Spring 2011 Professor Colleen Smith

Criminal Procedure

Spring 2011 – Professor Colleen Smith

Patricia O’Neil

Roles of Police, Crown & Defence

Role of the Police

Role of the Crown

Role of Defence Counsel

Types of Offences

How To Determine Type of Offence

Summary Offences

Hybrid Offences (watch for s. 553 offences!)

Indictable Offences (watch for s. 469 and 553 offences!)

Crown Elections – Factors to Consider

Police Investigatorial Powers

Questioning

Detention

Arrest

Interrogation

Search & Seizure - Principles

Warrants

Wiretaps

Warrantless Searches

Authorized Commission of Offences

Sealing Orders

Detention & Return of Exhibits

Charge Approval

Basics & Rationales of Charge Approval Process

Test for Assessing & Approving Charges

Charge Approval Options

Commencing Proceedings – Laying Charges

Swearing an Information

Contents of an Information

Compelling Attendance of Accused at Court

If Accused Has Not Been Arrested

Arrest Warrants

If Accused Has Been Arrested

Judicial Interim Release

Possible Orders

Counsel’s Role in Bail:

Possible Conditions

Grounds Supporting Detention

Reverse Onus Situations

S. 469 Offences (Murder Bail)

Bail Breaches

Bail Review

Publication Bans

Evidence

Arraignment & Case Management Prior to Trial

Administrative Issues (Judge Quinn lecture)

Criminal Case Flow Management Rules

Disclosure

Plea Negotiations

Withdrawal of Charges & Stay of Proceedings

Appearance of Accused

Appearance of Crown

Adjournments

Electing Mode of Trial

When Election Available

Defence Elections - Considerations

Deemed Elections

Re-Elections

Preliminary Inquiries

When Preliminary Inquiry Available

When Preliminary Inquiry Will Be Held

Why Choose a Preliminary Inquiry?

Preliminary Inquiry Process

Powers of Preliminary Inquiry Judge

Test for Committal to Stand Trial

Pre-Trial Applications (General)

Preferring the Indictment

Pre-Trial Conferences

Considering Whether & When To Bring Application

Conduct of Counsel on Applications

Disclosure Applications

First Party / Stinchcombe Application

Third Party O’Connor Application

Third Party Mills Application

Youth Records

Unsealing Orders

Procedural Applications

Joinder

Severance

Change of Venue

Recusal

Removal of Counsel

Application to Quash Indictment/Information

Charter Applications and Remedies

Charter Remedies

Challenging Constitutionality of Legislation

Applications to Exclude Evidence Under S. 24(2)

Voir Dires / Evidentiary Applications

When Application Is Pre-Condition To Admissibility of Evidence

When There is an Objection to Admissibility

Constraints on Availability of Voir Dire

Procedure

Blended Voir Dires

Admitting Voir Dire Evidence at Trial

Residual Discretion to Exclude

The Mega Trial Phenomenon

Jury Selection

Creating Jury Array

Selecting Individual Jurors

Challenges for Cause

Peremptory Challenges

Alternates

Running Out of People in Array

Mistakes in Process

Jury Trial Procedure

Arraignment & Re-Arraignment of Accused

Sequence of Trial

Jury Deliberations

Verdict

Issues With Jurors During Trial

Mistrial Applications

Publication Ban During Jury Trial

Jury’s Duty of Non-Disclosure

Getting Witness Evidence Before the Court

Compelling Witness Attendance

Evidence by Video or Audio Appearance

Witness Accommodations

Competence, Capacity & Compellability

Refusal to Testify / Contempt Proceeding

Using Preliminary Inquiry Evidence

Video Statement If Under 18 or Has Disability

Sentencing

Guilty Plea

Maximums, Minimums & Sentencing Ranges

Purpose & Principles of Sentencing

Aggravating & Mitigating Factors

Sentencing Options

Sentencing Hearing

Specific Issues During Sentencing

Ancillary Orders

Parole Ineligibility  743.6

Breaching Probation

Breach Charge

Revoking Suspended Sentence or Conditional Discharge

Breaching Conditional Sentence Order

Breach Charge

Effect of Finding Breach

Offence Act

Youth Criminal Justice Act

Guiding Principles

Procedural Differences

Sentencing Differences

Sentencing principles contained in ss. 3, 38 & 39

Practice Differences

Mentally Disordered Offenders

Purpose

Fitness

Automatism

Mental Disorder Verdict

Appeals

Review Board Hearing

Dangerous & Long-Term Offenders

Purpose of Dangerous Offender / Long-Term Offender Designation

Effect of Designation

Procedure for Dangerous Offender / Long-Term Offender Designation & Sentencing

Appeals

Review & Amendment of Indeterminate Sentences / Supervision Orders

Breaches of Long-Term Supervision Orders

Criminal Appeals

Appeal Considerations

Appeal Regimes

Powers of Appeal Court

Further Appeals

Appointment of Appellate Counsel

Roles of Police, Crown & Defence

Role of the Police

Investigate offences (see section on Police Investigatorial Powers)
Question, detain, arrest, interrogate, search & seize evidence
Decide whether to release and/or recommend charges
Manage witnesses and evidence

Role of the Crown

Crown Counsel Act:

S. 2  approve & conduct all prosecutions & appeals of offences, advise gov’t on criminal law, develop policies for administration of criminal justice, liaise with media & public
Ss. 4, 5, 6, 7  assessment of merits of prosecution done independently from political and police branches

Regan, Boucher

Crown has overriding duty of fairness (Crown as “Minister of Justice”)
Goal is not to obtain conviction; not concerned with winning or losing
Must lay before a jury credible evidence relevant to what is alleged to be a crime
Duty to see that all available legal proof of the facts is presented
Prosecution should be pressed to its legitimate strength but should be done fairly

Miazga v. Kvello Estate

Prosecutorial discretion includes:
Whether to prosecute charge laid by police
Whether to enter stay of proceedings
Whether to accept guilty plea to lesser crime
Whether to withdraw criminal proceedings altogether
Whether to take control of private prosecutions
Discretionary decisions immune from judicial review unless abuse of process
Independence of AG is fundamental to integrity of criminal justice system

Professional Conduct Handbook (duty of fairness)

R 8(18)  prosecutor’s duty is not to seek a conviction but to see that justice is done
should make timely disclosure to defence of all facts & known witnesses whether tending to show guilt or innocence, or would affect punishment of accused
should not do anything that might prevent accused from being represented by counsel or from communicating with counsel

Other Roles & Functions (from class notes)

Advise police on legal issues re: investigation (e.g. wiretaps, search warrants)
Advise police re: further investigation needed to improve likelihood of conviction
Approves charges recommended by police (see below)
May overrule police in public interest on bail issues
Conduct discussions with defence counsel re: resolution, how to proceed
Manage witnesses (has duties to victim under Victims of Crime Act, ss. 4-6)

Role of Defence Counsel

Professional Conduct Handbook (officer of court vs. role as advocate)

R 1(1-6)  lawyer has duties to state (no assisting crime), court (no misleading court), other lawyers (no sharp practice), public
R 1(3)(5)  lawyer has duty to do everything legitimately and ethically possible to promote client’s interests (“by all fair and honourable means”)
R 1(3)(6) lawyer has right to undertake defence of accused person regardless of lawyer’s personal opinion re: guilt; lawyer is bound to present by all fair and honourable means every defence that the law of the land permits in order that no person is convicted except by due process of law

Other Roles & Functions (from class notes)

Advise accused throughout re: legal rights, jeopardy, options, best course of action
Influence police decision-making:
Alternative explanations of conduct, alternative guilty parties
Alibi or other defences
Mitigating or compassionate circumstances
Influence Crown decision-making:
No charge
Recognizance
Alternative measures
Lesser charge or fewer charges
Reduced initial sentencing position
Different facts or mitigating / exculpatory admissions

Types of Offences

How To Determine Type of Offence

Look to the punishment section in the CC:
If punishable only by summary conviction  summary offence
If punishable only by indictment  indictable offence
If punishable by both  hybrid offence
Some punishment sections are in the same section as the offence definition, some are not (e.g. theft defined in s. 322, punishment in s. 334)

Summary Offences

Typically “less serious” offences, including all provincial offences
6 month limitation period for laying charges  s. 786(2)
Commenced by laying an information  s. 788
No Crown or defence election
Tried by PCJ  s. 785
Punishment is $5000 or 6 months in jail unless CC specifies  s. 787
Appealed to BCSC

Hybrid Offences (watch for s. 553 offences!)

Crown may elect to proceed summarily or by indictment
If proceeding summarily, same procedure as summary offences
If proceeding by indictment, check if Absolute Jurisdiction offence  s. 553
If yes, NO defence election, no prelim, trial by PCJ  s. 536(1) & (2)
If no, defence may elect PCJ, SCJ+J, or SCJ alone  s. 536(2)
NO prelim if elects PCJ  s. 536(3)
MAYBE prelim if elects SCJ+J or SCJ alone, depends on whether Crown or defence requests one  will be held in provincial court
If proceeding summarily, appealed to BCSC
If proceeding by indictment, appealed to BCCA

Indictable Offences (watch for s. 469 and 553 offences!)

Typically the more serious offences, including murder
Check if Absolute Jurisdiction offence  s. 533 (often the “vice” offences e.g. bawdy house)
If yes, NO defence election, no prelim, trial by PCJ  s. 536(1) & (2)
If no, defence may elect PCJ, SCJ+J, or SCJ alone  s. 536(2)
NO prelim if elects PCJ  s. 536(3)
MAYBE prelim if elects SCJ+J or SCJ alone, depends on whether Crown or defence requests one  will be held in provincial court
Check if s. 469 offence (murder, treason, piracy, alarming Her Majesty)
If yes, NO defence election, default is SCJ +J unless Crown and accused both consent to trial without jury
If no, defence may elect PCJ, SCJ+J, or SCJ alone  s. 536(2)
NO prelim if elects PCJ  s. 536(3)
MAYBE prelim if elects SCJ +J or SCJ alone, depends on whether Crown or defence requests one  will be held in provincial court
Crown may proceed by direct indictment with consent of AG or judge’s order  s. 577
NO defence election, deemed SCJ +J w/o prelim  s. 565(2)
But accused can re-elect SCJ  s. 565(3) (Crown consent needed if s. 469)
Appealed to BCCA

Crown Elections – Factors to Consider

Generally, Crown will proceed summarily if doing so would allow for an adequate sentence in the circumstances
Proceeding summarily when has several advantages:
Cheaper
Faster
Easier on victims (no jury, less formal, testify once)
However, proceeding summarily also has disadvantages:
6 month limitation period for laying charges (query whether it is ethical for Crown to proceed by indictment for the sole reason of getting around the limitation period)
Sentence limitation (although the maximum sentence of some summary offences have been increasing in recent years)
Crown may elect direct indictment to avoid a preliminary inquiry, particularly if Crown witnesses are old or fragile or defence is delaying

Police Investigatorial Powers

Questioning

Police generally always have right to ask questions (Kay)
People generally don’t have obligation to answer, or even to listen unless detained

Detention

Police have power to detain short of arrest in certain circumstances
Detention must not be arbitrary  Charter s. 9
Detention triggers ss. 10(a) & 10(b) Charter rights
Types of detention include:
Investigatorial detention (Mann)
Random roadside stops  must be for valid motor vehicle purposes
Roadblocks

Arrest

Civilian Arrests

Anyone may arrest a person if  s. 494(1) & (2):
Finds that person committing an indictable offence
Hybrids are indictable per Interpretation Act
Reasonable grounds to believe that person has committed a criminal offence and has freshly escaped from and is being pursued by authorities with lawful power to arrest
Owner of property (or in lawful possession of property) and offence occurs on or relates to the property
Must forthwith deliver person to the police  s. 494(3)

Police Arrests

Police may arrest a person if  s. 495(1):
Finds that person committing any offence
Reasonable grounds to believe that person has committed or is about to commit an indictable offence
Reasonable grounds to believe that the person is the subject of a Criminal Code warrant currently in force within that territorial jurisdiction
However, police shall not arrest if  s. 495(2):
It is a summary, hybrid or s. 553 offence, AND
Reasonable grounds to believe that arrest is not necessary in the public interest (i.e. to establish identity, preserve evidence, and prevent repetition / continuation of offence, AND
Reasonable grounds to believe that arrest is not necessary to ensure attendance at court

Interrogation

Police are entitled to attempt to obtain statement from detainee
Detainee does not have right to have counsel present while questioned
Police interrogation techniques may offend s. 7 Charter right to silence or common law confessions rule (see voir dire and Charter applications below)

Search & Seizure - Principles

Search:

An examination by an agent of the state which constitutes an intrusion upon an individual’s reasonable privacy interest (Evans)

Seizure:

Non-consensual taking by state officials of an item in which a person has a reasonable expectation of privacy (Borden)

Privacy:

Whether reasonable expectation of privacy exists depends on the circumstances
Accused must have subjective expectation & it must be objectively reasonable
Consider whether subject matter was in plain view, or abandoned, or in 3rd party hands
Also distinguish between territorial, informational and personal privacy (Patrick)
Territorial privacy:
Consider whether accused present at time of search, who owns or possesses the property or place searched, whether the accused has the ability to regulate access (Belnavis)
Informational privacy:
Consider whether highly personal or confidential information, who is the custodian of the information, who controls the repository
Personal privacy:
Consider the degree of physical intrusion, whether the technique was itself objectively unreasonable

Charter s. 8:

S. 8 protects reasonable expectations of privacy (Hunter v. Southam)
Where prior authorization is feasible, it is a pre-condition to a valid search & seizure
Warrantless searches are presumptively unreasonable
Even if prior authorization granted, search must be conducted in reasonable manner
Law that authorized the search must itself be also reasonable