. to ensure safety;

protection of evidence from destruction, and discovery of evidence (R v Caslake). 2. Search was conducted in a reasonable manner. 3. Can extend to surrounding area building or car in which was arrested (Cloutier). HOWEVER, search of home incident to arrest not allowed except in exceptional circumstances where a compelling state interest arises. Eg: risk of harm. ii. Search during Investigative Detention: Absence of reasonable grounds to arrest. 1. Must have independent grounds to justify the search. 2. Must be conducted in reasonable manner limited to pat down. 3. Only if pat down gives rise to reasonable grounds that more intrusive search is necessary (feeling hard object) can PO proceed further. 4. Search must be both objectively & subjectively justified. iii. Exigent Circumstances: Not a justification for search, but for proceeding w/o warrant. Grounds for search must exist independently. Imminent danger of loss, removed, destruction of evidence if delay. c. Consent - Whether consent valid & extent of consent: i. Compliance doesnt constitute consent. Valid waiver requires to have at leas sufficient available info to make the preference meaningful. R v. Wills sets out conditions that need to be satisfied (p. 106) 2. Is the law itself reasonable? The higher the level of privacy expected, the more difficult it will be to determine that the search was reasonable, 3. Is the manner in which the search is carried out reasonable? Physical part. a. The more intrusive the nature of the search, the greater the constraints on way in which can be reasonably performed. v. NOTE: There are variations on the Hunter v Southam standard. Searches under an administrative scheme and searches of press offices have different rules (see p 111) l. General warrants s 487.01. Provides warrants to perform investigative techniques not covered by Code. i. More broad b/c allows search for evidence, and also allows PO to use any device, technique, procedure or do anything. ii. Anticipatory Warrant: Allows for warrant on grounds that offence will be committed (as opposed to has been committed of s. 487) iii. Not limited to building, receptacle, or place like s. 487 iv. Shows that there are NO LIMITS on techniques potentially authorizable. v. LIMITS: Issued by Judge or Justice (but not of peace). Judge can attach conditions. Just must be satisfied that is in the best interest of justice to issue warrant. m. Powers of Detention at the Investigative Stage (p. 127) n. Definition of detention: Not only situations where POs have actual legal power to compel a person to reamin, but also some situations of psychological detention. This is when s. 10(b) right to counsel applies. NO bright line rule. P. 130 sets out some characteristics to decide if detention o. R v. Grant: PO patrolling high crime area. Stopped G b/c he looked suspicious. Stop was detention b/c reasonable person in Gs position would conclude by PO conduct that he had no choice but to comply with demands. Detention was unlawful b/c PO lacked reasonable grounds to suspect G committed an offence. i. Factors to determine if reasonable person deprived of liberty of choice: 1. Circumstances giving rise to the encounter as they would reasonably be perceived by the individual; 2. Nature of the police conduct; and 3. Particular characteristics or circumstances of the individual where relevant.

p. R. v. Suberu: D delayed but not subject to detention by wait a minute, I need to talk to you. The police
duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention. Used Grant test to determine if detention. q. Common Law Powers of Detention:

i. Some powers of detention exist by statute. The ability to make breathalyser demands and routine traffic stops, and some aspects of customs searches are all legislatively created detentions. ii. CL detentions more controversial: EG - Dedman case upheld program of randomly stopping cars w/ goal of detecting impaired drivers, under Waterfield test as a valid form of detention. Waterfield: does PO conduct fall w/in scope of duty imposed by statute or CL? Does conduct involve unjustifiable use of powers associated w/ the duty? r. Investigative detention - Mann Test: The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing POs suspicion there is a clear nexus b/w individual detained & a recent or ongoing criminal offence. The overall reasonableness of the decision to detain must further be assessed against all of the circumstances the extent to which interference w/ individual liberty is necessary to perform POs duty. s. Police roadblocks (p. 141) t. Ability to break the law: s 25.1 meant to be used as a defense (undercover work), but has actually created a new police power. POs permitted to break law if in their judgment, that is a reasonable choice.


TAKING CONTROL OVER THE ACCUSED: Arrest, Compelling Appearance w/out Arrest, and Bail a. Jurisdiction over Accused (p. 50-53) i. Indictable offenses not barred by a time period of limitation brought at any time. Summary conviction matters must be brought w/in 6 months from completion of offence. b. Arrest (p. 171) taking physical control over the subject is to be used as a last resort when other measures available for ensuring good conduct & court attendance not desirable. - Judicial confirmation must occur before or after the arrest. PO cant unilaterally compel the appearance of in court. That decision must, at some point, be confirmed by a JP. Confirmation can occur either before or after arrest. c. Arrest Definition: Words of arrest accompanied by touching w/ view of detention, or by the person submitting to the arrest (R v Whitfield). d. Must give notice to arresting person of reasons for arrest: s 10(a) Charter; s 29 e. Arrest with a warrant: i. Warrant can be issued only after an information that sets out reasonable grounds to believe that person has committed an offence is laid before Justice: s 504 creates this for indictable offences and s 795 for summary offences. Must give notice to arresting person of reasons for arrest: s 10(a) Charter ii. A summons MUST be issued instead of a warrant, unless to do so would not be in the interests of the public: s 507. f. Arrest without warrant - s 494 and 495 i. 494 Applies to any one (and is regarded as the citizens arrest power: 1. Anyone may arrest someone they find committing an indictable offence 2. Anyone may arrest someone they find fleeing from authorities, if they reasonably believe an indictable offence was committed. 3. s 494(2) applies to property owners arrest power ii. s 495 Applies to police officers 1. Peace officer may arrest anyone who has committed an indictable offence or who, on reasonable grounds, he believes has committed, or is about to commit, an indictable offence 2. Peace officer may arrest anyone he finds committing a criminal offence (i.e. apparently committing: R v Biron) 3. Peace may arrest a person if he reasonably believes that a warrant exists for the persons arrest iii. s. 495(2) Limits (only guidelines) - The officer may arrest only to: 1. Establish identity of accused; 2. Secure or preserve evidence of or relating to the offence; 3. Prevent the continuation or repetition of an offence. Alternatively, officer may arrest if its evident accused wont appear in court. g. Supporting powers i. PO justified in using as much force as necessary when making an arrest, provided that there is reasonable grounds to use that much force. Criminally responsible for using excessive force.

ii. Force likely to cause death/ GBH permitted only when:

1. Even if there is a warrant, a warrantless arrest would be allowed; 2. has taken flight to avoid arrest; 3. Person using force believes it is reasonably necessary to protect PO/other person from imminent or future death/GBH; 4. Flight of person cant be prevented in less violent manner iii. Making arrest in Dwelling House Judicial preauthorization required 1. Person issuing warrant must be satisfied on reasonable grounds that to be arrested is present immediately before entering dwelling house. 2. PO can enter w/o warrant in exigent circumstances: immanent harm, destruction of evidence 3. Knock & Announce, except when announcement would expose PO/other person to imminent harm or destruction of evidence. 4. Common Law exception to enter dwelling in hot pursuit single transaction. h. Rights arising on arrest i. Statutory protections: 1. s 497 PO who has arrested for one of the offences listed in s 495(2)(a), (b) or (c) (summary conviction/hybrid) to release on an appearance notice or summons, unless grounds similar to those in sections 495(2)(d) or (e) apply (i.e. believes that need to get ID; secure evidence; wont show in court etc) 2. Where the offender is NOT released, s 503 comes into play; accused is to be brought before a JP to consider the issue of release without unreasonable delay, and in any event, within 24 hours. Failure to do so may result in arbitrary detention under s 9 Charter. ii. Charter rights on Arrest (p. 187): 1. s 10 of the Charter creates specific guarantees arising on arrest: (a) accused must be informed promptly of the reasons for arrest; (b) must be informed of right to counsel 2. Informational Duties: Informed of right to retain counsel, which includes: info a/c access to counsel free of charge, how to gain access to this service. Cannot be waived. a. should be re-warned if: substantial change in circumstances affecting s degree of jeopardy; if who initially wants to talk to counsel, changed mind. 3. Implementation Duties not as firmly guaranteed: a. Where requested to speak w/ counsel, provide w/ reasonable opportunity to do so. b. To consult in private. Pick counsel of choice. c. When counsel requested, PO hold off from questioning until had time to do so. d. Can be Waived: declining to speak to counsel. e. Can be lost if not reasonably diligent in exercise of rights. Silence wouldnt be a waived, but could be a failure of reasonable diligence. f. arrested & has spoken w/ counsel may then be questioned by PO. i. COMPELLING APPEARANCE WITHOUT ARREST i. Compelling appearance when charges have NOT been laid Pre-Charge: 1. Make arrest without warrant 2. may be required to attend court by means of an appearance notice, a promise to appear or a recognizance (not exceeding $500, paid only by ) 3. s 495(2) for less serious offences, PO shouldnt necessarily use arrest powers. Provision indicates PO issue appearance notice instead, unless good reason not to. So, if officer decides NOT to arrest, then they may issue an appearance notice. 4. Even if PO has arrested, PO can decide afterward, under s 497(1), to release w/ the intention to compel appearance by means of a summons or appearance notice. 5. Officer in charge, under s 498, is also directed to prefer releasing (officer in charge has broader powers; can release with more restrictive conditions, including a recognizance) 6. The release provisions not mandatory - merely guidelines (i.e. an officer who fails to comply with the sections is still complying with their duty) 7. Note that before s first appearance an information must be laid before a justice: s 505 ii. Compelling appearance when charges have been laid Post-charge:

1. After the laying of the information is completed & endorsed, the justice will issue process in
the form of either a summons or a warrant for the arrest of

2. Summons = doc issued by the court commanding to attend court at a specified time &
place. Recites offence. Served in person or left w/ adult at s last known address.

3. Choice b/w summons or arrest warrant lies in the discretion of the justice.S 507(4), though,
directs the justice to issue a summons UNLESS there are reasonable grounds to believe that a warrant is necessary in the public interest. j. THE BAIL HEARING - Where arrested, must be released or given a bail hearing where it will be decided whether the individual should be released absolutely, subjected to conditions of release, or held in custody pending the trial i. General scheme: Release by justice 1. Assumption that accused should be released pending trial and with few restrictions as possible 2. s 515 directs that the justice shall order that the accused is released on an undertaking without conditions UNLESS the Crown shows cause as to why something more restrictive is justified 3. s 515(2): Where a judge doesnt order an outright release under s 515, he shall, UNLESS THE CROWN SHOWS CAUSE AS TO WHY DETENTION IS JUSTIFIED, release the accused w/ restrictions from (a)-(e) p. 162. A judge cannot make an order under (b) to (e) of s 515(2) unless prosecutor shows cause as to why an order under the immediately preceding paragraph would be inadequate. 4. s 514(4) (4.3): Set out various types of conditions that MAY or MUST be imposed when an order for release is made under s 515(2) [Objective is to ensure accused attends court or safety of community] 5. SUMMARY: If an order of release (without conditions) is not made by the judge (s 515), there are two options, each for which the Crown must show cause: (a) Show cause why detention is necessary (see below); (b) or if that fails, try and show cause as to why a more serious condition of release should be imposed. ii. General scheme: Crown seeking continued detention 1. s 515(1) specifies 3 grounds on which continued detention of an accused may be ordered: a. Detention necessary to ensure s attendance in court b. Detention necessary to ensure protection/safety of public c. Detention necessary in order to maintain confidence in the administration of justice, having regard to all the circumstances (e.g. apparent strength of prosecutions case, gravity of offence, circumstances surrounding commission of offence; et] (see R v Hall for test to apply) iii. Adjournment 1. Justice, on the application of Crown, can adjourn the bail hearing by up to 3 days w/o consent of : s 516 iv. Exceptions to the general bail scheme 1. s 515(6): Lists a number of types of indictable offences where shall be detained must show cause why he is to be released. If ordered to be released, any of the ordinary conditions apply. 2. s 469 offences: Justice must detain (p 885 of Code) murder, etc v. Reviewing order 1. Decision made by a justice concerning release or detention may be reviewed by a judge upon application of the accused or the prosecution: s 520/521 k. R v Hall: charged w/ murder woman in a high profile case. Applied for bail pending trial. Judge denied "to maintain confidence in the administration of justice" based on 515(10)(c). Appealed, stating that section violated right "not to be denied reasonable bail without just cause" under section 11(e) of the Charter. i. Function of para (c): To allow to be released into the community on bail in the face of a heinous crime and overwhelming evidence may erode the publics confidence in the administration of justice. Bail denial to maintain confidence in the administration of justice is not a mere catchall for cases where the first two grounds have failed. It represents a separate and distinct basis for bail denial not covered by the other two categories


ii. Para (c) is not unconstitutionally vague or overbroad: the ground based on maintaining confidence
in the administration of justice is more narrowly defined than the public interest standard in Morale. Judge must be satisfied that detention is not only advisable but necessary. At the end of the day, the judge can only deny bail if satisfied that in view of these factors and related circumstances, a reasonable member of the community would be satisfied that denial is necessary to maintain confidence in the administration of justice


GETTING READY FOR TRIAL: a. DISCLOSURE : A key right of the accused, and an important obligation on the Crown, is to make full disclosure of the fruits of the investigation to the accused b. Content of the right to disclosure i. Evidence, if relevant, must be disclosed by Crown, whether inculpatory or exculpatory ii. Evidence is relevant if it is of some use to the defence (R v Egger) iii. Disclosure must be made prior to election of trial method or plea iv. It is a continuing duty to disclose v. But the right isnt absolute e.g. need not produce privileged or irrelevant material vi. What if disclosure isnt made properly? R v Dixon set out a 3 part test for determining whether and, if so, what remedy would be available if there is unjustified non-disclosure (see p 207) 1. c. Conflicting protections: disclosure and privileged information i. (1) Information privilege; (2) Solicitor-client privilege; (3) Counselling records; d. R v Stinchcombe: Lawyer was charged with breach of trust, theft and fraud. Former secretary was a Crown witness at the prelim inquiry, where gave evidence favorable to the defense. After the preliminary inquiry but prior to trial, witness made a statement to RCMP. Defense counsel was informed of the existence but not of the content of the statements. His requests for disclosure were refused. During the trial defense counsel learned conclusively that the witness would not be called by the Crown and sought an order that the witness be called or that the Crown disclose the contents of the statements. Judge dismissed the application. convicted. i. RULE: Subject to the Crown's discretion, all relevant information must be disclosed, both that which the Crown intends to introduce into evidence and that which it does not, and whether the evidence is inculpatory or exculpatory. All statements obtained from persons who have provided relevant information to the authorities should be produced, even if they are not proposed as Crown witnesses. Where statements are not in existence, other information such as notes should be produced. If there are no notes, all information in the prosecution's possession relating to any relevant evidence the person could give should be supplied. ii. Crown counsel has a duty to respect the rules of privilege and to protect the identity of informers. A discretion must also be exercised with respect to the relevance of information. The Crown's discretion is reviewable by the trial judge, who should be guided by the general principle that information should not be withheld if there is a reasonable possibility that this will impair the right of the accused to make full answer and defence. iii. Absolute withholding of information which is relevant to the defence can only be justified on the basis of the existence of a legal privilege which excludes the information from disclosure. This privilege is reviewable, however, on the ground that it is not a reasonable limit on the right to make full answer and defence in a particular case. e. R v. McNeil: Police must disclose disciplinary records -requires the police to hand over records of the discipline and misconduct of its officers as part of its disclosure obligation to the defence in criminal proceedings. charged w/ possession of cocaine. PO witness on case also being charged w/ drug possession during the time of s trial. i. Under Stinchcombe, the Crowns first party disclosure obligation extends only to material relating to the accuseds case in the possession or control of the prosecuting Crown. Police have a duty to participate in the disclosure process. The necessary corollary to the Crowns disclosure duty under Stinchombe is the obligation of police to disclose to the Crown all material pertaining to its investigation of the accused. ii. Records relating to findings of serious misconduct by POs involved in the investigation against the properly fall within the scope of the first party disclosure package due to the Crown from police,


where the police misconduct is either related to the investigation, or the finding of misconduct could reasonably impact on the case against the accused. iii. The OConnor procedure provides a general mechanism at common law for ordering production of any record beyond the possession or control of the prosecuting Crown, and is not limited to cases where third party records attract a reasonable expectation of privacy 1. The first step in the OConnor procedure for production of documents in the possession of a third party is for the person seeking production to satisfy the court that the documents are likely relevant to the proceedings 2. Courts in balancing the competing interests at the second stage of an OConnor application will be to assess the true relevancy of the targeted record in the case against the accused. 3. A finding of true relevance puts the third party records in the same category for disclosure purposes as the fruits of the investigation against the accused in the hands of the prosecuting Crown under Stinchcombe . f. PRELIMINARY INQUIRY i. s 548 directs the justice or judge at the preliminary inquiry to commit the accused for trial on any indictable offence if the evidence in support of the charge is sufficient. It also requires the accused to be discharged (but this doesnt mean acquitted) if the evidence is insufficient. ii. But with direct indictments, less necessary and disclosure functions now more directly dealt with by Charter decisions requiring crown to disclose all relevant evidence. Now prelim only avail upon request of party (usu defence). Direct can allow prosecutor to prefer an indictment when accused doesnt have chance to request PI iii. Question to be asked by a preliminary inquiry judge (or under directed verdict) is whether there is any evidence upon which a reasonable trier of fact, properly instructed, could find the charge proved BRD (Arcuri) (no weighing usually) iv. Where Crown offers direct evidence on every element of offense, accused must be committed to trial- truth of evidence left to fact-finder. For circumstantial evidence, the judge is required to determine what reasonable inferences can be made from evidence- whether the evidence, IF BELIEVED, could reasonably support an inference of guilt. (Arcuri) v. Judge must consider whole of the evidence if the Crown relies on circumstantial evidence, judge must engage in limited weighing of the whole of the evidence, including defence evidence. vi. Committal - If meet standard then indictment drawn up and case proceeds. 1. If doesnt pass this stage AG can prefer an indictment. AG can bypass this preliminary inquire used in Bernardo. 2. Indictment can include any charge on which person was ordered to stand trial or any charge found on facts disclosed on preliminary indictment.

g. JURY SELECTION i. S471 of Code says that every indictable offense should be tried by judge and jury except where otherwise expressly provided for by law, but lots of opt-outs. Only a few indictable offenses (e.g. theft less than $5000) cant have jury. ii. No person can be disqualified based on sex. iii. 12 jurors, but can drop to 10 (s644). Alternates but cannot be substituted once evidence has been heard (s631). iv. Exemptions to Jury Duty personal interest in matter to be tried, relationship with counsel/accused/witnesses, personal hardship or other reasonable cause. v. Challenges for Cause Candidates presumed to be impartial counsel not allowed to ask any questions regarding challenge for cause w/o first satisfying judge that there is reason. 1. Four types of interest prejudice direct interest in trial (witness, accused), specific prejudice (attitudes about case), generic prejudice (stereotypical attitudes about accused, victims, witnesses), conformity prejudice (desire in community for expected outcome) 2. Two step challenge process: (1) counsel tells judge basis for challenge (must be realistic probability for partiality), (2) counsel permitted to ask questions to juror- sometimes only 12 predetermined questions


3. Williams evidence about widespread bias against aboriginals, lower ct held insufficient to
raise realistic potential of partiality, SC held this was setting bar too high. Signalled trial courts should leave door open towards challenges abt race. vi. Peremptory limited in number, 20 for first degree murder, 12 in cases of sentences for 5 yrs or more, 4 in all other cases. Accused can strike whoever he wants, debate on Crown ability (e.g. to produce all-female jury in sex assault case struck down in Bain). Crown cant use challenges to produce jury that appears impartial (like all female panel, but even this was upheld as being impartial), but not clear what this means. h. PRETRIAL MOTIONS i. Generally: In pre-trial applications counsel are attempting to set the parameters of the trial and, in doing so, are dealing with some of the most hotly contested issues in the case. These motions will determine matters ranging from when, and if, the trial will proceed to the nature of the evidence to be heard. ii. Some Pretrial Motions allowed by Code: Change of Venue, Particulars, Sever Counts. 1. Change of Venue: The applicant must establish on a balance of probabilities that an order for a change of venue is "expedient to the ends of justice." In jury trials, the defence brings most applications for a change of venue, where it is alleged that the accused cannot receive a fair and impartial trial in the community because of prejudicial pre-trial publicity. There must be strong evidence of a general prejudice attitude in the community as a whole. That prejudice must not be capable of being cured by safeguards in jury selection, by instructions from the TJ to the jury panel, or by rules of evidence (R. v. Suzack). 2. Fitness to Stand Trial: 3. Charter Motions Trial w/in a Reasonable Time: The time frame to be considered in analyzing a claim of unreasonable delay runs from the date the information was sworn to the estimated date for completion of the trial. When deciding whether s. 11(b) has been infringed, the trial judge is required to balance the factors developed by the SCC. The test developed in R. v. Askov, R. v. Smith, and set out in R. v. Morin for assessing whether there has been a violation of the s.11(b) Charter right to trial within a reasonable time is as follows: a. Length of the delay b. Waiver of time periods c. Reasons for the delay, including i. Inherent time requirements of the case ii. Actions of the accused iii. Actions of the Crown iv. Limits on institutional resources v. Other reasons for delay d. Prejudice to the accused VI. VERDICTS a. Jury Verdicts: See Jury section above. b. Judicial Verdicts: Where there has been a judge alone trial, the judge will render the verdict. The judge is obliged to give reasons for decision sufficient enough to know what to challenge on Appeal. If the accused is convicted, the judge will conduct a sentencing hearing. (p. 370-2) c. Double Jeopardy & Estoppel: Where a verdict has been rendered, the accused cannot be tried again for the same offence or for an offence based on the same factual allegations he has been acquitted or convicted of. Moreover, under the doctrine of issue estoppel the Crown is prevented from attempting in future proceedings from re-litigating factual issues that have already been decided against the Crown. d. R v. Mahalingan -Where raises issue estoppel, it is for to establish that the issue had been conclusively decided in his favor. Issue estoppel does not bar from leading evidence on any issue raised on a previous trial resulting in an acquittal, rather, it excludes only evidence inconsistent with determinations of issues resolved in s favor at a previous trial, on the basis of either a positive factual finding or a reasonable doubt. PRINCIPLES AND LAW RELATED TO SENTENCING



a. NOTE: Before beginning a sentencing question, first look at what offence for which the offender is being
sentenced: Is there a minimum sentence? Is there a maximum? These points will be important for the applicability of some of the sentences. b. GENERAL PRINCIPLES OF SENTENCING - Mostly codified in the Criminal Code: i. S 718: Lists purposes of sentencing, including denouncing unlawful conduct, deterrence, rehabilitation, reparation, the promotion of a sense of responsibility in the offender and acknowledgment of the harm caused to the victim and to the community ii. S 718.01: Where children victim of abuse and under 18, then primary consideration to denunciation and deterrence objectives iii. S 718.1: Sentence must be proportionate to gravity of offence & degree of responsibility of offender. iv. S 718.2: Other sentencing principles court MUST take into account: (a) Aggravating and mitigating factors (bias, hate), (b) All available sanctions should be considered other than imprisonment, with particular attention to circumstances of aboriginal offenders. v. S 718.3Degrees of Punishment Section describes the degree of punishment that may be imposed upon D, in the discretion of the court, and the circumstances under which cumulative punishments may be imposed. vi. S 719Commencement of Sentence Determines the commencement date of the sentence imposed up on a person convicted of an offence. Generally, they commence when it is imposed, except where there is a statutory provision to the contrary. The Court can take into account time in custody when sentencing. vii. No one sentencing objective trumps the others and the relative importance of any mitigating or aggravating factors will push a sentence up or down the scale of appropriate sentences for similar offences. R. v. Nasogaluak viii. R. v. Nasogaluak Charter violations allow reduced sentencing: Intoxicated driver, pulled over, cops beat him up to get him to comply. Pled guilty for drunk diving, at sentencing ct found that cops violated Charter s.7 and 11(d). As remedy, lower Ct. granted reduced sentence of conditional discharge, despite statutory minimum sentence. SC held ct could consider state actors conduct in developing sentence relating to offense- Section 718.2(a) of the Code provides that a court should reduce a sentence "to account for any relevant ... mitigating circumstances relating to the offence or the offender". But Ct usu couldnt order remedy below min sentence from Parliament- would be unlawful interference in role of Parliament. Even under s.24(1) of charter, departure from min not warranted, although possible in other circs. R v C.A.M (Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit) a. The accused pleaded guilty to numerous counts of sexual assault, arising from pattern of abuse inflicted upon his children over a number of years. None of the offences committed carried a penalty of life imprisonment. b. The Court of Appeal erred in applying as a principle of sentencing that fixed-term sentences under the Criminal Code ought to be capped at 20 years, absent special circumstances. c. Within the broad statutory maximum and minimum penalties defined for particular offences under the Code, trial judges enjoy a wide ambit of discretion under s. 717 in selecting a just and appropriate fixed-term sentence which adequately promotes the traditional goals of sentencing, subject only to the fundamental principle that the global sentence imposed should reflect the overall culpability of the offender and the circumstances of the offence d. The Court of Appeal erred in reducing the accused's sentence. Absent an error in principle, failure to consider a relevant factor or an overemphasis of the appropriate factors, a court of appeal should only intervene to vary a sentence imposed at trial if the sentence is demonstrably unfit. It was open to the sentencing judge to reasonably conclude that the particular blend of traditional sentencing goals required a sentence of 25 years in this instance R v Priest (Sets out sentencing principles re: (1) appropriate sentences where crime committed in an area of high incidence of the relevant crime; (2) first time offenders; (3) proportionality of sentences) a. Break and enter, w/out violence or vandalism, committed in an area of high incidence of the crime. b. The principles to be applied where there appears to be an unusually high incidence of a particular crime in the community have been set down by this court. It is ONE factor to take into account, and cant be determinative of the sentence.


c. The primary objectives in sentencing a first offender are individual deterrence and rehabilitation. Except
for very serious offences and offences involving violence, these objectives are not only paramount but best achieved by either a suspended sentence and probation, or a very short term of imprisonment followed by a term of probation. Court should consider all other dispositions before imposing a custodial sentence. S 718(c) instructs that separation of offenders from society is an appropriate objective of sentencing WHERE NECESSARY. S 718.2(d) directs that an offender should not be deprived of liberty if less restrictive sanctions may be appropriate in the circumstances. d. Proportionality is a fundamental principle of sentencing. The trial judge was required to give effect to these mitigating factors in imposing sentence on this appellant. e. R v Boucher ((1) Appropriate sentence for cases involving domestic violence; (2) Aggravating factor of planned and persistent conduct) - Attempted murder. 8 yrs to life is range of ct-approved sentences. a. Principles of denunciation and deterrence are of paramount significance in cases involving domestic violence b. While it is true that the complainant did not suffer any physical injuries, in the context of an attempted murder, the absence of physical injuries is a function of chance and does not necessarily justify a significant reduction in the range of sentence that is otherwise appropriate. Also in domestic relationship, likelihood of psychological trauma to victim arising from obsessive conduct is significant and justifies additional penalty. c. In addition to the aggravating feature of a domestic context, there is an additional aggravating factor present in this case that appears to have been present in some, but not all, of the authorities relied on by the Crown, namely, the planned and persistent nature of the respondents conduct. d. Despite the foregoing conclusions, I would not interfere at this time with the sentence that was imposed by the trial judge, other than to vary the period of probation from two years to three years. In all of the circumstances, I do not consider that it would be in the interests of justice to re-incarcerate the appellant at this time. e. Procedure ix. S. 720Sentencing Proceedings & Court Supervised Programs S. 720.1 requires sentencing to take place expeditiously once convicted x. S. 721Report by a Probation Officer S. 721(1) requires a probation officer to prepare a presentence report when ordered to do so by a court S. 721(3) sets out the matters that the report should address xi. S. 722Victim Impact Statement S. 722(1) requires the court to consider any statement prepared by a victim. xii. S. 723Submissions on the Facts Codifies the procedural aspects of the sentencing hearings. S. 723 says D and P can make submissions and they can call relevant evidence for the Court to use to make sentence xiii. S.724Information Accepted - Deals with fact finding for sentencing purposes. In general the provision allows the court to take as proved any information disclosed during the trial for sentencing. xiv. R v. BremnerContents of Victim Impact Statement. Cannot recommend sentence. Victim impact statements should not contain any recommendations for sentence, or use any psychiatric diagnostic terms. Victims are not permitted to have a role in suggesting the length or kind of sentence. Impact statements should describe the harm done to, or loss suffered by, the victim arising from the commission of the offence. The statements should not contain criticisms of the offender, assertions as the facts of the offence, or recommendations as to the severity of punishment. R v. Cromwell: Judge only need consider submissions for conditional sentence. While driving impaired, Cromwell was responsible for an accident that injured four people The sentencing judge considered the joint submission for a conditional sentence but found that it would not represent adequate deterrence, denunciation and protection of public, which was required in the circumstances of the offence. Where the agreed resolution is contrary to the public interest, would bring the administration of justice into disrepute or is otherwise unreasonable the judge retains the discretion to reject the joint submission. An unfit sentence is one that is clearly unreasonable. An unreasonable sentence is one falling outside the range (R. v. Shropshire). f. TYPES OF SENTENCES [a] Incarceration S 718(c): Imprisonment should be used where necessary (as pointed out in R v Priest) S 718.2(e): Imprisonment should be used as a sentence of last resort, particularly w/ Aboriginal offenders


s. 732Intermittent Sentence Court may order that a sentence of 90 days or less be served intermittently. They must consider the character of the D and the nature of their offence. They can also consider the availability of appropriate jail accommodation. s. 743Imprisonment Enacts a general punishment provision upon conviction of an indictable offence. It applies only where no punishment is specifically provided for an indictable offence. s. 743.1Imprisonment for more then 2 years. When Ds sentence consists, in whole or part by a term of imprisonment, this section generally determines the place of imprisonment - Imprisonment for more then 2 years must go to a penitentiary. If someone is sentenced to another crime after their 2 years in prison, the additional time (less then two years) must be served in a penitentiary. Sentences of less then 2 years go to prison. Persons under supervision who are sentenced for another crime committed during supervision serve their sentence in the penitentiary under s. 743.1(3.1) s. 745Imprisonment for Life Sets out sentence for life imprisonment, except for offenders under age of 18. High treason and first degree murder is imprisonment for life, without eligibility for parole for 25 years. Also if someone has previously been convicted of culpable homicide that is murder and then commits second degree murder, they get life. If person under age of 18 is convicted of first degree murder see s. 745.1 Second degree murder: sentence is imprisonment for life without eligibility for parole for 10 years, but does not serve more then 25 s. 718.3(4)Commencement of a Sentence - A sentence commences when it is imposed. To determine the sentence to be imposed the court can take into account any time D has spent in custody s 719(3), but any time they spent lawfully or unlawfully at large does not count. Tells you how to calculate time. It is also discretionary. Enhanced credit is available in exceptional circumstance (s. 719(3.1) [b] Conditional Sentence of Imprisonment

S 742.1: This section authorizes service of a sentence of imprisonment in the community in certain circumstances. Some offenders are excluded (e.g. those convicted of a serious personal injury offence: s 752, or an offence punishable by a minimum term of imprisonment). To impose this sentence, the following requirements must be met: (i) the sentence of imprisonment is imposed for less than 2 years; (ii) the service of the sentence in the community wouldnt endanger the safety of the community; (iii) the sentence would be consistent with the fundamental purpose and principles of sentencing S 742.3: Compulsory Conditions of Conditional Sentence Order - Sets out the compulsory conditions and optional

conditions of a conditional sentence order. Requires court to ensure D understand the order. Generally it says they must be peaceful and have good behavior and they must report to the court is required and report to a supervisor s. 742.6Procedure on Breach of Condition - Describes the procedure to be followed when dealing with alleged breaches of conditional sentence orders. When and how hearings are to be held and what type of evidence can be adduced
R v Proulx (This case establishes the following: (1) A conditional sentence, unlike probation, is aimed at both punitive AND rehabilitative aspects; probation is aimed at a rehabilitative sentence; (2) Sets out the process a judge must go through when imposing this sentence; (3) General principles re: conditional sentences) The accused entered guilty pleas to one count of dangerous driving causing death and one count of dangerous driving causing bodily harm (1) A conditional sentence should be distinguished from probationary measures. Probation is primarily a rehabilitative sentencing tool. By contrast, Parliament intended conditional sentences to include both punitive and rehabilitative aspects. Therefore, conditional sentences should generally include punitive conditions that are restrictive of the offender's liberty. Conditions such as house arrest should be the norm, not the exception (2) Section 742.1 of the Code lists four criteria that a court must consider before deciding to impose a conditional sentence: (1) the offender must be convicted of an offence that is not punishable by a minimum term of imprisonment; (2) the court must impose a term of imprisonment of less than two years; (3) the safety of the community would not be endangered by the


offender serving the sentence in the community; and (4) a conditional sentence would be consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. Interpreting the requirement that judge must impose a sentence of imprisonment of less than 2 years: (1) In a preliminary determination, the sentencing judge should reject a penitentiary term and probationary measures as inappropriate; (2) Having determined that the appropriate range of sentence is a term of imprisonment of less than two years, the judge should then consider whether it is appropriate for the offender to serve his or her sentence in the community. The requirement in s. 742.1(b) that the judge be satisfied that the safety of the community would not be endangered by the offender serving his or her sentence in the community is a condition precedent to the imposition of a conditional sentence. Two factors should be taken into account: (1) the risk of the offender re-offending; and (2) the gravity of the damage that could ensue in the event of re-offence Once the prerequisites of s. 742.1 are satisfied, the judge should give serious consideration to the possibility of a conditional sentence in all cases by examining whether a conditional sentence is consistent with the fundamental purpose and principles of sentencing set out in ss. 718 to 718.2. This follows from Parliaments clear message to the judiciary to reduce the use of incarceration as a sanction. A conditional sentence can provide significant denunciation and deterrence. As a general matter, the more serious the offence, the longer and more onerous the conditional sentence should be. There may be some circumstances, however, where the need for denunciation or deterrence is so pressing that incarceration will be the only suitable way in which to express society's condemnation of the offender's conduct or to deter similar conduct in the future (3) Generally, a conditional sentence will be better than incarceration at achieving the restorative objectives of rehabilitation, reparations to the victim and the community, and promotion of a sense of responsibility in the offender and acknowledgment of the harm done to the victim and the community A conditional sentence may be imposed even where there are aggravating circumstances, although the need for denunciation and deterrence will increase in these circumstances No party is under a burden of proof to establish that a conditional sentence is either appropriate or inappropriate in the circumstances. The judge should consider all relevant evidence [c] Probation and Community Service

S 731: If person convicted of an offence, having regard to the age and character of the offender, the nature of the offence and the circumstances surrounding the offence, a prohibition order may be made (a) if no minimum punishment is prescribed OR (b) in addition to fining or sentencing the offender to imprisonment for a term not exceeding 2 years S 731.1: Optional and mandatory conditions to be imposed R v Ziatas: Conditions imposed on probation must relate to deterrence of that offence. Facts: Charge of assault with intent to resist arrest. Judge imposed a fine of $150 and placed on probation for a term of one year. One of the conditions of the probation order was that should not operate a motor vehicle for the period of one year. Issue: Did the trial judge have the right to impose this condition as a term of the probation order? Held: No. Judge proceeded upon a wrong principle, inasmuch as he imposed this term of the probation order as an additional punishment to be imposed upon the accused, whereas his only power, was to impose such reasonable conditions as he considered desirable for securing the good conduct of the accused and for preventing the repetition by him of the same offence or the commission of other offences. [d] Fines: s 734 Imposition of a fine on D who is not an organization, for any offence other than the one for which

there is a minimum test of impairment. Fine may be in addition to any other sanction. Court must be satisfied under s. 734.2 that D is able to pay or discharge the fine. A term of imprisonment in default of payment is calculated under formula in s. 734(5) The fine can be taken out of money found in Ds possession at the time of their arrest s. 734(6).
[e] Absolute or Conditional discharge: s 730(1) *ADD* [f] Recognizance Orders - An information can be laid before a justice where a person fears that another person will cause harm to them, a partner, child etc. A justice, if satisfied on the evidence, can order that the defendant enter into a recognizance, with or without sureties, to keep the peace and be of good behaviour [g] Restitution S 738: Where an offender is convicted (or discharged), the court imposing sentence or discharging may, IN ADDITION TO ANY OTHER MEASURE imposed on the offender, order that the offender make restitution to another (and then the section


lists a number of scenarios where restitution can be ordered) (e.g. payments for damaged property; and payments to victim who suffered pecuniary loss as a result of psychological or bodily harm delivered by the convicted) [h] Victim Surcharges: s 737(1) Where D is convicted or discharged of an offence, a victim surcharge may be imposed upon him/her, in addition to any other punishment. Consideration is taken into account whether or not such a penalty would result in undue hardship to the convicted [i] Sentencing Aboriginal Offenders

S 718.2(e) requires that all available sanctions other than imprisonment be first considered with all offenders, with particular attention to the circumstances of aboriginal offenders R v Gladue Overreliance upon incarceration is a particular concern in the sentencing of aboriginal Canadians The provision may properly be seen as Parliaments direction to members of the judiciary to inquire into the causes of the problem and to endeavor to remedy it, to the extent that a remedy is possible through the sentencing process. The Court identified 2 unique circumstances of Aboriginal offenders: (1) The systemic factors which often play a part in bringing the specific offender before the courts; and - As a practical matter, the Court does not require each Aboriginal offender to provide the sentencing judge with a history of the discrimination faced by Aboriginal people in Canada. Rather, the Court states that judges must take judicial notice of these factors - It is important to note that the Court states that the provisions of s. 718.2. (e) apply to all Aboriginal offenders. It does not matter if the person is a status or non-status Indian, Metis or Inuit person - the section applies equally to all (para 90). Similarly, it does not matter if the person lives in an urban area and/or has been totally estranged from his or her culture - the section still must be applied. The provisions of the section must be applied in all cases where the offender identifies him or herself as an Aboriginal person and provides some evidence as to how their Aboriginal identity has had a part to play in understanding why they are before the court. (2) The types of sentencing approaches that might be appropriate to the offender because of his or her Aboriginal heritage - Restorative justice approach is relevant when sentencing aboriginal offenders - The Court broadly terms these approaches restorative justice approaches. It describes restorative justice as: an approach to remedying crime in which it is understood that all things are interrelated and that crime disrupts the harmony which existed prior to its occurrence, or at least which it is felt should exist. The appropriateness of a particular sanction is largely determined by the needs of the victims, and the community, as well as the offender. The focus is on the human beings closely affected by the crime - The Court makes it clear that a sentence that is intended to address restorative justice concerns should not be seen as necessarily lighter than a sentence of imprisonment. The Court also cites articles that suggest that in some circumstances, a restorative justice sentence might impose greater burdens on an offender than jail, particularly if there are probation terms incorporated into the sentence - Community-based sanctions coincide with the aboriginal concept of sentencing and the needs of aboriginal people and communities. It is often the case that neither aboriginal offenders nor their communities are well served by incarcerating offenders, particularly for less serious or non-violent offences. - The Court makes it clear that the fact that an offender is an Aboriginal person will not automatically result in a non-prison sentence. The Court also indicates that the more violent the offence, the more likely that the sentence will involve imprisonment, although the Court indicates that perhaps the term of imprisonment might be less in the case of an Aboriginal offender as opposed to a non-Aboriginal offender [k] Parole 743.6: Where an offender is sentenced to a term of 2 years of imprisonment or more on conviction of an offence set out in Schedule I or II that were prosecuted by way of indictment, the court may order that the portion of the sentence that must be served before the offender may be released on full parole is of the sentence, or ten years, whichever less (having regard to the circumstances of the offence, characteristics of the accused etc) VI. APPEALS


Appeals of indictable offences (a) Appeals by the accused - s 675(1)(a) lists the grounds of appeal - s 686(1)(a) lists grounds on which court of appeal can grant appeal: (i) verdict set aside b/c unreasonable or cannot be supported by the evidence; (ii) wrong decision on a question of law; (iii) on any ground that there is a miscarriage of justice - s 686(1)(b) (follows s 686(1)(a): this section sets out grounds on which an appeal can be dismissed (other than dismissing if none of the grounds for granting are made out) [See statute for how the sections in (a) relate] - It has been suggested that the underlying theory of s 686(1)(a) is miscarriages of justice (R v Morrisey) - See p 355 for options after granting appeal under s 686(1)(a) - Note: appeal can be in relation to sentencing too -Interim decisions not appealable but can be subject of judicial review applications where jurisdictional errors occur e.g. to challenge preliminary inquiry results, to seek or quash publication bans, or to suppress or access third party records. For PI, action for certiorari will only be granted if judge fell into jurix error (not sufficient to show error of law). E.g. If not evidence on essential element of charge for PI. Standard of review - Varies depending on ground of appeal - Pure questions of law, standard of review is correctness (so appellate court can substitute opinion); questions of fact should not be overturned in the absence of a palpable and overriding error; etc Unreasonable verdicts - Ask whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered (R v Yebes). Could the TJ have reached its conclusion on the evidence before it? - Works in judge or jury trials; harder in jury ones though - What about overturning decision if TJs reasoning process was unreasonable? Yes (Beaudry) Errors of law and miscarriages of justice - These are similar indeed they are all similar, in that miscarriage of justice underpins all of them - No requirement that verdict was not supported by evidence - An error of law is any decision that was erroneous interpretation or application of the law (R v Khan) (note that the curative provision applies to this ground) (e.g of error of law review: where there is a air of reality to a defence and TJ instructs jury there is no air of reality) - Miscarriage of justice can either be substantive or procedural (e.g. if the error at trial is one of mixed fact and law, e.g. ineffective legal counsel The curative provision - Section 686(1)(b)(iii) allows a court of appeal to dismiss an appeal despite an error of law provided no substantial wrong or miscarriage of justice has occurred - see test on p 362 Procedural irregularities (b) Appeal by Crown Questions of the Crime
1. 2. 3. 4. 5. 6. 7. 8. 9.

What does the Code say about the actus reus? Mens rea, strict liability, or absolute liability? Subjective or objective mens rea? Is this a situation of impossibility? An attempt? Is there a mistake of fact or law? Are there causation problems here? Are there Charter issues here? What does the jurisprudence say to those issues? Are there any defences that apply here?