Table of Contents
Criminal Procedure: Key Policy Considerations 1
Charge Approval 1
The Indictment 3
Bail and Counsel 7
Obtaining Counsel 9
Disclosure 10
Severance 12
Rulings 14
Powers of Search and Arrest 15
Classes of Offences 18
Juries: Role of the Trial Judge 19
Juries: Closing Addresses 20
Unreasonable Delay 20
Powers of Appellate Courts 21
Errors of Fact and Law 22
Reversible Errors 22
Miscarriage of Justice 23
Unreasonable Verdict 25
Criminal Procedure: Key Policy Considerations
§ Substantive laws of high quality are of no use if there is not a fair process by which those laws are applied.
§ Key policy balance: on one hand, the accused must have a fair trial and the standard of proof must be high; on the other. Society has an interest in efficiently and effectively punishing wrongdoers.
Charge Approval
§ Who makes the charge approval decision?
o In many jurisdictions, the police decide whether or not to lay charges. Crown counsel then has the discretion to withdraw or continue.
o In BC, the Crown decides whether or not to lay criminal charges.
§ What is the standard upon which the charge-approval decision is made?
o Ontario uses “reasonable prospect of conviction”, which is seen as controversial (i.e., shouldn’t be proceeding if prospect is only “reasonable”)
o In BC, there are two elements to the charge-approval process. The second step is only considered once the first step is satisfied:
§ (1) Evidentiary element: Crown can only lay charges if there is a “substantial likelihood of conviction.”
· There must be a “strong, solid case of substance”.
· In exceptional cases where there is a large public safety risk, the evidentiary standard is lowered to one of a reasonable prospect of conviction.
§ (2) Public interest element: is a prosecution required in the public interest?
· Numerous factors considered at this stage, discussed in the Cowper report. Generally in the public interest to proceed when:
o Allegations are serious
o Considerable harm was caused
o A weapon was used
o The victim was vulnerable
o Evidence of pre-meditation
o Victim was a vulnerable person
· Some factors weigh against proceeding:
o Conviction likely to result in very small penalty
o Loss or harm was minor
o Alternative measures would be sufficient
§ This requirement to meet this two-part test is ongoing throughout the prosecution.
· E.g., if it becomes apparent at the preliminary hearing that the threshold is no longer met, the charges must be dropped.
§ Can the Crown’s decision to approve charges be challenged?
o The defence may choose to make certain disclosures or submissions to the Crown before charges are laid. These submissions could potentially lead to a withdrawal or reduction of charges.
o The Crown’s charging decision is a part of the Crown’s core discretion and, for this reason, it is insulated from review.
R v Nixon (2011) SCC Acts of core prosecutorial discretion include all decisions re: whether to prosecute and on what basis. Prosecutorial discretion only reviewable for abuse of process under section 7 (two branches).
F: D charged with dangerous and impaired driving causing death, entered into a plea agreement with Crown. Crown later repudiated the plea agreement. D applies under s. 7, alleging abuse of process and seeking direction requiring Crown to complete agreement.
I: Is the Crown’s decision to repudiate a matter of prosecutorial discretion, or is it a matter of “tactics or conduct before the court”?
A: Prosecutorial discretion involves all decisions that pertain to whether a prosecution should be brought and what the prosecution ought to be for. Conduct and tactics before the court do not fall within this range. Decision to repudiate falls within core prosecutorial discretion and is only reviewable for abuse of process. Two categories of abuse of process under section 7:
§ (1) Prosecutorial conduct affecting the fairness of the trial
§ (2) Prosecutorial conduct that “contravenes fundamental notions of justice/undermines the integrity of the judicial process.”
o Under either branch, a stay of proceedings will only be granted when (a) the prejudice to the accused will be aggravated by the trial and (b) no other remedy is reasonably capable of removing the prejudice.
§ *Courts will only review prosecutorial conduct if the accused has established a proper evidentiary foundation. Repudiation of plea agreement will always meet this threshold.
§ *Decisions that do not go to the nature and extent of the prosecution (e.g., decisions re tactics or conduct before the court) do not fall within the scope of prosecutorial discretion; rather, they are governed by the inherent jurisdiction of the trial court to control its own process.
R v Reyat (2002) BCSC Internal Crown documents that relate to the exercise of prosecutorial discretion will only be released if the accused establishes a “real and substantial possibility of bad faith or improper motives on part of Crown” (Murin).
F: Crown sought to bring new charges against Reyat re: Air India bombings. Reyat wants internal Crown documents re: charges.
I: What is the standard to be applied when the accused is seeking disclosure of internal Crown documents relating to the exercise of prosecutorial discretion?
A: If the accused is to be granted access to Crown documents that relate to exercises of prosecutorial discretion, he must first meet the Murin standard.
§ If the defence meets the Murin standard, they must still meet the Nixon threshold before they will be granted a stay of proceeings.
The Indictment
§ The charging sheet (called either the “information” or the “indictment”) must set out the section of the code under which the accused is charged as well as the particulars, which are the specific acts of the accused that led to the charges.
§ The accused must have a clear understanding of the charges that they are facing. Providing the accused with only the Code section would not constitute reasonable notice.
§ The indictment must contain “sufficient detail of the circumstances of the alleged offence to give the accused reasonable information with respect to the act or omission to be proved against him and to identify the transaction referred to.” (RG).
§ The Crown must prove every element of the offence as particularized in the indictment beyond a reasonable doubt.
R v Saunders (1990) SCC The Crown must prove the offence as particularized;
F: Accused charged with importing narcotics, “to wit, heroin”. In the course of the trial, it became clear that the accused was part of a cocaine conspiracy, not heroin.
I: Does the Crown have to prove that heroin was the trafficked drug, or will any narcotic suffice?
A: Accused persons must be reasonably informed of the allegations against them; The Crown chose to specify heroin on the indictment and it must prove that offence.
Criminal Code Provisions re: the indictment
§ Section 581(1): each count in an indictment shall apply to a single transaction.
§ Section 581(3): each count shall contain sufficient detail of the circumstances of the alleged offence to give the accused reasonable information with respect to the act/omission to be proved against him.
§ Section 587(1): a court may order the prosecutor to furnish particulars of an offence, where it is necessary for a fair trial.
§ Section 662: authorizes convictions for “lesser included” offences in three situations:
o Included by statute
o Necessarily included (e.g., assault in sexual assault)
o As described by the wording of the indictment
Exceptions to the Rule that the Crown must prove the offence as particularized
§ The first exception is the common law rule of “surplusage”, of which JBM is a clear case.
§ There is a certain amount of ambiguity over the relationship between surplus, amendment and the general rule that the Crown must prove the offence as particularized.
§ A court has the power to change the indictment at any time, including during the trial and on appeal. As with surplus, the amendment will not be made if the accused’s case will be prejudiced.
o Code section 601(3) gives a discretionary power to a trial judge to permit amendments to the charging document.
o Section 601(4) lists a number of factors that the court must consider when considering whether or not an amendment should be made, including:
§ Whether the accused has been mislead or prejudiced in his defence by any variance, error, or omission
§ Whether the amendment can be made without injustice being done
o Section 683(1)(g) gives similar amending powers to the court of appeal.
R v JBM (2000) MBCA Immaterial or non-essential parts of an indictment need not be proved if no prejudice results to the accused [“surplusage rule”].
F: D charged with sexual assault as being “in a position of trust or authority towards a young person in a relationship of dependency.” D argues that Crown has not proven relationship was one of dependency.
I: Must the Crown prove that the relationship was one of dependency?
A: If the Crown proves that the accused was in a position of trust or authority it is not required to prove that there was also a relationship of dependency. The words are “surplus” to the indictment.
*The surplusage rule is subject to a prejudice analysis: given the original wording of the indictment, would declaring this part “surplus” impair the accused’s ability to answer the charge?
§ In Saunders, the defence was built around heroin charges, not cocaine charges, which is a major difference.
R v Irwin (1998) ONCA Appeal courts can make any amendment to a charge –including material changes to the charge, substituting new charges, and adding additional charges – so long as the accused will not be mislead or prejudiced in his defence or appeal.
F: D was in a fight on a patio, injured third party, charged with assault against third party (req’d transferred intent). Would have been better to charge with unlawfully causing bodily harm.
I: Can the court amend the indictment on appeal to unlawfully causing bodily harm?
L: Code 683(1)(g): court of appeal may amend indictment unless the accused has been mislead or prejudiced in his defence or appeal.
A: If the accused will be prejudiced, no amendment can be made. Charges can be amended to conform with the evidence or substituted with other charges, so long as the accused’s case is not prejudiced. In this case, the conduct of the defence would have been no different, so the amendment should be allowed.
*Key question (re: prejudice): would the defence have been different?
R v Harris (2014) BCSC When a pre-trial amendment of the indictment causes an accused to lose the benefit of certain strategic decisions, the amendment will be allowed unless the defence can show that such a loss is prejudicial to a full defence. Amendments that seek to bring the charge in-line with the evidence shall be made after the evidence is heard.
F: D charged with possession of prohibited weapon, whereas the handgun in question is a restricted weapon. Crown noticed this error and sought pre-trial amendment under s. 601 (adjourned on the first day of trial). D argues that several tactical decisions were made on the basis of this error (of which they were aware).
I: Should the amendment be permitted?
A: While the defence has lost an argument hoped to be available, the defence has not been mislead or prejudiced. The amendment should only be made after the evidence is called, under the 601 powers to amend charges to conform to the evidence.
*Harris thinks that there is more to be said on this point. There may be certain situations in which, given certain pre-trial decisions that have been made, an amendment would materially prejudice the accused’s case.
R v Moore (2012) ONCA In some cases, “particulars” of the charge are inserted to give the accused notice of the potential penalty; this does not alter the Crown’s burden to prove the essential elements of the offence.
F: Charged with robbery “while armed with a firearm”. Trial judge was not satisfied beyond a reasonable doubt that D had a firearm during the robbery, so she acquitted.
I: Was the trial judge right to acquit?
A: Court says that the purpose of including the firearm language was to put the respondent on notice that, if convicted, minimum sentence would be applicable. Crown charged robbery under 343, and could succeed by proving any of the four definitions of that offence (violent theft). Proof of the use of a firearm is not an essential element of the offence, and therefore the trial judge was wrong to acquit.
Lesser Included Offences
§ Section 662 allows accused persons to be convicted of “included offences”, even if the Crown has not proven the full offence charged. There are three categories of included offences under 662:
§ Offences included by statute
o 662(2)- (6)
o Attempts are always included (660)
o Second degree murder within first; manslaughter within murder
§ Offences necessarily included
o Assault included within sexual assault
o If it is possible to commit the whole offence without committing the lesser, then the lesser is not included.
§ Offences that are included by virtue of the wording of the charge
o Wording must be sufficient to give the accused notice
§ The first two categories will always meet the “fair notice” test because an indictment gives notice of all crimes necessarily included in the commission of the charged crime.
R v R(G) (2005) SCC Accused persons can only be convicted of “lesser included offences” if such offences are included by statute, necessity, or by the clear wording of the charge. Sexual assault not necessarily included in incest, nor included by statute or wording of offence.
F: D acquitted of incest charges, Crown argues that D is guilty of the “lesser included offence” of sexual assault. [Incest requires intercourse, which was not proven].
I: Can the accused be convicted of a charge they were not faced with?
A: Accused persons can be convicted of lesser included offences, but only one of three requirements in 662 met. In this case, it cannot be said that sexual assault is necessarily included in incest, nor is it included by statute or by the wording of the charge.