Criminal Process CAN

TRU Law


Table of Contents

Introduction

Role of the Crown

Disclosure

Role of Defense Counsel – Guest Speaker

Judicial Interim Release

Pre-Trail Applications

Expert Notice and Evidence

Sentencing

Arraignment, Elections, Preliminary Hearing

Mentally Disordered Offenders

Introduction

Criminal Process in BC

1)Crime occurs Police Investigate: here the police have the option to “divert” the case, meaning they deal with it informally. If acc’d is arrested or issued a summons on scene, case goes to the Crown

2)Report to Crown Counsel package of information sent to Crown is called the “narrative”. It includes information on who, what, where, and how. It includes statements, notes, physical evidence (including pictures). The “narrative” becomes “the particulars” when charges are decided to be laid.

3)Crown to determine whether charges will be laid, determine the charges and whether to proceed summarily, hybrid or on indictment. The acc’d can either be in custody or not. Can apply for a warrant for arrest if released at scene.

4)If arrested Bail hearing.

5)Arraignment: plead guilty or not guilty. This is where continuances can be requested. If pleading guilty go straight to sentencing, if not go trial.

6)Trial Process – verdict, go to sentencing if guilty verdict.

7)Sentencing

8)Appeals

Levels of Court

1)Provincial Court

  1. Almost all criminal matters start off here. Provincial court is a statutory court not one of inherent jurisdiction. “Initial appearance court” – acc’d to get their particulars, a not guilty plea can be entered.
  2. Appearing before a JP: “your worship”, only a not guilty plea can be entered before him
  3. Then we fix a date or we plea guilty and fix a date for sentencing
  4. Appearing before a judge: trial and elections, or guilty pleas, preliminary, address judges as “your honour"

2)Supreme Court of British Columbia

  1. Guilty pleas on matters where it has to be in the supreme court or only supreme court judges have jurisdiction: like murder. Summary offences goes to supreme court of BC. Address here is “my lord” or “my lady”

Crowns:

1)Provincial Crown: employees of the ministry of justice. They are responsible for all criminal code offences and any provincial statutes like the Motor Vehicle Act. They are also responsible for certain environmental offences.

2)Federal Crown: Prosecuting federal statutes, except the criminal code. Such federal statutes include the Controlled Drugs and Substances Act, The Income Tax Act and certain other environmental offences.

3)Special Prosecutor: people hired by the AG or assistant AG where a charge concerns a governmental interest. Examples include conflicts of interest, government employees etc. These prosecutors start from Report to Crown Counsel, determining whether charges should be brought. These special prosecutors are not answerable to the AG.

Exception to provincial/federal split: “major-minor agreement”  which ever charge, federal or provincial, is the most significant, that crown is responsible for the file.

Example: Theft under 5000 and trafficking federal crown will prosecute, the theft is the minor charge while the trafficking is the major one.

Role of the Crown

The role of the Attorney General: prosecution of crimes Is vested in the AG. This dates back to English CL, which states it is the will of the sovereign to prosecute crime is vested in the AG by said sovereign.

  • AG is the chief legal advisor of the crown and the chief accusatorial officer for the Crown. Which means he/she is responsible for criminal prosecution.
  • Discretion is vested in this office: something more than a whim but below a feathered mandate.
  • This discretion has to be exercised in an independent and judicial manner.
  • While the AG is a member of cabinet, his/her role has to extend beyond this governmental role.
  • Shawcross Principle: Decision are informed by governmental policy but NOT directed by it. The cabinet cannot tell the AG exactly what to do but can tell him what policy they want.
  • Issue to consider: practically AG could lose cabinet position.
  • Solutions: vest power in a head of prosecution through delegation.

The Delegate: in BC the AG delegate is the Assistant Deputy Attorney General (ADAG)

  • Under s. 3 of the Crown Counsel Act: The ADAG is responsible for the administration of the branch and with carrying out the function and responsibilities of the branch. For certain charges approval of the AG is necessary, the ADAG is delegated this criminal purpose function.

Discretion: the AG maintains discretion despite the creation of the Branch. He/she can still give directions to institute charges but those directions must be in writing and be published in the Gazette in accordance with s. 5 of the Crown Counsel Act. S. 6 of the same act also indicated that the AG may also give the ADAG policy directions which may also have to be in writing and published in the Gazette.

Importance: The office of the AC is vested through an agency relationship with the AG. The agency allows individual Crown Counsel to act as “accusatorial officers” in respect to criminal proceedings.

The role of Crown Counsel: chief accusatorial officer of the AG. R. v. Boucher indicates the crown’s role as an advocate. Crown has a duty to act fairly, impartially, have no notions of winning or losing (due totunnel vision)

  • Quasi-judicial Nature: Kvello states that the AG’s role is not just to protect the public but exercise justice. As Krieger noted prosecutorial discretion is not reviewable by the courts.

Prosecutorial discretion:refers to the use of those powers thatconstitute the core of the Attorney General's officeand which are protected from the influence of improper political and other vitiating factors by the principle of independence. Krieger from Anderson

Scope of Procedural Discretion: Using Krieger again - principle of independence requires that the Attorney General "act independently of partisan concerns when supervising prosecutorial decisions" and how it "finds further form in the principle that courts will not interfere with his exercise of executive authority, as reflected in the prosecutorial decision-making process" - stressing independence. The definition in the case used (see above) and that one of the factors or example is whether a prosecution should brought is stressed and the discretion to accept a guilty plea to a lesser charge specifically mentioned.

  • Specific Acts under PD:all stages of criminal prosecution charge assessment, disclosure, trial, positions on application before and during trial, sentencing and on appeals. Commence prosecution, whether to proceed summarily or by indictment, to make a plea deal, to get out of a prosecution, taking over a private prosecution
  • The Core of Prosecutorial Discretion does not extend to how Crowns behave in court (Anderson)

While there cannot be an Exhaustive list the court in Anderson at para 44 said these fall under PD:

  • To repudiate plea agreement – Also in Nixon
  • To pursue a dangerous offender application
  • To prefer a direct indictment
  • The decision to charge multiple offences
  • To negotiate a plea deal
  • To proceed summarily or by indictment
  • Initiate appeal

This role of the prosecutor is quasi-judicial – and Kvello states that the AG’s role is not just to protect the public but exercise justice. As Krieger noted prosecutorial discretion is not reviewable by the courts, with certain exceptions

Exceptions to Prosecutorial Discretion:

  • Abuse of Process: where the crown does not make decision honestly and in good faith (Nixon and Krieger). Abuse of process doctrine is available where these is evidence that the Crown’s conduct is egregious and seriously compromises trail fairness or the intergrity of the justice system (Anderson)

Abuse of Power Test:whether "compelling an accused to stand trial would violate those fundamental principles of justice which underlie the community's sense of fair play and decency", or where the proceedings are "oppressive or vexatious"  R .v . Jewitt. Quoted in R. v. Nxon

Have to balance character of abuse of process, prejudice under this category of cases is better conceptualizes as an act tending to undermine society’s expectation of fairness in the administration of justice.

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Civil Law Exception: - Crown counsel are also not absolutely immune from civil actions for malicious prosecution. The tort allows for redress where a prosecutors acts maliciously in fraud of his or her prosecutorial duties with the result that the accused suffered damage (Kvello)

  • Malice is required: does not include recklessness, gross negligence or bad judgement. Malice in the form of improper purpose is the key to this. Only where the conduct of the prosecutor constitutes “an abuse of prosecutorial power” or the perpetuation of “fraud on the process of criminal justice” that malice can exist. (R. v. Proulx – quoted in Kvello v. Miazaga)
  • Note: high threshold.

In BC, the Policy Manual guides Prosecutorial Discretion: it provides greater transparency to the public on the crown’s exercise of discretion through a principled framework.

  • CHA 1: guides the exercise of prosecutorial discretion in the core decision of where or not to commence a prosecution but have to assess whether the test is satisfied and that allows the public to understand the framework of why charges are or not laid. Test:

1)These is a “substantial likelihood of conviction” (SLOC) and

2)It is in the “public interest to bring a prosecution”

Any decision made to benefit an accused must be informed by policy and the rule of law. Crown is not an advocate for change. Nor are the counsel for the police or victims.

  • Not agents of change: it is incompatible with policy nor the rule of law. This is because laws are enacted by parliament which represent the collective will of the populace. It is problematic to go against policy because:

1)The populace entrusts parliament, not civil servants, with enacting laws

2)The Populace expects that hone laws are duly enacted they will be followed; and

3)The populace expects that those entrusted by Parliament to uphold the lws that they entrust parliament

This doesn’t mean Crown cannot be a part of law developing but as civil servants Crown attorneys are bound to support the constitutionality of mandatory minimum sentences for instance because judges need both sides of the argument to engage with the law.

Disclosure

There is a duty to disclose relevant information to the defence. This is established at commonlaw. The Stinchcome disclosure regime extends only to material relating to the accused’s case in the possession or control of the prosecuting Crown entity.

Stinchcombe Analysis: The crown must produce upon request relevant information, which is not only

Exceptions: Privileged info, irrelevant, disclosure governed by law. Crown retains discretion in usual course in manner and time of disclosure.

REP: 2 assumptions:

1) Material in possession of the crown is material to acc’d’s defence.

2) Material will likely comprise the case against the accused.

  • Onus: on the crown
  • Police Duty: to provide crown with the fruits of the investigation. While police has a duty to investigate.

O’Connor Test (Third Party Disclosure):

1)Likely Relevancy: Demonstrate that the info contained in the records is likely relevant

  1. Not onerous burden on the accused, but significant burden. Likely Relevance means that there is a “reasonable possibility that the information is logically probative to an issue at trial or the competence of a witness to testify (O’Connor)

2)Inspection by the courts - balancing of competing interests at stake in the particular circumstances.

  1. Useful starting point is assessing relevance, this is where privacy issue should be assessed, as the amicus curiae argued. Relevance requires a contextual approach paying attention to issues like creation of record, who created record, context of the case etc.

Policy: The right to make full answer and defense is not so broad as to allow “fishing expeditions” into the lives of others. This third party evidence was used to play gender stereotypes and gain acquittals – victim of sex assault, would not disclose if knew it could be brought into court.

When 3rd party records can be compelled:

  • Only when the information cannot be gained by any other reasonable means
  • Protection that infringes upon a right of privacy should be limited as much as possible to satisfy the right to full answer and defense
  • Evidence must rest upon permissible chains of reason, rather than stereotypes
  • Probative value v. Prejudicial effect

Procedure for Third Party Disclosure:Subpoena – s. 700 of the CC  served on record holder, Crown and whoever else has a privacy interest in the record(s)

Article s. 700

(1) A subpoena shall require the person to whom it is directed to attend, at a time and place to be stated in the subpoena, to give evidence and, if required, to bring with him anything that he has in his possession or under his control relating to the subject-matter of the proceedings.

(2) A person who is served with a subpoena issued under this Part shall attend and shall remain in attendance throughout the proceedings unless he is executed by the presiding judge, justice or provincial court judge.

McNeil Form:indicate record /no record /no relevant record – for all officers involved. “no record” indicates the document is probably not relevant and doesn’t need to be disclosed.

For sexual offences third party information should be part of the police disclosure to crown only in certain circumstances where third party information is in some way related to the accused’s case. – here it was.

Crown Counsel Policy Manual – DIS 1

  • Crown Counsel must be fully cognizant of their legal obligation regarding disclosure to the acc’d under Stinchcombe v. The Queen. Full, frank and fair disclosure is essential to protect the constitutional right of an accused person to a fair trial.
  • Crown should err on the side of inclusion when determining whether information is relevant and must be disclosed to an acc’d.
  • Disclosure should be made in a timely manners so that the prosecution can proceed without delay.

Four Arguments Against Crown Disclosure (that fail):

  1. Would bog down the system: late disclosure means adjournments but full disclosure means more clarity – fact finding aspect of trial.
  1. Defense would “tailor” their evidence to meet the crown’s disclosure: it can happen but its rare.
  1. No reciprocal obligation on defense to disclose: Right to silence of the defendant. Sopinka says not valid reason for Crown not to disclose – evidence is not property of the crown but to property of the public to be used to ensure that justice is dealt with.
  1. Risk to safety and security of witness: informers – covered by informer privilege, can only be broken if innocence is at stake, but only way to prove is through ID of the informant. But issue comes up rarely, contact information and locations of witnesses are not revealed in court for safety reasons.

Key Reason of Disclosure: that it impedes the ability of the accused to make full answer and defense. Encourages resolution of matters on a timely basis.

Practical Point: in BC disclosure is made at first appearance and is ongoing, whether acc’d shows up with a lawyer or not, failure to disclose is reviewable by the court and the law society.

  • What is disclosed: copy of the charging document, information (summary) or the indictment (indictable), narrative of the circumstances (RTCC narrative, includes notes of police), criminal record and record of co-accused if applicable, tapes, video etc.
  • If no disclosure: adjournment, stay of proceedings for abuse of process (if it merits this)
  • Legitimate non-disclosure:
  • Redactions can have a V next to them
  • V1: names or personal information removed (birthdays, driver license – for ID theft)
  • V2: privileged information – very rare
  • V3: Delayed disclosure
  • V4: Irrelevant information

Section 278 Regime – deals with records

  • S. 278.1 – Definition of “record”: any form of record that contains personal information for which there is a reasonable expectation of privacy and includes, without limiting the generality of the foregoing, medical, psychiatric, therapeutic, counselling, education, employment, child welfare, adoption and social services records, personal journals and diaries, and records containing personal information the production or disclosure of which is protected by any other Act of Parliament or a provincial legislature, but does not include records made by persons responsible for the investigation or prosecution of the offence.
  • Very expansive!
  • S. 278.2 – Prohibits disclosure of records relating to complaints or witnesses to accused. This needs a court order or witness that the record is relevant. (1) replaces O’Connor for sexual offences – no record relating to the complainant or a witness shall be produced to an acc;d in any proceedings in respect of a list of offences – includes sexual offences. (2) can waive this and (3) notify accused that has record.
  • S. 278.3 – Application for production, (1)itmust be made to the trial judge. (2) application not to any judge or justice presiding at any other preceeding (3) applications must be in writing and provising sets out particulars to be included: (a) particulars of record sought and name of person whose in control (b) grounds of relevance (4) list of inssufficent relevant grounds – see code
  • S. 278.4 – Hearing in Camera

Preserving Evidence -

Duty to preserve evidence:Crown has to have a satisfactory explanation, the loss by police or crown cannot be an unacceptable negligent act. If it was a loss due unacceptable negligence then the accused’s s. 7 right to make a full answer and defense were violated.

  • No duty to preclude original documents if copies are available assuming can explain absence
  • Here a s. 7 breach can be found to be an abuse of process  the conduct leading to the destruction
  • Remedy: stay only if rare case set out in O’Connor…clearest of cases: if can’t have fair trial then stay is appropriate
  • Through a balancing of prejudicial effect and probative value – a stay may still be appropriate
  • Onus on the Crown

Timing Issue: the application should be heard at the end of the trial, cannot in a vacuum determine that lost evidence would have made a major impact.

O’Connor: stay of proceedings is a last resort, it is to be taken when all other acceptable avenues of protecting the accused’s right to full answer and defense are exhausted. The prejudice of the accused. s. 7 right is very high so that the accused cannot make a full answer and defense.

(1)the prejudice caused by the abuse in question will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome; and