The Adversarial ProcessAt trial the Crown must prove the specific allegation made in the charge BRD (charge= information or indictment).

Pleass606 CC. Guilty, not guilty or special plea (s607 CC:autrfois acquit, autrefois convict or pardon), also s611 justification to charge of defamatory libel

Special pleas – ie matter has already been dealt with

guilty plea – admission by the acused, effectively a waiver of the right to trial *court should inquire into the plea if there is any reason to doubt the accused understands its effect. While the court is not generally obligated to do this, in the case of young offenders a judge must be satisfied the facts will support a charge before accepting guilty plea, per s36 Youth Criminal Justice Act).

not guilty – not claiming innocence, but demanding that the Crown prove all the elements of the offence and disprove the existence of any defences. This plea puts any available defence into play (unless special plea is required).

Refusal to enter a plea – judge must enter a plea of not guilty, s606(2).W/ Crown's consent accused can plea guilty to some other offence arising out of the same transaction whether or not it is included in the offence being chaged.

Valid guilty plea = voluntary unequivocal based on sufft info re nature of charges and conseq of plea

Guilty plea can be w/d if valid grounds for permission. W/d not avail when : -judge rejects joint sentencing submission because co-accused has been acquitted-when Crown subsequently makes application for accused to be declared a dangerous offender

W/d of guilty plea requires some special circumstance that guilty plea should not be accepted at face value as a legitimate concession of guilt.eg. accused was pressured by counsel to enter a guilty plea.OR accused wished to plead not guilty but plead guilty to obtain immediate fine and avoid being held in custody until trial, or to avoid a more serious charge (eg. 1st as opp to 2nd degree murder)

Taillefer – accused received disclosure of evidence 4 yrs after guilty plea, Court held even valid guilty plea coud be w/d if Acc's Constitutional rights violated.Test for w/d of guilty plea after disclosure of (previously undisclosed) evidence : how would a reasonable person have behaved w/ the knowl. of the undiscl evidence?If: realistic possibillity they would have run the risk of trial, leave must be given to w/d the plea.

Judge can but has no obligation to hear evidence after a guilty plea. If it comes about that the accused did not intend to plead guilty (either in whole or in part) or misapprehended the conseqs, the judge can permit w/d.

Counsel has an ethical obligation to ensure client understands and truly wishes to plead guilty and judges should also be sure of this.

No such thing as a conditional plea (Contingent on crown proving / fiding a fact). But in case of theft accused may concede to haing taken items but claim colour of right or deny the necessary mens rea, s655 CC.

Accused must be present during whole trial (n/a to corporation). --> so accused must be present for plea, s650 CC.Exception summary offence : s800 authorizes appearance by counselIf accused is present and counsel enters a plea to an indictable offence – then the plea is generally binding on the accused

Accused can appear electronically if simultaneous video/audio and accused can consult privately with counsel.

Trial ProceduresCC Parts XIX (trial by jduge alone), XX (trial by jury), and XXVII (sumary trials)

-proceeds continuously unless judge grants adjournment.-accused to be present unless judge excuses them (summary – vice versa – jusge can order attendance, otherwise ok for counsel to appear)-attendance by video link for some parts (not when evidence is taken)-if accuse absconds – court can either adjourn and issue arrest warrant or continue trial w/o them (if counsel acts for accused who absconded - their right to full answer and defence not violated).-during trial juge decides where accused will sit – may have to sit in prisoners dock unless this will violate the accused's right to full answer and defence.-judge can ask questions but must avoid apprehension of bias in doing so-juries can also ask questions wihtin limits – up to parties to decide how to prsent their case – so juries caot become interrogators – best option is for jury to submit questions in writing to judge at end of trial, then judge and counsel can discuss whether they should be asked.

Openning Statements-crown opens with statement of its case and the evidence to be called-crown is free to modify its strategy though – short of abuse of process, Accused cant object -usu defence has to wait until close of crown case to make their openning statement –judge can allow accused to make their case right away – prevaiing view is that this does not oblige the accused to actually call evidence right then.-defence might call evidence during cross-exam of Crown witnesses

-If Crown adduces hearsay evidence in anticipation of direct testimony to support it later, but does not end up calling that witness – this can be remedied by adequate instructions to jury Crown Caseevidence taken under oath in the presence of the accused – accused entitled to cross-exam and evidence is recorded-Crown must prove every element of offence – unless accused concedes to a certain part

-can occur through “agreed stmnt of facts” or waiver of a voir dire-but silence or lack of objection to a stmnt is NOT waiver (R v Park)-even if accused is silent – admission of a statement not fatal to case, unless clearly evident that there was a need for a voir dire (despite failure of defence to request one) and judge admitted the statement anyway

adversarial nature of process : calls for considerable discretion as to how Crown will present its case

-no oblligation to call every witness w/ relevant info, or to call a witness it does not consider necessary to its case (not even the complainant – although judge might comment to jury about this choice)-Defence not entitled to cross examine all witnesses* – but can call any witness not called by Crown as part of the defence-*possibility for application under the Canada Evidence Act to cross a witness.-also judge can call witness as Court's witness allowing defence to cross-examine – may be appropriate where defence having to call the witness makes the accused give up the right to speak to the jury last

-normally evidence produced by witnesses on the stand (via testimony and / or documents) -s709 CC allows commission evidence for witnesses who are abroad or cannot attend for “good and sufficient reasons” such as illness.-see Code for special rules on proof of :

-ownership / value of property - s.657.1-expert's reports – s657.3

-dates of birth – s658(3)-previous convictions – s667

-sometimes evidence taken at PI can be used at trial – s.715 (and 657, 541)-videotaped evid of persons under 18, or physically/mentally disabled, can be used for sexual offences – s715.1 & 2-use of technology avail if incr effeiciency -R v Mackay

-jury must be able to see any person place or thing (s652) – at any time prior to rendering of verdict (even during deliberations)-this applies to judge where no jury present

-witness who refuses to testify can be imprisoned by judge for up to 8 days at a time (s545)

-at close of crown case accused can apply for directed verdict – at which point judge can order acquittal (CL power) aka “nonsuit” or “no case to answer” -this is consistent with roles of judge and jury jury = trier of fact – called upon to assess credibility of witnesses and decide whether Crown's case proven BRD, etcjudge = not to intrude in jury's role BUT where Crown failed to adduce evidence of essential element to the offence, trial judge can in effect “release jury” and enter acquittal-accused has the right to hear judge's ruling on motion for non suit beofre deciding whether to lead evidence in defence (R v Boissoneault)-judge's ruling cannot be based on reliability of evidence – not permittd to weigh the strength of the evidence – when there is a jury

Test for directed verdict:(Same as PI) -whether or not there is any evidence upon which a reasonable jury, properly instructed, could return a verdict of guilty.and -a justice is required to commit a person for trial where there is admissable evidence which, if it were believed by the jury, would result in a conviction.

-not enough that evidence is “weak”-only avail where there is a complete absence of evidence on some point that must be proven-ie becomes a stricly legal question (not a factual one)-directed verdict should not be used for when Crown's case is purely circumstantial that is left to the jury to determine whether there is another rational explanation for the circumstantial evidence other than that the accused committed the crime.-there may be scope for trial judge to do this by applying the PI teest with respect to a purely circumstantial case: that is whether if Crowns evidence is believed, it would be reasonable for prop instr jury to infer guilt.-directd verdict can be granted on charge laid – but the trial continues to decide whether accused is guilty of any included offences. (eg. R v Titus – Court agreed to direct acquittal on 1st degree murder but allowed trial to continue to decide guilt of 2nd degree murder)

Defence Case-accused is entitled to make full answer and defence ss541, 560 CC-defence enjoys same discretion as to how it will present case – judge cannot direct order of witnesses or require accused to go first.-accused is competent but not compellable – neither the judge nor Crown can comment on accused choosing not to testify – consistent with accused's right to silence and presumption of innocence guaranteed by the Charter.-normally defence cannot cross exam own witnesses

Reopening Crown CaseAfter defence closes its case that's it - “splitting the Crown's case” is prohibited- Crown not allowed to present some evidence before and some after accused has made decision whether or not to remain silentBUT the Crown can in exceptional cases apply to reopen its case and call further evidence

keystone principle whether to allow Crown to reopen its case: -judge must ask whether accused will be prejudiced in making a defence-discretion to allow it becomes narrowe as case proceeds-dsicretion is most broad during Crowns case at opening of trial-less discretion when clrown has closed case and before defence has elected whether to call evidence-finally after defence has begun its case discretion is “extremely narrow” and far less likely to be exercised in Crown's favour – and accused's interests will be paramount at that point(R v G (S.G.) [1997] 2 SCR 716-it ought to be new evidence – ie not foreseeable by Crown and it is in interests of justice to allowAND-either defence must have contributed (directly or indirectly) to Crowns failure to adduce the evidence earlier – or Crown made technoical error that does not go to substance of the case-Crown's fault not relevant (ie. extent of Crown's diligence) – the main concern is to protect the accused from being prejudiced and the accused's right to know the case before putting forward a defence

-Eg. Crown allowed to reopen R v Sylvester – police officer received telephone calls from witness on weekend following crown's closing arguments. Witness said she had lied on the stand and then retracted that claim. Crown permitted to reopen to present phone call evidence. Defence was allowed to cross examine, to call the witness to the stand again and to make further submissions. Cof A held no problem with this conduct of trial since judge fully instructed jury on limited use they could make of the evidence.

Rebuttal Evidencepermitted when:defence raises new matter or defence which Crown had no opportunity to address AND which Crown could not have reasonably anticipated.Crown cannot be permitted to simply reinforce or confirm evidence adduced earlier which could have been done during Crowns case.Use for when Crown is surprised by an issue being raised (and not for something they already dealt with / anticipated.)

R v Biddle – accused charged with assault btw 10 and 10:30 pm. Accused took stand and claimed he was at a show btw 7:30 and 9:15pm and then several bars later on. Crown led rebuttal evidence that witness testified he followed her in his car at 8:30 pm – Court held this evidence should not have been allowed in rebuttal since it should have been presented during Crown's case. - Accused had given a statement to police about his whereabouts and ought to have anticipated a challenge to the identification evidence. Crown could have presented the witness as part of its case – failure to do so prevented the accused from knowing the case against him before testifying.

Note: not a case of not knowing case to meet where defence raises unanticipated matters – those would not have been part of the original case to meet. So rebuttal evidence with respect to such matters should be admissable.

Reopening Defence Case -Since defence case comes last – there is a short time frame for this to occur-in juge's discretioneg. R v Scott – co-accused sought bench warrant for witness who had not responded to subpoena – application was unsuccessful and defence entered no evidence and moved straight to final submissions along with the Crown. Witness then appeared and accused sought to reopen case. Court of appeal held she was right to refuse the application because the trial judge has an obligation to ensure expeditious and orderly trial, also it went against the accused that 1)she was given no explanation as to why the testimony would be relevant. and 2) the trial judge had to aslo consider possible prejudice to the co-accused who had objected to an adjournent.

Case cannot be reopened oncejury has reached verdict or trial judge has entered acquittal. But possible to reopen case after guilty verdict entered by judge alone, in special circumstances. -Test for admitting new evidence in this case will be the same as that of entering fresh evidence on appeal.

Addresses to Jury

Closing arguments:per s651 – If defence has not called evidence, then Crown argues first. If defence has called evidence it gives closing arguments before Crown. (If more than one accused – all are affected by either one calling evidence and if this happens, Crown argues last.)

But if Crown's closing address in a partic case is irregular or threatens fairness of trial – 2 options:

1. trial judge (who is always gives the final address) cancure the defect by instructing the jury to ignore the improper aspects of an argument, or

2. the court can use its inherent jurisdiction to allow the defence a limited reply following the Crown's address, where not doing so would prejudice the accused's right to a fair trial and to make full answer and defence

-happens where Crown makes unanticipated/surprise argument

-although majority of SCC held that ss7 and 11 not offended by Crown being allowed to speak last (s651) – all 9 judges thought better alternatives existed – such as always allowing accused to have last say or being given a choice as to when to speak.

Charge to the Jury:-Judge's instructions to jury. -s650.1 permits judge to confer with counsel as to what matters should be explained to the jury – purpose is to leave jury with sufft understanding of the facts as they relate to the legal issuesJudge's charge Requirements:

fair

dispassionate last thing said to jury before they commence deliberations

R v Daley - jury cannot be left to their own devices as to what evidence must be considered:

judge should:■ review substantial parts of the evidence;■ review the prosecution's theory■ give the jury the theory of the defence so they can appreciate:

the value + effect of the evidence; and how the law is to be applied to the facts as they find them

-judge should also provide instr as to: all the defences which arise, whether accused has raised them or not other relevant issues such as

use that can be made of accused's criminal record; issues surrounding circumstantial evidence; identification evidence; and alibi evidence

and finally, the procedures for deliberation (how long it can be, etc)

(judge may ask counsel if there is anything more that needs to be said but error to allow either counsel to address the jury again themselves)-and not advisable that charges be split with counsel being allowed to speak in between

-instr to jury need not be perfect – but must be “proper”-common law matter, which gives judges some leeway, including experimentation w/ new approaches – provided that at the end the jury understands their task and has been given the assistance they require eg. R v Menard – instr were given in 4 parts: 1. substantive law at start of trial 2&3.instr two specific matters during course of trial and 4. reviewing the evidence w/o reviewing the other instructions (although transcripts were distributed to the jury) at the end of the trial.SCC held no miscarriage of justice but did not agree with the method used of instructing jury at outset – on issues that might not even arise during trial / or bear significance – also important issues such as reasonable doubt, presumption of innocence and burden of proof too important to be addressed at the end by handing out the transcript of earlier instructions.

-sometimes better to not restate the facts for each charge – but not to say a charge that is very long will be an error:R v Fell – 4 day charge given to jury did not make the trial unfair, as there was nothing inaccurate in the charge

-judge's charge is fruitful source of argument – since appeals usu focus on legal issues, ie did the trial judge accurately describe the law?-in reviewing trial judge's instr – charge is veiwed as a whole and inadequacies in one portion may be compensated for at another end.

-trial judge entitled to offer opinions on matters of fact – but not to remove the decision making from the jury – this would offend s11(f) right to trial by jury*no such thing as direccted verdict of conviction (can only direct verdict of acquittal)

After the charge the judge will allow some time for consultation with counsel, prior to deliberations, and consider any comments made...

Then the judge may Re-charge the Jury:-may correct an error i original charge – making charge satsif taken as a wholeRv W.(D.) - error in re-charge to jury did not form basis of appeal because re-charge was quite short and took place only a few minutes after original charge, and judge instr jury not to give special emphasis to the re-charge , but to keep the duties he outlined in the main charge in mind.

-if jury has begun deliberations and asks a question – that re-charge is very significant-judge hears counsel on what might be the correct response and answer given must be correct and comprehensive - cannot be saved by referring to original charge – because it is clear that that wasnt enough to provide clarity the jury needed.

Judge and Jury – Impartial Trier of Fact and/or Law

-Judges authority over court process comes from common law / statute -also s482 CC empowers Superior Courts to make rules of court (these rules must be consistent w/ CC)

Trial Judge -decides how trial will run. Incl: curtailment of cross-examination; preventing harrssing/ irrelevant questionning; and can ask witnesses questions themselves-that discretion must not violate accused's right to fair trialTest: Would a reasonably minded person who was present thoughout the trial consider that the accused did not have a fair trial?-R v Valley

-s485 preserves Court's jurisdiction over accused despite failure to comply w/ CC provisions – if Court does lose jurisdiction, can be regained by issuing warrant w/in 3 months – otherwise proceedings dismissed for want of prosecution. Crown would be required to obtian special written permission to lay new charges, from the A-G

-power to grant adjournments during proceedings, ss537; 645

-judge can also exclude any/all members of public from all /any part of trial, s486(1) – where interest of public morals, maintenance of order, or proper administration of justice-also incl : interests of witness under 18 in sexual assault trials, s486(2) – and a judge that does not grant request for exclusion in sexual assault case must give reasons.(the provision violates s2(b) by allowing judg to prevent press from reporting on a case, but

is saved by s1 CBC V NB (A-G) case)Test for whether s486 exclusion discretion was exercised properly: 1. Has judge considered the avail options – i.e. reasonable and effective alternatives?2. Has judge attempted to limit the order as much as possible?3. Has judged wieghed importance of order + possible effects against importance of openness + limits on expression in order to achieve a proper balance – ie so that negative doesnt outweigh the positive?(CBC v NB)

-special provision is also made for how certain persons can be allowed to testify – s486.1-witness under 18 or w/ disability can have a support person of their choice nearby.-can also allow such witness to testify outside crtrm or behind screen – but only if judge thinks it is required in order to obtain full and candid testimony in either case although witness may be protected from seeing the accused , the

accused will still be able to see the witness.-judge has trial mgmt power – incl: limits on oral submissions; direct submissions to be written; require offer of proof prior to voir dire, defer a ruling, direct manner of voir dire (eg. w/ testimony or w/o), and order of evidence (exceptional circumstances)

-always remember – trial judge must not create reasonable apprehension of bias

Publication Bans-conflict with open court principle – not used freely-can be both CL and statute based-s486.4 – allows pub ban of sexual assault complainant or witness -if under 18 judge must inform of right to apply and if Crown asks for it, must be granted-s486.5 – judge's discretion to allow ban on disclosure of witneess/victim's identity

-can also be used for other participants such as jury/prosec/officer.-see also s276.3 ban on previous sex activity; and s648 on evidence from trial where jurors separated before delberations-YCJA bans on identifying young person being dealt with under the Act-young persons who are victim / witness to YCJA proceedings may apply to personally publish info once they reach 18 yrs of age

Dagenais v CBC – common law power to issue pub ban – application made in absence of jury – judge decides to give media standing – cl rule that ban can be ordered if real and substantial ris of interf w/ right to fair trial, had to be modified by Charter which also guarantees freedom of expr and of the press-ban was justified bc of alternatives avail. incl: adjourment/sequestr jury/change of venue/strong directions to juryR v Mentuck – not about “fair trial” issue, Mr Big scenario = suspect induced to give info to “criminal higher up” who he wants to be recruited by. Crown sought ban of P.O.s names and about the technique itself. Judge granted banof identities but not of technique.

-but importantly Court recognized rights other than that of “fair trial” could be weighed against the freedm expr/press guarantees. Court will seek to balance : rights that make up proper administration of justice with s2(b) freedoms - Dagneais/Mentuck Test for Publication Bans:

Publication ban should only be ordered when:a) such order is nec to prevent serious risk to proper admin of justice because no reasonable alternative measures will prevent the riskb) salutary effects of the ban outwiegh deleterious effects on parties and the pulic incl right to free expr, right to fair and public trial, and efficacy of administration of justice-Onus is on person seeking banContempt of Court-common law power expressly preserved by s9 CC (appeal procedure s.10)-2 types:

1. contempt committed in face of court -Superior courts and Inferior courts2. contempt committed not in face of court -Superior courts only

-under YCJA youth justice courts(and any other) have broad discretion over both types when committed by a young person.

Contempt in face of court can incl: insolence to the court, refusal to answer questions while under oath-intended to maintain courts dignity and fairness of trial

can be applied 2 ways:1. ordinary procedure – gives accused usual procedural guarantees of a criminal trial2. summary procedure – only avail if urgent and imperative to act immediately. Only least possible power necessary should be used.

3 steps to contempt charge (summary procedure):1. put person on notice to show cause why they shouldn't be held in contempt2. adjournemnt given to allow consultation w/counsel3. opportunity given to person to make representations as to sentence-failure to follow these steps = error of law-if made with jury present, it must be emphasized that guilt of contempt does not=guilt in actual trial

Mistrials-can be declared at any point in proceedings (as early as jury selection; as late as post conviction, but pre-sentence)-causal issues incl: innapropriate publicity; other errors during jury selection; improper comments by Crown during address to jury; inadmissable evidence given to jury by accident-remedy of last resort, not automatic – usu preferred remedy is to direct jury to ignore the inadmissable evidence / comment-if so prejudicial jury would not be capable of disregarding it then jury has to be discharged and new trial ordered (R v D. (L.E.))-either accused or crown can apply-can happen in trial by judge alone-will not be interfered with on appeal unless court is clearly satisfied that judge proceeded on a wrong principle of law or was wrong-judge can also declare mistrial per s653 in case of hung jury

-accused cannot plead autref convict/acquit in case of mistrial-where a mistrial declared to save floundering Crown case – accused may have recourse to Charter to prevent a new trial, but in most all other cases new proceedings are commenced

Statutory Police Powers

ss494-528 CC – powers of arrest-only time PO cant arrest – summary offence only and accused not caught in the act

ss25-33 related powers – use of force

s487 search powers and seizure of evidence-general power to seize anything (w/no warrant) thought to be obtained in commission of an offence

also in the code authority to:492.1 use a trakcing device492.2 install recorder on telephone487 video surveillance256 obtain blood samples487 obtain handprints etc487.05 obtain DNA samples487.01 PO can apply for warrant to “use any device or investigative techniue or procedure or do anything”

othe statutes can auth investig techniques – eg. prov legisl auth random vehicle stops (other examples on p13)

s25.1 – broad power allowing POs to do what otherwise would be a crime

-given broad PO powers in statute Courts cautious about extending powers at CLeg. R v Kokesch – property rights need clear stat lang to be intruded on by POs

Common Law Powers

Historical CL Powers

-powers of search incident to an arrest: Cloutier v Langlois – police have the power to search a lawfully arrested person and seize anything in his possession or immediate surroundings to:

1. guarantee the safety of the accused and of the police and2. to prevent escape or 3. provide evidence against him

this power was expanded – beyond its original purpose of preserving evidence

R v Stillman : a broader search incident to arest power applied to vehicles. As for searching

the person – the power did not go beyond discovering evidence that might disappear

R v Caslake: pretty broad- ensure safety of police and public; prevent destruciton of evidence; and discovery of evidence to be used at trial

R v Golden: was there a CL strip search power? Yes – But no more than a “frisk” search UNLESS there are reasonable and probable grounds to believe a strip search is necessary in the partic circumstances. and unless the search cannot be postponed must be done at station.

-entering private dwelling in hot pursuit of person fleeing arrest:Eccles v Bourque – police have power to arrest perosn w/in private dwelling

note : CL rules that devd pre-Charter need to be re-examined (R v Feeney) Thus warrantless entry of a dwelling is prima facie unreasonable

New CL Powers – “Ancillary Powers Doctrine”

under s9 courts have decided that “legal” detention is not arbitrary detentionThe Waterfield Test:

1. Does the conduct fall w/in scope of duty imposed by statute or recognized at CL?2. does the conduct, although within general scope of such a duty, involve unjustifiable

use of powers associated with the duty?

first branch of Waterford not likely to fail but second branch depends on:-the duty being performed -extent to which interference w/liberty is necessary -importance of duty to the public good-the liberty interfered with-nature and extent of interference(Godoy)

Note the distinction btw PO's duty and PO's powers – in the case of exercising mere power persons who get in the way cannot be accused of obstrcting them in execution of their duty.

But this law has not been consistently applied : Stenning – PO entered premises w/o stat auth and was assaulted by person insde. In that case the PO was found to be in execution of his duty because he was “investigating”

-undesirabe uncertainty coes fro the fat that Waterford tst can be used to justify poice behaviour after the fact Police given very broad powers which incl “preservatio of the peace , prevention of crime and protection of life and property” - Dedman

The wide range of powers pre-auth by statute and communications technology the need for

broad CL powers is small

“Default” CL Powers

=the power to do anything that will not result in some remedy to the accused

Pre-Charter there was no basis to exclude evidence that was relevants24(2) now allows excl of some evidence – but if there is no Charter breach this section cant be relied on; and the evidence will be admitted.

s8 right against search and seizure onlly applies where reasonable expectation of privacy is had.Otherwise in most cases a warrantless search is prima facie illegal – unless justified in some way.The default power works like this (p21): no reasonable expectation of privacy in electricity consumption records – therefore s 8 not invoked if obtained by police w/o stat authority – no stay of proceedigs and no exclusion of evidence will be granted – since no Charter breach occurred ---> this essentially “gives the police the power to obtain electr consump records w/o a warrant” although no one calls it that.

other examples:-guest in an apt has no reasonable expect of privacy engaged by search of the apt-passengers in an MV

Consent

cooperation by suspect – another source of PO power -PO can question a person re suspected offence – but cannot compel them to answer - if they voluntarily answer than the info is admissable

-also incl police request to provide DNA samples; appear in a lineup; or stop a vehicle

no stat / CL auth requiring accused to participate in a lineup – but there also has been no decision stating that there is a positive right to refuse --> meaning refusal to do so can be brought up at trial(but note prob will agree because police can try other ways such as showing the accused to a witness by himself)

At some point during an interview with a witness they may become a suspect – and should be considered “detained” invoking s10(b) of the Charter

Limits on consent:-to take DNA for one offence (voluntarily) but used for investigating another than involves s8-on the other hand if DNA is handed over w/ no restriction on its use the accused no longer has an expectation of privacy – and police can use it anyway they wish

Also need to consider whether the consent is real – some people think they have to comply with a partic request which isnt an informed and truly voluntary form of consent.

eg. emptying contents of sports bag – not automatically “consensual”

Search and Seizure

Baron v Canada – decision to grant/withold warrant requires balancing of 2 interests :individual freedom from intrusion by state and the state's need to intrude for law enforcement purposes

Hunter v Southam – the question is: whether in a partic situ, public's interest in being left alone must give way to govt interest in intrusion to advance goals of law enforcement

In other words, priority is given to the inidividual's interestbut ever since PO powers have enlarged

CanadianOxy Chemicals may be a departure from Hunter - which made no mention of individual interest in determining the scope of search provisions of s487(1)

Search = intrusion on reasonable expectation of privacyInc: frisking, electronic monitoring, inspection of a workplace, wiretap, video surv.Does not incl: request to inspect foreign docs – (although supplying those docs might be)

Seizure = not based on compulsion or deprivation but on reasonable expectations of priacyIncl: photocopying company documents, doctor handing over blood sample to police (if dr was only auth to have the sample for limited purposes) Does not incl: evidence that is “found” (like sample of blood taken from car accident)Also an exception: taking bodily fluids abandoned by an accused -but this exception has been contained: Stillman – accused not in custody discards kleenex or cigarette butt – police may ordinarily collect these items and test them w/o consent – but when accused in custody discards items containing bodily fluids – its a different story. - if they are in there for days may have no choice but to proide some kind of sample at some point.Nguyen – offering accused a piece of gum knowing he would have to discard it before entering courtroom.

Searches with a Warrant

Warrants require information on Oath – by PO who is in position to know.

Places – s487Minimum Constl reqts set out in Hunter reflected in the code:-CC reQ: that warrant must be issued by Justice - Hunter: that prior auth for a search whould come fro soemone entirely neutral and impartial-person issuing warrant cannot be partially in an investigative role as well (as was the case

with the Trade Practices Commission in Hunter) -Someone must be responsible for the execution of the warrant – risks being called a “fishing licence” if it does not designate a person responsible and a time frame for conducting the search-Hunter: Justice must be satisfied of more than a possibiltiy that evidence will be found – cant have intrusions based on mere suspicion.(the justice must be given facts that show the basis for the PO's belief)

-Other than innocence at stake exceoption – no need to id the informant for a warrant – affidavit tha accompanies the application for one can contain hearsay and need not be admissable in court

-warrant based on info that was obtained in viol of Charter will be quashedKokesch – search of exterior of residence – police obtained search warrant on basis of what they observed on the property – and it was later quashed – because no reasonable grounds to inspect the premises in the first place - Led to evidence obtained being excluded.Note : not automatic – viol of s8 is a factor to consider under s24(2) exclusion is discretionary

If police knock on door to see if they can smell MaryJ then their behaviour = warrantless searchIf they knock on door for some other legitimate reason = not a search and if they smell Mary J after that – no Charter violation - entitled to a valid warrant to search. Because homeowners can be assumed to have issued an implied general invitation to anyone to knock on their door.

If warrant based on partly illegally obtained info then reviewing court reqd to ask:Would the untainted evidence, on its own, have justified issuing the warrant? and either quash or uphold it.

s487(1) - 4 categories of things that can be searchedWarrant can be iwsued by juticee satisfied (by evidence on oath) there are reasonable grounds to believe any of the following is in a building, receptacle or place:-anything on or in respect of which offence committed-anything that will provide evidence of offence or location of suspect-anything reasonably believed to be intended for use to commit an offence (*for which person could be arrested w/o warrant)-offence related property (def in s2 : property that has / will be used in committing an indictable offence)-->broad but not unltd purposes for a search

-limited to physical items – ie not bank accounts-must specify in advance: with some precision, what evidence will be foundeg. warrant issued for publication “x” and “other obscene materials”, quashed w/ respect to all but the one named.how specific: enough so that person being searched is sufficiently informed of reason for the search.

s489 – allows PO to seize evidence not named in warrant discovered during the search

Sealing Orders-once items seized = public info unless an applicant can demonstrate that public access would subvert the ends of justice.

s488 warrant to be executed by day unless reasonable grounds for executing by night(and warrant authorizes that)

Person - DNA Warrants

-warrants can be issued to obtain hair, buccal swabs, blood samples from a suspect-greater protections for privacy because these searches directly affect bodily integrityBasic Requirements:information on oath that - 1. bodily substance connected w/offence has been found (in any place associated w/ the commission of the offence); and2. that DNA analysis will provide evidence whether it was from the person+Conditions may be imposed to make the taking of a sampe reasonable

-DNA warrants only avail for offences listed s487.04 (basically sexual offences and offences causing bodily harm) + must be in best interests of justice to issue the warrant (as with video surv warrants)

PO must advise accused of contents of warrant, method, and purpose for taking the sample, and advise of right to use forcenote it is an offence to use the sample taken for any purpose other than – investig of designated offence meeting the warrant reqt.

PO must destroy DNA sample : -if analysis shows sample is not from the person; or -person is acquitted or no new proceedings commenced after discharge during PI for more than one year

-The DNA databank was held not to violate the Charter bc offenders convcted of the crimes to which it applies have a lower expectation of privacy – and it is an important tool for law enforcement – as well the safeguards in place such as that it be used for identification purposes only.

Misc. search provisions -s256 – blood sample from person suspected of driving while impaired-wiretaps – very intrusive – special provisions

cp tracking devices or number recorders (numbers to and from telehpone calls are being made)– only need suspicion that offence might be committed these warrants exp after 60 days

nature of things beig searched for also significant-s164 – special powers for seizur of obscene materials, crime comics, child pornography

preventive concerns motivate separate warrant provisions for : gaming houses, hate propoganda, valuable minerals, Drugs, and explosives

In Hurrell - Ont Cof A struck down s117.04 for failure to comply w/ Hunter v Southam-allows PO to obt warrant for seizure of weapon where not safe for person to have it-too sweeping to be saved under s1 because it req the justice to be satisfied person shouldnt have the weapon – but does not req the justice to be satisfied he in fact does have it.

Reviewing Warrant -cannot appeal issue of warrant-usu best to challenge it at trial – central issue will be whether reqts have been met:eg. sufft descr of premises / suspectnot to determine whether should have been issued but whether decision to issue it could be made based on the evidence. - result of search not relevant to this question...

Evidence used to justify the warrat will be excluded if: -PO knew it wasnt true-it was illegally obtained (throguh breach of Charter)-misleading

As a result warrant can be quashed where either:-inadequacy of evidence to support its issue OR-behaviour of PO – itentionally mislead or subvert process of justice

If warrant is quashed = becomes a warantless search ...

Warrantless SearchPer Hunter – is prima facie unreasonable under s8 of the Charter To mae it legal ... R v Collins sets out min reqt to meet s8 standards:

1. But first is there a reasonable expectation of privacy (so as to invoke s8)?-privacy is the basic startig point: the level that can be expected (ot the level that can actually be achieved (R v Wong))-smthg stolen – can still expect privacy although prob wont have it anymore – but if smthg abandoned can no longer expect privacy-greater state interest can also lower the expect of pri -eg. school locker where auth need to make sure school is a safe environment-cant object to invasion of s/o else's privacy

R v Edwards Test:Factors to determine Reas Expectn of Priv:-totality of the circumstances-presence at time of search-possession or control of property or place searched-historical use of the property-ownerrship of the property

-ability to regulate access incl right to excl/admit others from the place-subjective expectation (accused himself had)-objective reasonableness of that expefctation (would a reasonable person have the same expectation)

3 types of interest:Personal (strip search, etc); Territorial (house, car. etc); and Informational (R v Tessling – not limited to intimate details)Sometimes courts will find that an informational search is no search at all - the info doesnt meet the threshold of being private enough when a search is cast as “informational” it lowers the threshold for REofP and may

retrict application of s8.Coughlan: worrisome that lower courts have started assessing searches expost facto – avoiding set rules to provide guidance for legal searches. Thus in R v Rajaratnam – PO usig sense of smell to deliberately try to detect an incriminating odour on someone – found not to be a search – BUT directly contradicts R v Evans where SCC ruling on “olfactory searches” (if not intentionally going there to conduct one then ok, but otherwsie = intrusion on privacy) Court ignoring preset rules in favour of “totality of circumstances approach” (which really only applied to a territorial search, Edwards)

Note: REofP also plays a role at s24(2) remedy stage – ie whether to exclude evidence as a result of the breach

2. Then, are the Collins Criteria met:

Once REofP established, was the search itself reasonable?

3 steps:1. Is the (warrantless) search authorized by law?2. Is the law itself reasonable?3. Is the manner in which the search is carried out reasonable?

1. Is the (warrantless) search authorized by law?-statute / CL / consent

Statute:-CC; and CDSA-usu where it can be said state interest takes priority over individ interest-CC s487 general warrants do not permit search of person, during execution of warrant for search of a place – cp s11(5) of the CDSA permits search of persons reasonably believed to have the substance on them during exdec of a warrant to search a place-CDSA s11(7) permit warrantless search where grounds to obt warrant exist but exigent circumstances make it impracticable-CC s487.11 (warrant not necessary – where exigent circumstances make it impracticable); and ss 117.02 (weapons reasonably believed to have been used in offence or are being

used) and 117.04 (circustances exist to obt warrant to seize weapons becua of safety to person – but by reason of possible danger to them or to anyone else it would not be practicable to obtain a warrant)-”exigent circumstances” = iminent danger of loss, removal, destruction of evidence (Grant (1993))also – CC – seizure of weapon if no llicence can be produced, seizure of cock from a cockpit, seizure of counterfeit money

Common Law:

-no CL power to search property (except incident to arrest)-usu applies to searches of the person – and these are usually assessed after the fact

a) Search Incident to ArrestCloutier v Langlois – held to be consistent w/Charter if properly delimited power. And that it could extend beyod the person to the surrounding area (ie building/vehicle person is in at time of arrest) Note: when it comes to a person's home – the search cannot be done to obtain evidence, but only for safety reasons/exceptional circumstances (R v Golub).Applies to validly arrested person - Not because of a reduced Expec of Priv but befcause of need for police to exert control over persons in their custody

Time of search – can be before arrest – but the grounds for arrest must be present first.I.e. turning up evidence that leads to arrest cannot then justify that initial search.There is no rule as to how long after the arrest the search takes place either – it can be a vehicle search up to 6 hours later, depending on the circumstances – but what matters is the motivation for the search.

Stillman Test: Was there a power of search incident to the arrest?:1.Was the arrest lawful?2.Was the search truly “incidental” to the arrest?* <-- usu the issue for dispute3.Was the search conducted in a reasonable manner?

*Note: Must be both an objectively valid purpose and PO must subjectively decide to conduct the search for that purpose (Caslake)

Truly Incidental = done to achieve some valid purpose connected to the arrest-if done for intimidation/pressure = not valid-policy to search everyone arrested = not valid

Caslake - Valid Purposes = 1-ensuring safety of the PO and others2-preventing destruction of evidence3-discovering evidence* that may be used at trial

*prob only in case of vehicle,etc and not bodily samples, Stillman – taking teeth imprints / hair samples not justified as an “incident of arrest” because not likely those things would change over time-if more than just safety reasons (ie discovering evidence) there must be some prospect of

finding evidence relevant to arrest made (not just to any offence)-person arrested for traffic violation – search of trunk not “truly incidental” (once PO has secured own safety)

Strip Searches --> higher REofP --> requires compelling reasons for conducting the search in the particular circumstances.

b) Search during investigative detention -created in R v Mann-w/ investigative detention – grounds for arrest (which justify the “incidental to arrest” powr) are missing – therefore independent reasonable grounds are required to justify the search-can only be done out of concern for safety of PO/public

-must be done in a reasonable manner = pat down of accused – pat down must give grounds for going further, eg. reaching into a pocketR v Mann – PO stopped M in connection with break and enter after midnight – pat down revealed “soething soft” --> therefore not grounds to go furhther – Court found this to be a breach of s8 and excluded the evidence under s24(2)

c) Exigent Circumstances

-does not justify the search – only that it was warrantless-also requires independent grounds for searchexigent circumstances = imminent danger of loss, removal, destruction if search and seizure is delayed (R v Grant (1993))-case by case assessment (warrantless searches for cars put forth as a category but court refused to create a blanket exception- Grant (1993))

Strip Searches --> should always be done at station but can take place elsewhere in exigent circumstances-and where search is held to be illegal - “exig circumst” may mean it was not as serious a violation

d) Authorization by Consent

Need to ask:1. Was the consent valid?2. What was the extent of the consent?

Dedman – initimidating nature of police action and uncertainty as to their powers – compliance cannot be regarded as voluntary – obeying a signal to stop should not be taken as waiver of rights or supplying otherwise lacking authority for the stop

Warrantless search (w/o reasonable grounds) = prima facie unreasonable Consent to it = waiver of Charter rights – therefore the standard is set highAccused must have “sufficient available info to make the choice meaningful” (R v Borden)

Criteria for valid consent – R v Wills:1)express or implied consent2)consenting person has authority to give the consent3)consent is voluntary – not the result of police oppression/coercion/other external conduct that effectively took away the choice4)consenting person aware of the nature of the PO conduct they are being asked to consent to; and5)consenting person aware of the consequences of giving that consent

-failure to inform a person of the right to refuse will likely make search involuntary-when search by consent – PO reqd to suspend the search until suspect contacts counsel

R v Borden – investig accused for 2 assaults - DNA sample left at scene of one offence not the other – accused arrested for 2nd offence – PO asked for hair and blood samples - but true motive was to analyze it in relation to 1st offence – they did not disclose that to him but consent form used the word “investigations”. Court held that B did not in fact consent to said use of the samples. There was no stat/CL auth for the police to use them either – so s8 right was violated.

position modified in R v Arp – accused consented to provide hair samples – muder investigation – PO adivsed any evidence arising from samples could be used against him – discharged at PI for that offence – 3 yrs later inestigated for 2nd murder – PO used warrant to obt hair samples and DNA teesting linked him to 2nd murder. Court held – no restriction on how evid could be used if consenting person nor PO placed such limits on it.

Rule for DNA obtained by consent = PO must disclose any specific uses they intend at the time they take the sample but (per R v Arp) if further possible uses arise later there is no bar to using the sample.

Note: even if consent is not valid – fact that PO thought accused consented may be considered at s24(2) stage so as to reduce seriousness of the s8 breach.

2. Is the law itself reasonable?

Courts tend to read down statutory warrantless search powers to be in line w/consitutional standards(eg. Grant [1993] – court read down s10 NCA to require “exigent circmstances” for warrantless search)-this question is already answered above at step 1. because the law will not be said to not violate charter if it is an unreasonable one – if the law auth a search then it must be reasonable and if read down to conform w/ the Charter then it must be reasonable – or else the answer to the above question was “no” and there was no need to proceed further.

3. Is the manner in which the search is carried out reasonable?

Even ir authorized search can be carried out ina way that is not reasonable.

R v Collins – Officer grabbed accused by throat at start of search = unreasonable.-general rule: the more invasive the search the higher the reasonableness threshold for the manner in which it is carried out

R v Thomson – wiretap allowed monitoring of phone lines including third party and public pay phones – no limits on wiretap warrant – and POs would sometimes leave wiretap recording at a payphone in hopes accused would use it too, given how invasive a wiretap is – the lack of restrained created a potential for the warrant to be carried out unreasoanbly

but note: 3rd party rights prob only a factor where there is a massive invasion of privacy.

note “manner” refers to way the warrant is physically carried out – in Debot – the fact that there was also a violation of s10(b) during the search was not relevant to the “manner” of the search.Be mindful of whether it is under a regulatroy scheme – such searches may not comply with Hunter and still be reasonable under s8 (eg surprise food inspetion under FDA)(But this will not render the evidence automaticaly admissable in unrelated criminal proceeddings – Colarusso) p111

Other Investigative PowersWong – is the case that gave rise to s487.01 CC – ironically disapproving of unrestarined govt surveillance of members of society – the Court had refused to shape extended powers to cover new ivnestigative techniques that were not auth by statute – so by s487.01 the govt basically provides for the ability to authorize “anything”.

s487.01 -does not incl body searches-unlike 487 this provision allows for warrants for offences that “will” be committed, not just ones that have been committedRestrictions:-can only be issued by judge or justice, not a JP-judge ca attach conditions-judge has to think its best interests of admin of justice (same goes for wiretaps s186)-487.01(4) req that when used where susp has REofP that conditions be placed to respect that privacy as much as possible-videotaping can only be used where other techiques have failed or are doubtful to succeed

Buhay – where police suspect s/o bt have no legal way to obtain evidence – they have to leave the suspect alone

Powers of Detention

“detention” includes:-when PO has legal power to compel person to remain-“psychological detention” when no such legal power but person complies (R v Thomsen)-roadside brethalyzer-breathalyzer at accused's home after being questioned w/o being detained

-situations where not physically restrained-voluntary stop on roadside upon request

Charter right on detention to protect detainee from self-incriminationthat having a lawyer present/being afforded the opportunity to contact one “would not have made much difference” does not affect that s10(b) right, and does not affect the s24(2) possibility of excluding the evidence.

R v HCR – youths stopped in street – not “detained” = because of testimony by PO that they would have been allowed to leave if they refused to give their names.cpR v Manninen – answering question = not a waiver of right to counsel

Common Law Powers of Detention -Waterfield Test increasingly used to create new CL PO powersWaterfield Test:

1. Does the PO conduct fall w/in the general scope of any duty imposed by statute or recognized at CL?

2. Does the conduct, although w/in the general scope, involve an unjustifiable use of PO powers?

Eg. R v Dedman - R.I.D.E. program stops were not auth by statute Court applied Waterfield:1. preventing crime and protecting life and property = w/in scope of duties if POs2. given: seriousnoess of problem of DUIs; need for deterence; fact that driving is a

licensed activity; and short duration of stop as well as minimal incovenience = conduct of random stops was not unreasonable.

Conclusion : PO authorized at CL to make the stops.

-random stops (Dedmman) or under statutory scheme (Ladoucer) do not violate the Charter-if power to stop is in absolute discretion of PO – then viol s9 right against arb detention – however these can be justified under s1 based on concerns about highway safety-detention will not be arbitrary per s9 if based on criteria that are reasonable and can be clearly expressed. (R v Wilson).

-a stop will be arb detention per s9, if based on neutral and unreliable factors or inappropriate considerations (R v Calderon – presence of cell phones, pager, fast food wrappers and dufflebags – and inap to consider that they didnt look like they could afford that car)-sometimes POs may make a stop based on race of the accused = s9 violation (racial profiling) – this usu not proven by direct evidence but will have to be inferred (R v Brown).

Investigative DetentionMann – POs have power to stop a person to investigate (even if no reasonable grounds to arrest) as long as they have 'reasonable grounds to detain'-this power is susceptible to misuse note: PO must be suspicious of a partic person in relation to a partic crime they

already know of-court must perform case by case analysis of the decision to detain – it must be justified in the circumstances-s10(a) applies – requiring that person be informed of reason for detention -but no ruling on whether it gives rise to s10(b) right to counsel-finding a CL power to arrest short of detention dramatically weakens the protection against arb detention in s9

R v Suberu – accused in investig detention made incriminating statements – was not advised of right to counsel – also evidence found by PO before s10(b) rights given. SCC held that while S was momentarily detained not phys/psych restrained so as to = “detention” under the Charter.

R v Clayton – PO received a report of men w/ guns and set up a roadblock to stop all vehicles leaving the parking lot whether they matched the vehicle or notClayton and Farmer found to have handguns. Issue: was there a violation of s9? Court held not if police acted legally – so was roadblock authorized? No statutory power – so it would have to come from CL. Majority Court applied Waterfield Test: 1) police acting in general course of their duties (hardly ever the point at issue) and 2) (should be:) the actions taken not unjustifiable use of powers associated with those duties – but the court reduced the 2nd limb to: whether in the totality of the circumstances the detention of a partic individ is “reasonably necessary”

Ability for POs to Break the Law

-ss25.1-4 CC – protect officers from liability in partic situations2 conditions:

1. PO is investigating an offence2. PO believes on reasonable grounds that the act is reasonable and proporional in the

circumstances-does not cover (25.2(11)): causing death/bodily harm; obstruct justice; or sexual offences

-must be designated by a minister resp for police for this section to apply-can be designated on emergency basis in exigent circumstances for a max period of 48hrs-25.1(9) – loss/serious damage to property – must be auth in writing by snr official and only where it is nec to: preserve life or safety; prevent compromise of PO identity/ confidential informant/ or other person acting covertly; or prevent imminent loss/destr of evidence of an indictable offence

Jurisdiction Over the Accused

s470 – court has jurisdiction where: -person is w/in the territorial limits of court's jurisdiction or

-accused otherwise lawfully ordered to appear before the court

s485 – secures jurisdiction in face of court error / failure to comply w/CC

Courts have no jurisdiction over:-persons under 12-persons who have immunity (eg diplomats)

Jurisdiction in Time

indictable offences - no period of limitationsummary conviction - 6 months from completion of offence

criminal offences not retrospective – must be a crime at time of offence (s11(g) Charter)R v Finta – made an exceptionfor war crimes on basis that they were crimes in intl law at the time.

-unreasonable delay = breach of s11(b) Charter – and remedy is stay of proceedings(no remedy if accused it the one responsible for the delay)note: R v Morin – SCC held accused had to est actual prejudice arose from delay

Arrest

Part XVI CC – Compelling Appearance- incl: 2 methods other than arrest - “summons” and “appearance notice” -desire to balance crime control w/ due process interests-compelling appearance must be sanctioned by judicial officer

4 scenarios: (least to most intrusive)1. PO demonstr to JP that reasonable grounds to believe person committed a crime –

obtain summons to appear2. Encounter accused on street and issue appearance notice, subsequently cofirmed

by JP3. Arrest w/ a warrant4. Arrest w/o a warrant

Arrest = words of arrest + touching w/view to detain (or submission by accused)

Arrest w/ Warrant

to obtain a warrant = information setting out reasonable grounds to believe person commited an offence must be laid before justice (s504 – rule for indictable offencess795 – summary offences)

summons must be issued unless on reasoable grounds warrant is necessary in public

interest-warrant from justice or povl court judge can be executed anywhere in province -in fresh pursuit – warrant can be executed anywhere in Canada

-arrest warrants – no expiry – remain in force until executed

s29-PO must give notice to arrested person of: -process or warant under which arrested and -reason for the arrest

Arrest w/o Warrant

ss 494, 495

s494(1) – arrest powers for anyone494(2) – special arrest powrs for property owners495(1) – arrest powers for POs only

*term “indictable offence” will incl hybrid offences*term “criminal offence” will incl summary offences

*”finds committing” requires person arresting to actually witness the offence “apparently” being committed (acquittal does not invalidate the arrest)

“reasonable grounds to believe” = person arresting subjectively believes person committed the offence and it the belief is objectively justifiable

-more than mere suspicion is necessary – but not a prima facie casenote however police cannnot arrest simply to be able to investigate(but can continue to investigate after arrest made)

s494(1) -given to anyone-most limited powers of arrest-can be used when either:a) person finds another person committing an indictable offence; orb) person believes another committed an offence and is attempting to escape from person who has auth to arrest them

s494(2) -property owners can arrest for any criminal offence (incl summary) being committed in relation to their property

must deliver arrested person “forthwith” = as soon as reasonably practicable underthe circumstances (R v Cunnigham)

s495

-POs only – much more broadpower to arrest in any situation except:

1. accused was not caught comitting the offence, it is only summary, and no warrant has been issued; or

2. officer believes a summary conviction offence is about to be committed

Other Arrest Powers:s199(2) -person found keeping common gaming houses31 – person found in breach of the peace

Supporting Powers

s25(1) power to use as much force as necessarys26 makes PO criminallly resp for use of excessive forces25(4) outlines where use of force likely to cause death/bodily harm is permitteds28 provides PO not criminally resp for arresting wrong person under warrant – as long as good faith belief that it was the correct person

s529 – judicial pre-auth reqd to enter a dwelling to effect arrest unless exigent circmstances – but note might be hard to show justification since s529.5 provides for auth to be obtained by telephone

Hot Pursuit ExceptionR v Feeney – upheld CL exception where PO is in hot pursuit“Hot Pursuit” = continuous pursuit done w/ reasonable diligence – so that offence, pursuit and capture form part of single transaction -applies to all offences, incl Provl

Rights Arising on Arrest

By Statute

-attempt to restrain / limit coercive PO powerseg. 503(4) – PO must release person arrested to prevent commission of offence as soon as threat no longer existss497 calls for release on summons unless certain grounds exist for contd detention

-if PO doesnot release accused – pursuant to s503, they must be taken before JP who decides whether to release – must occur w/o unreasonable delay, upper limit being w/in 24 hrs

unreasonable delay < 24 hrs w/o explanation = illegal (breach of s503 CC) and arbitrary (breach of s9 Charter)

s25 YCJA – right to counsl on arrest(already provided for by s10(b) Charter) and notice of

arrest be given to a parent.s146 – right to have parent/lawyer present during questioning – if not afforded this right statements will be inadmissable

By Charter

s10 rights apply to both arrest and detention – incl:10(a) to be promptly informed of reasons for arrest/ detention

looks at what accused can be expected to have understood (not what was actually said)

impact of 10(a) reduced in Latimer where PO advised he was being detained for investigation – false explanation since they did not have the power to do that – but court held that accused would have known seriousness of situ in rel to daughter's death

Smith 1991 – accused told he was under arrest for shooting incident – but not advised victim had died – Court held waiver fo right to counsel was valid despite s10 viol

also a basis to mae 10(b) right to counsel a more meaningful choice – ie accused understands what is at stake

s10(b) to retain and instruct counsel w/o delay and be informed of that right purpose is to allow accused to be informed of their rights ad obligations and obtain

advice on exercising them also to safeguard against self incrimination – and exercise their right to silence

note that for s1 analysis to allow a limit of these rights – PO must be authorized by law to so limit the right – an oversight by a PO is not a reaosnble limit prescribed by laweg of justification would be roadside breath tests – where limit of right to counsel is prescribed by law

Otherwise PO has certain obligations in relation to s10(b):

Informational Duties:1. Accused must be informed of their s10(b) right w/o delay:

satisfied by reading standard caution – except where language difficulty/ mental disability or genuine inability to comprehend are known and require furhter explanation2. Advise of right to Legal Aid if fiancial circumstances require it and right to immiediate legal advice whether they can afford it or not

violation of s10(b)-discouraging comments about obtaiing legal counsel -offering one time plea bargain that expires before counsel can be contacted

-these rights must be obseved whether accused expresses desire to see counsel or not

Implementational Duties:1. Reasonable opportunity for accused to spea to counsel ust be provided where they

express the desire to do so-only emergencies allow for postponing this dutyR v Manninen – accused arrested at office – should have been allowed to use that phone -instead of being made to wait until he got to the station to contact counsel – no reqt that accused asks to use the phone – up to PO to offer them the opportunity as soon as it is avail

2. Hold off from further questionning once accused chooses to contact counsel until accused has had the opportunity to do so-R v Manninen – s10(b) viol when PO cotinued questionning accused after desire expressed to contact counsel-R v Ross – accused cold not reach counsel, it being 2am and was put in ID Lineup – Court held there was no urgency or compelling reason to not wait until counsel was reached

-these duties only arise where right to counse has not been waived-they can be waived explicitly – dedclining to contact counselor implicitly – very high standard – waiver must be clear and unequivocal- cooperating with the investigation by answring q's or particip in lineup = not a waiver

- these duties can be lost – where accused not duly diligent in attempt to contact counsel – note: right to counsel still there – but PO is then able to continue the investigation prior to contact w/counsel being made– or they are purposely trying to obstruct the investigation (eg R Tremblay – stalling a breathalyzer test)

-once accused does speak with counsel PO are allowed to continue asking them questions – even if they have chosen to remain silent

Compelling Appearance w/o Arrest

-preference is given to not arresting (as indicated by 495(2))

Pre-Charge:-if PO chooses not to arrest s496 auth issuance of appearance notice – person mut be advised that failure to appear is an offence (under s145 CC)-arrested person can also be released on “promise to appear” form 10; or-recognizance, Form 11, is a debt under $500 undertaken to be incurred should person fail to appear -before the first appearnace justice must be given an information which supports the notice to appear- if not satisfied there are reasoable grounds that offence committed he will cancel the process-once appearance notice has been given PO must lay a charge as soon as practicable and before the time and date on which person due to appear – otherwise the process lapses and person cannot be charged with failure to appear-if they do appear court may assume jurisdiction over them anyway-if charge not laid in time – new information can be laid to compel appearance

Post-Charge:

-in cases where PO was present at commission of crime for example, a justice will review the charge after the fact -otherwise the police should 1. investigate 2. decide who they believe is guilty and then 3. lay charge before justice to compel appearance

-in cases where charge laid first – justice issues warrant or summons = issued by court and contains particulars of charge, Form 6-must be served in person or left w/ an adult at last known address-s499 gives officer in charge of person arrested under warrant the auth to add conditons on release incl that the person abstain from use of drugs/alcohol, or go to specified places-person can apply to have the conditions modified

Judicial Interim Release

-presumption that accused should be released pending trial with as few restrictions as possible. Crown must justify ea step toward more intrusiveness (ie conditions/detention)-once brought to a JP, they can adjourn bail hearing for up to 3 days w/o consent of accused(s516 requires consent of the accused for an adjournment longer than 3 days)

Bail hearing = show cause hearing --> because accused must be released at bail hearing unless Crown can show cause why more restrictions are necessary – s515 CC

-conditions applied on release designed to assure attendance at trial -must be reaslistic and workable - not setting accused up to fail (R v Thomson)

cotinued detention can only be ordered where:1. necessary to ensure attendance in court2. necessaty for the protection or safety of the public3. necessary to maintain confidence in the admin of justice- incl: apparnet strength of

case, nature of offence, circumstances surrounding its commission (incl use of firearm) and potential for lengthy term of imprisonment (in case of firearm, 3yrs+) see R v Hall

R v Hall – the 3rd ground should be used sparingly – and rarely if ever should it stand alone to justify contd detention3rd criteria used to read: “on any other just cause being shown” - SCC held that was unconstl because too vague

-if Crown shows cause for contd detention -JP must attach reasons

-show cause onus reversed for offences listed in s515(6) : not resident in Can allegedly committed offence while on bail organized crime/terrorism/natl sec offences

relates to failure to attend court previously offence is punishable by ife imprisonment under CDSA

-no discretion to release the accused for s469 offences – s515(11) – and accused must be taken before sup crt judge to est that he/she should be released

most comonly – murder

-ail decisions can be reviewed to make adjustments, etc. but must wait 30 days after each review to bring another one-if trial has not commenced w/in specified time accused entitled to automatic review, s525

s518 – sets out evidence rules for bail hearing – JP can base decision on evidence they consider trustworthy or credible in the circumstances of each case

-not an interrogation in relation to the offence – although Crown may adduce evidence to est probabilty of coviction

-if accused violates condition of release – they can be arrested w/ or w/o warrant, s524

Disclosure

-remember the question is whether the right to make full answer and defence is impaired (Stinchcombe)

-R v Stinchcombe - while disclosure may allow an accused to tailor their defence, to anticipate the Crown's case – nonetheless fairness to the accused requires them to see the evidence in advance (Court noted the different roles of Crown and Defendant and what each required to prove) - and while Crown may need to continue investigating – they have theiberty of waiting to lay charges until they are ready – so once that is done thy should be ready to make full disclosure as well

-both inculpatory and exculpatory evidence must be disclosed-disclosure to be made before plea / mode of trial selected-incl all witness stmnts whether Crown intends to call them or not (and whether or not “reliable”)

-duty to disclose triggered when --> there is a reasonable possibility the information would be useful to the accused in making full answer and defence

-Crown's obligation to disclose includes the police (R v McNeil)-disclosure is a cotinuing obligation -defence has continuing obligation to seek disclosure

But what is being remedied? - either 1. the Crown's non-disclosure; or 2. the failure to

allow a full answer and defence (if its 1 – the threshold is lower – no prejudice needs to be shown)(if its 2 – the effect on the accused's ablity to prov full answer and def needs to be shown)

Remedy for Non-DisclosureR v Carosella - accused charged w/ gross indecency – compl had visited rape crisis centre and was interviewd by case worker before contacting PO – centre destroyed all notes before PO involvement

-Court held : breach of the obligation to disclose = breach of constit rights of th accused – no need to show prejudice – the breach itself iis prejudicial.

-Court also held that a stay of proceedings should only be granted in the clearest of cases:

1) where the prejudice to the accused cannot be remedied; or2) there would be irreparable prejudice to the integrity of the justice system if

prosecution continuedIn this case both tests were met:

1) the evidence destroyed would have more than likely assisted the accused in his defence, and there was no aternative remedy to cure that prejudice

2) deliberate decision of an agency that receives govt funds to destroy documents (in an effort to defeat the processes of the court)

Remedy for Failure of Full Answer and Defence

La – PO tape recorded interview w/ compl prior to charges being laid – tape was lost before trial – PO admitted complainant had told some lies on the tape-Court held : s7 right wasnt violated at all – where Crown can show that evidence not lost due to unacceptable negligence, then there is no breach of the duty of disclosureBUT the accused's right to full answer and defence may still be breached-depends on whether he can establish actual prejudiceIn this case, the evidence did meet the standard for disclosure in Stinchcombe – (ie that it should be disclosed) but was not enough to establish a serious impairment to the accused's right to full answer and defence (ie actual prejudice from the non disclosure)

R v Dixon – involved failure to dsiclose that became apparent onlyafter trial was concluded- there the court held : right to disclosure isi onlyone aspect of the right to full a&d and if violated may not necessarily equate to impairment of full a&d

New Approach to non disclosure:1. Was the accused's right to disclosure breached? (Stinchcombe)2. If so, did the breach violate the accuseds right to make full a&d?

Did it affect either: a) the outcome of the trial ; or b) the overall fairness of the trial?*

3. If so, what remedy should be granted?

* To answer this question i the positive you need either: 1. a reasonable possibility the evid would have affected the decision to convict; or 2. reasonable possibilty of further lines of inquiry would have come up if evid disclosed

Privileged Information

Informer Privilege-identity oif informers = highes level of protection – for their safety and to maintain this investigative method

“innocence at stake exception” = identifying info will only be revealed where the informer:

is a material witness to the crime acted as an agent provocateur planted the material found under a search warrant

otherwise the tipsheet from an informer must only be edited and disclosed if the accused can establish that w/o disclosure their innocence is at stake Note : Crown still has the option of staying the proceedigns rather than making the disclosure

Solictor-Client Privilege-principle of fundamental justice – but so is right to full a&d

McClure – the obligation to disclose material otherwise protected under sol-client priv also arises depends on the innocence at stake exception

McClure Test:1.Threshold Testa)the information sought is not avail from any other non-priv source b)the accused is otherwise unable to raise a reasonable doubt2.Innocence at Stake TestStage 1)accused must demonstrate comunication exists which could raise a reas doubtStage 2)judge should then examine the communication to see if that is the case

note : McClure application = should be a last resortsolicitor's file must be the only way for the accused to prove his/her innocence

Counselling Records-psychiatric / medical / other counselling records-case by case privilege (not blanket priv like the above 2)-governed by s278.1

Materials in hands of Crown – dealt w/ under Stinchcombe disclosure rulesrecords in hands of 3rd party (sexual offences) – apply statutory scheme under s278.1-.91records in hands of 3rd party not falling under s278.1 – O'Connor rules apply

s278.2(2) makes the scheme applicable to records in hands of the Crown (that otherwise would fall under Stinchcombe)-production of record must be in interests of justice

R v Mills read down s278.1 : only records listed there in which there is also a REofP come w/in the scheme-records come into hands of Crown priv extends to them unless compl waives the priv by : expressly after being fully informed OR by voluntarily providing the records to the Crown

Preliminary Inquiries

-indictable offences only-accused / prosec can request PI-can be bipassed under s577 - where A-G decides to proceed by way of direct indictment-screening mechanism-usu accused is committed to trial-no Charter remedies avail at PI-if not specifically requested by accused (or Crown) the accused goes directly to stand trial-no longer an assessment of case as a whole – now the issues/wintesses that will be addressed must be stipin advance-these changes were justified by the current (Charter) reqt for extensive disclosure by Crown prior to accused entering their plea-new PI format is to allow certain aspects of the evidence to be tested in preparation for trial

Jurisdiction

-the only powers that a justice (or prov judge) can exercise in PI are statutory ones – or those implicit in the statute – because there is no inherent jursid over PI's (they are creatures of statute) -justice can regulate the PI as appropriate and even cajole the parties to narrow the issues or do so herself

Commencement

judge cant conduct PI and trial at same time – nor can one accused be in a PI while the co-accused is at trial at the same time-first appearance = arraignment (charges read to the accused); accused submits to jurisd of court; and elects mode of trial-once evidence is adduced before a judge – that must be the judge that sees the PI through

Scope

-not limited to offences charged on the information – but can give rise to other offences that are disclosed by the evidence (in same transaction) – not limited to lesser/included

offences-judge can commit accused to trial on all of them-no power to order production of 3rd party records at PI – butcan alow the accused to cross the compl laying the foundation for an application for disclosure at trial-same goes for possible Charter motion at trial

-the only basis for challenging the information would be that it fails to charge an indictable offence-also no auth to decide whether information properly sworn; or any special pleas based on double jeopardy-but s601 gives judge broad powers to amend the charges at the PI-therefore not likely that a challenge to quash an information at PI can ever succeed – so long as the probem can be corrected by amendment

Multiple Accused / Counts

-no power to order severance of accused or counts at PI-if one accused requests P they all get one

Presence of the Accused

-accused entitled to be present-if accused absconds during PI = waiver of right to be present s544-counsel can continue on accused's behalf-justice entitled to draw adverse inferenceConstitutional Issues

-court conducting PI = not a court of “competent jurisd” for Charter purposes (per Mills, Hynes)-if consti remedy being sought – has to wait for trial

Evidence

Admissibility-evid at PI takend under oath and recorded-rules of evid apply at PI as they would at trial-judge has no auth to call witnesses-but can admit evid he/she deems credible even though it would not otherwise be admissableper s540(7) – and the question is how far does this exception extend?

Cross-Examination of Prosecution Witnesses

-defence can do this at PI – in relation to any matter that would suggest the Prosec's case is insufft-and can be done in prep for trial

Address to Accused-unrepresented accused must be cautioned pursuant to s541(2)=warning about makig self-incrim statements etc

Defence Evidence-can be adduced at PI – incl accused testimony – not a trial so discharge is rarely ever based on evidence of the defenceadvantages to calling Crown witnesses – assessinng what evdence they can give in prep for trialalso – s715 CC : if evid was taken on oath at PI and witness now dead or too ill to attend trial or outside Canada – then that evidence can be aduced at trial – as long as accused had a full opp to cross -examine the witness (not full if info comes avail after the PI -eg. that the witness was getting her info from psychic visions dicsl after PI, R v Assoun)

Publication Bans-PI proceedings are open unless basis for exception-s537(1)(h); and s486 – give judge discretion to excl the public-accused is usually shielded from adverse publicity before trial – by a pub ban on the PIs539 makes a pub ban discretionary if sought by Crown and mandatory if sought by accused-ban is in effect until discharge or in case of committal until end of trial

Committal-s548 – req committal for trial on any indictable offence if the evidence is sufftand discharge the accused in respect of any charge for which evid not sufft

“sufficient evidence”=Shephard test

USA v Shephard – SCC held the test is: whether a reasonable jury properly instructed could find the charge proved BRD.

Judge will look at completeness and weight:

completeness:-crown has to lead evidence on all elements of the offence, including identification evidenceeg. assault – there should be evidence led that : the accused – intentionally – applied force – to another person – w/o that person's consent

weight:the Courts have stated it is not the funcion of the judg at the PI to assess the weight of evidence at the PIeg. should not assess credibility of witnesses-should not usurp the role of the trial judge / jury (to determine the strength of the case)

(but finding that no reasonable jury prop instr could find the charge proven BRD – may inevitably be an assessment of weight and should result in discharge

(which would be w/in the role of the PI judge))

If there is direct evidence on every element – then accused should be committed to stand trial but if the Crown's case is circumstantial on some of the elements – then the PI judge should undertake a limited weighing of the evidence on the whole (including any defence evidence) to determine wheher a reasonable trier of fact could return a finding of guilt.

ExtraditionUSA v Ferras – extended the role of PI judges by saying that if the evidence is so manifestly unreliable that it would be unsafe to rest a verdict on it – extradition should not be ordered – the court modified Shephard to allow this for extradition hearings.

Outcome:Once PI meets test of sufficiency – judge endorses the information so as to indentify the appropriate offences.-judge is not limited to offences chargeed on the information or to lesser or included offences – but can find there is evidence of any offence-but is limitd to offences occurring w/in same transaction (except summary offences)-ie offences related to the event or sequence of events that gave rise to the charges-can even include offences against another victim not identified in original charge (as long as the same set of events)

-discharge = not an acquittal – no grounds for cliaming double jeopardy if charged again-crown can lay fresh information or proceed by way of direct indictment (be sure to note the reqts)-discharge = not a final judgment – because tthere is no risk (“jeopardy”) of conviction at PI -if comitted --> justice must transmit record of PI to trial court – s551-incl charges (as endorsed) , evidence, exhibits, any statement, made by the accused (after address to the accused), and process papers relating to compelling appearance of accused

Review of PI Decision

-statutory execise therefore no appeal is possible because no procedures for it are provided by CC -only course would be certiorariunder certiorari review – not sufficient to show error of law – certiorari will only be granted for jurisdictional error :

-evidence issues = not jurisictional, unless they rise to level of a denial of natural justice-failure to comply w/ mandatory provision of code = jurisdictional error

-s548 – which requires justice to commit if sufficient evidence = jurisdictional error if justice commits on insufficient evidence (ie if there is no basis in the evidence that supports the decision to commit)

-where Crown indicates evidence led through PI witness will not be led at trial – justice at PI must consider it anyway, otherwise = jurisdictional error

-also granting discharge w/o considering the whole of the evidence = jurisdictional error because that is what s548 requires them to do

Sazant – judge “there was absolutely no evidence of non cosent” : meanwhile compl had testified that he did not want to participateSo 3 possible types of jurisdictional error occurred:

misunderstanding the elements of the offence and gave effect to a non existent defence --> translates to failure to apply the Crown's evidence to the actual elements;

finding the compl testimony to be ambiguous – either as after the fat regret or during the fact nonconsent --> which would mean he was deciding an issue reserved for the trial forum; OR

simply overlooking the evidence of non cosent given in the complainant's testimony --> which amounts to failure to consider “the whole of the evidence” as required by s548

Selecting Mode of Trial

Road Map of proceedigns:

1. s504 – information laid before a justice – alleges commission of an offence(if summary --> same document used for trial – s788)

2. s507 – justice decides whether to proceed and whether to issue summons / warrant

3. If arrested, accused attends bail hearing - taken before a judge to decide whether to detain / release – s503, procedures for bail hearing - s515)

4. Once issue of release is dealt with, an Arraigment takes place – accused's initial 1st court appearance to answer the chargeIf hybrid offence – Crown now elects whether to proceed summarily or by indictmentIf Summary offence – accused enters plea and is tried on the information as is.

5. If by Indictment, accused elects mode of trial – must be by judge and jury, s471 (unless CC specifies otherwise, or accused elects not to have a jury (election requires A-G consent for s469 offences))

If accused refuses to elect – trial is by judge and jury If offence listed in 553 – absolute jurisdiction of magistrate – accused cannot elect

and is tried in provincial court If more than one co-accused and they elect differently from each other – trial will be

by judge and jury A-G can compel trial by jury eve if accused doesnt want one – if punishable by

>5yrs, (s568)

6. If Accused elects trial by Provl Crt – enters plea and trial takes place at any point-If Accused elects trial by judge / judge and Jury – Plea not yet entered and PI will take place if acc/crown request one, (s535). -Or If no PI requested – indictment is preferred (laid before trial court) on any charge set out in the information (s574(1.1)) for trial to commence

7. Prov Crt judge can convert trial into a PI where it seems necessary, (s555(1))Various rights of re-election are set out in s561Failure to appear w/o reasonable excuse may result in loss of jury trial

8. After PI, accused is either discharged or committed (s548(1)) If comitted – “indictment” (new document) is “preferred” (laid before trial court) – can be for any charge ordered by PI judge or found on the facts at the PI (s574)

9. Note where Accused discharged on PI – Crown can proceed by way of direct indictment under s577, requires written consent of A-G

10. Also available to Crown to stay proceedings w/ option to recommence them w/in 1 year (s579) – and the power to intervene to take over private prosecution under s579.01.

Jury Selection

-s471 – indictabl offences to be tried by judge and jury unless otherwise specified-result is that only a few – eg. muder and treason actually reqd to be tried by jury-and some cannot be tried by jury – eg. theft under $5000-note s11(f) Charter guarantees benefit of jury for any offence punishable by more than 5 yrs

Composing an array of Jurors

s92(14) – jursidcition over admin of justice in the province-jury “array” (or “panel”) = larger number of prospective jurrors from which jury selected-prov/territ legisl governs who can form the array – who is disqualified and compensation – then once array is assemled CC takes over for selection process-s626 no juror can be disqualif based on sex-typically members of public who: i) would face a conflict in serving a jury; or ii) who have a job that is more important to society than serving on a jury are exempted.

Jury selection under the Code

-can challenge the aray on grounds of partiality or fraud on part of person who assembled them-s631 - names of those present pulled randomly from a box until there are enough members left after exclusion procedures-s644 – allows array to be enlarged if exclusion leaves too few jurors – sheriff simply goes into street and asks members of public to be on the jury – aka “talesmen”-s644 allows judge to discharge juror due to illness / other reason – judge can either find replacements form other arrays – or more talesmen – or judge can have alternate jurors on reserve from the original array-once evidence is heard cant substitute altrnate jurors – so under s644(2) jury is big enough if no less than 10 members

3 ways a juror from the array may be excluded:

1. Exemptions632 – exclusion by trial judge – on basis of: personal interest in the matter – relationship w/party/counsel/judge/possible witness – hardship – other causes (note: “partiality” that is not so obvious should be reserved for exclusion by counsel during challenge for cause – but OntCofA has included it as potentially coming w/in “other reasons”, R v Krugel)

2. Challenges for Causes638 – sets out grounds for challenge fo cause-both Crown and accused entitled to unltd numer of challenges (on those grounds only)-incl: convicted of an offence where punishment is more than 12 mos-s638(1)(f) – contraversial – person is not indifferent btw accused and Queen – ie prejudiced and unlike US, in Canada – every jury panel is presumed impartial or indifferent and must raise concerns which diplace the presumption inorder to be challenged on this ground

4 types of juror prejudice :1. Interest Prejudice – juror has direct interest in trial – nnot contraversial (“juror is uncle of accused or wife of a witness”)2. Specific Prejudice – attitudes or beliefs about the case form media coverage etc3. Generic Prejudcie – stereotypical attitudes about accused, victims, witnesses or nature of the crime4. Conformity Prejudice – juror might feel influenced by strong community expectations about the outcome

-first, counsel must have some reason for the challenge – cant be random-secondly, challenge will most likely be limited to 1 - 2 preset questions – cant grill the juror-since counsel doesnt know much about the jury - challenges usually agaisnt array as a whole – asking each juror the basic question to determine if they can be impartial-but it is difficult to get approval for these challenges – except w/ respect to prejudice against race of the accused but the rules will not be relaxed for other types of prejudice - R v Find – accused wanted to question the jurors in relation to sexual assaults against

children – but the court held that prejudice of that type could be cured by directions to the jury and that type of bias was not something the court could take notice of also in R v Spence – accused black and victim East Indian – accused tried to challenge on basis of racial sympathy for victim by jurors who might be east indian – court refused to notice that type of bias as well – allowing only challenge on grounds of racism against the accused.

When Challenge allowed --> accused decides whether to go first and then crown and accused take turns – the challenge is tried by the 2 most recently sworn jurors – on bal of prob-if CC provisions not followed = error that leads to retrialR v Guerin – judge took over role of counsel to question jurors and decide their impartiality

3. Preemptory Challenge

s634 – limited to: 20 for each party (1st degree murder, high treason) 12 for offences pun by 5yr s imprisonment or more 4 in all other cases

-use of this challenge is unconstrained – ie can be for any reasonif more than one accused each recieves the full number (and the Crown receives the same as all combined)

R v Latimer – Crown and RCMP devised questionnaire for 30 prosepective jurors on religion, abortion, and euthanasia – the Crown did not disclose the questionnaire or even their direct contact w/ the jurors to the defence - Court held this was flagrant abuse of process and interf w/ admin of justice warranting a new trial – did not matter whether RCMPs behaviour actually influencdedjury deliberations but whether justice was “seen to be done”

-representativeness is desirable but not the onlyway to achieve impartiality – and accused cannot insist that jury contains members of their race

R v Butler – succeeded in challenging the array because sheriff commented to his counsel that Indians usu kept out of array because they were unreliable to attend trial and in Pizzacola – crown admitted creating all-female jury on basis that men more likely to find sexual harrassment acceptable in workplace- **without the benefit of these candid statements it is very difficult to est unacceptable motivations for jury selection (eg. Butler – initial challenge was rejected)-cant really challenge because there doesnt need to be an explanation or a good reason for dismissing particular jurors

Pre Trial Motions

Timing and Forum

SCC has held that in relation to s11(b) of the Charter a person is “charged” when an information is sworn or a direct indictment is laid.

And the time of “commencement” of a jury trial depends on what section of the Code is being considered and what interests are at stake.eg. -accused right to be present at trial -->jury selection is part of the trial-in relation to power to replace a juror --> trial does not start until accused is place in the charge of jury

pre-trial motions --> -only the trial judge should hear applications to sever counts-only the trial judge has jurisdiction to issue severance orders-as long as trial date assigned no need to wait until trial date to bring a motion

s645(5) auth trial judge, before jury selection, to deal w/ any matter that would be heard in the jury's absencesome matters can be dealt w/ by the PI judge (like exclusion of evidence) but some cant (like Charter applications)

Pre-Hearing Conference:-unlike a pre-trial motion no binding decisions are made-matters can also be discussed at a pre-hearing conference, s 625.1 to consider matters that would be better decided before the proceedings start -mandatory for jury trials 625.1(2)-done to see if there can be agreement on certain issues to expedite the trial-judge gets opprtunity to see what will be contentious/at issue-parties can change strategy after the conference but not so as to prejudice the accused who placed reliance on for example the crown's stated intention before deciding whether to have a jury trial. depends on whether a change of strategy takes away accused's right to a fair trial-the defence can also change strategy and focus – and any intended action revealed does not constitute an application (eg. saying they will be applying for youth court transfer – not binding)

Specific PreTrial Motions:

Change of venue-at CL trials held in area where offence occurred-judges have jurisdiction throughout province where appointed-should not hear trials of offences committed entirely in another provinces599 – either defence / crown can apply for change of venue when:a) where it appears expedient to ends of justice; orb) competent auth has directed that jury not to be summoned at time appointed in a territorial division where the trial would otherwise by law be held

-where pre-trial publicity has made it too difficult for an accused to obtain a fair trial w/o a change of venue-req strong evidence of a genera prejudicial attitude in the community as a whole

- and only where the prejudice cannot be cured through jury selection, instructions to jury,or the rules of evidence-also relevant – date of media coverage, and possibility that province wide publicity means better off having trial in larger center, rather than moving it to a smaller oneR v Eng – court refused change of venue on retrial even though one was granted on original trial – passage of time had mended the prejudice from media coverage-onus on accused to show change is needed if they are the one applying for it

Fitness to Stand Trial-whether the accused suffers from a mental disorder -related to the ultimate issue of whether the accused will be found not criminally responsible under s16 CC-Part XX.1 deals with:-either not criminally responsible based on state of mind at time of offence -fitness provisions – focus on accused's state of mental state at time of trial, and whether fair to proceed-presumption of fitness to stand trial (s672.22)

s2 CC defines ”unfit to stand trial” = 1. accused suffers from mental disorder; and2. accused is thereby unable to conduct a defence, or to instruct counsel, and unable

on account of the mental disorder to:1. uderstand the nature of the proceedings;2. understand the possible consequences; or 3. communicate with counsel

-the standard for whether an accused can communicate w/ counsel is low – all that is necessary is the accused be able to communicate the facts relating to the offence(no analytical ability to make the choice to accept counsel's advice etc is reqd)

-court can order fitness hearing on its own motion-or accused or prosecutor can make an application-onus is on the party arguing the accused is unfit to prove it on bal of prob

2 stages to fitness hearing :1. judge decides there are reasonable grounds to decide the issue2. actual question of fitness is then decided

-s672.11 – court can order assessment-cant be done in a summary conviction case unless accused raises the issue or prosec shows reasonable grounds to believe the accused is unfit

-For non-jury trials – PI judge can determine whether accused is fit-If jury trial and once jury is in charge of accused – jury decides fitness-if jury not yet given charge – jury must be sworn to decide the fitness issue, though

with accused's cosent that they can also hear the trial if one occurs (s672.26)

-fitness application can be brought any time before verdict-if hybrid offence judge must postpone fitness hearing until after crown has elected to proceed summarily or by indictment (s672.25)-if app brought during PI judge may postpone fitness application until after accused has answered the charge (s672.25)-if application is brought at trial – judge can postpone until after defence opens its case-in exercising their discretion under s672.25(2)(b) judge is obligated to first consider whether the Crown can prove the accused comitted the act alleged in the indictmment

-a finding that an accused is not fit to stand trial should not be made in the absence of any basis to put that accused on trial

If accused found to be unfit --> disposition hearing must be held-not absolute discharge – but confined to hospital or discharged subject to conditions s672.54-treatment can be ordered for up to 60 days – prov medical evidence that it will help make the accused fit for trial (but not electroconvulsive therapy)-there must be regular reviews where Crown shows it can still prove its case if called to do so

-they occur every 2 years (for young persons every 1 year)-if at any review prima facie case cannot be made out – accused entitled to an acquittal

if accused found fit --> trial proceeds as though application was never made and acused can make a new application if there is a change in circumstances

-s675(3) and 676(3) – allow for an appeal of the fitness decision by accused / crown

Charter Motions

Trial w/in a Reasonable Time: s11(b) – minimum remedy is a stay of proceedingsExceptional delay = out of the ordinary R v Rahey – decision that normally made in a few days was delayed 19 times for a total of 11 monthsInstitutional delay = w/in the ordinary times of the particular jurisdiction, but is unacceptable by external standardsfirst dealt with in R v Askov – guideline of 6-8 months from time of committal to start of a trial – as a result a lot of cases were dismissed (47,000 charges in Ontario in 1yr)then in R v Morin – stricter test – need for accused to show prejudice from the delay

-does not incl pre-charge delay (accused fingerprinted, but no charges laid for 8 months) -delay at appelate level not covered by s11(b) – only for “trial”

Test for when delay becomes unreasonable:4 Considerations:

1. length of delay

2. waiver of time periods3. reasons for delay, incl:

1. inherent time reqts of case 2. actions of the accused3. actions of the Crown4. limits on institutional rsources and 5. other reasona for delay

4. prejudice to the accused

notes:-delay refers to time from laying of charge to completion of trial-burden of proving Charter violation is on applicant (accused) – ie that the delay is unusual-if shown, burden shifts to crown to explain the delay-waiver of Charter right can be implicit /explicit but must be clear and unambiguous-consent to trial date may = waiver – but not necessarily -accused's actions will also be considered – if contrib to the delay

-delay may be due to limited resources – but courts expect govt to commit sufft resources to avoid unreasonable delay – so there is a limit to the court's tolerance of this type of excuse

-how s11(b) proects the right to a fair trial, liberty and security of the person:security – seeks to minimize anxiety, concern, and stigma of exposure to crim proceedingsliberty – seeks to minimize exposure to restr on liberty from pretrial inncarceration and restrictive bail conditionsfair trial – attempts to ensure proceedings take place while evidence is still fresh and avail.

Morin laid down a guideline but approved of departures where prejudice could not be shown

Abuse of Process and Fair Trial RightsR v Jewitt – SCC: there is residual discretion in a trial court judge to stay proceedings where compelling an accused to stand trial would violate fundl princips of justice which underlie the community's sense of fair play and decency and to prevent the abuse of a courts process through oppressive or vexatious proceedings

decision whether to order stay of proceedings – ask : “whether the case is tainted to such a degree that to allow it to proceed would tarnish the integrity of the court” (Conway)

Need to ascertain whether 1) there was an abuse of process and 2) a stay is the approp remedy

Abuse of Process:abuse of process claim basically merged w/ s7 Charter – right to fair trial-but where the Charter does not apply – there is a residual category of abuse of process for “prosecution conducted in such manner as to connote unfairness or vexatiousness of

such a degree it contravenes fundl notions of justice, undermining the integrity of the judicial process

eg. ( as in Jewitt) entrapment – might lead to stay of proceedings

Stay of Proceedings:should only be granted in the clearest of cases

2 criteria for a Stay:1) prejudice caused by the abuse will only be aggravated/manifested/perpetuated by

the continuation of trial,or by the outcome; and2) no other remedy can reasonaby remove that prejudice

-and only in exceptional cases can a stay be granted because of past misconduct is so egregious that the mere fact of going forward in the lighht of it will be offensive – Otherwise what is normally requires is that the prejudice will be ongoing.

if the court still isnt sure whether to grant a stay – the 3rd criteria is: to balance the interests of the accused served by granting a stay w/ those of society in having a final decision on the merits

Jury Deliberations

Sequestering the Jury

After jury is charged and re-charged – if separated before commencing deliberations then publication ban is orderd – -when deliberations commence jury is sequestered -jury then left alone until they reach a verdict or until it is apparent they are unale to do so-verdict must be unanimous-if hung jury – then s653 permits judge to dismiss them and order new trial

-jury can ask judge questions – if non-admin type judge must:1. read it aloud for all parties2. allow submissions on how it should be answered and3. answer it in presence of all the parties

juge should try to ascertain and address jury's precise questions and not just leave them w/copies of the Code to figure it out themselves-jury cannot be given further evidenceeg. wouldnt be able to see a demonstration after close of case-but where jury's requests cannot be satisfied the judge should try to accommodate them in some other possible way-other than when they have questions – the jury should be left alone-in some cases contact with outside world may not be detrimental enough to give rise to new trial – may require prejudice to be show – but note: no prejudice necessary where the conduct is so serious it affects public confidence in the system, no prejudice need be shown

Exhorting the Jury

-jury deadlocked-normally before s653 is applied to dismiss the jury they are called in to attempt to exhort a verdict from them-durig exhortation- judge should not present an opinion on the facts-more about giving them guidance on deliberation- listenning to each others views etc - -no pressure should be placed on the jury-not asking htem to change their minds for the sake of conformity-no deadline sholuld be imposed-error to mention the expense of a new trial or the benefit to the accused of a verdict or to direct the minority to reconsider the views of the majority

Rendering a Verdict

-jury announces verdict in court-if there is some doubt about unanimity, jury may be polled – asked individually about the verdict-once discharged by trial judge – neither trial jduge nor jury have any authority to actR v Head – foreman announced not guilty verdict – judge disch jury and acquitted accused – later foreman indicated he thought jury could have found the accused guilty of an included offence – SCC: trial judge was functus officio = no longer had jurisdiction to correct any error – acquittal had to standBUT later in-R v Burke – Court found (rare) residual jurisdiction that could be used for an irregularity – jury announced vedict of guilty but judge and a few others heard “not guilty”. Error discovered almost imed after jury was discharged – and was brought to the judge's attn but most jurors and the accused had already left. Options : If jury has to reconsider then its out of the trial judge's hands to correct. If no reconsideration necessary then judge has to decide whether there is an apprehension of bias - if so – judge must either let the verdict stand as is or declare a mistrial (mistrial option should only be used to prevent a miscarriage of justice) - if no reas app of bias he/she can correct the error. In this case the error could have been corrected if the jury hadnt mostly left – becoming expose to media coverage etc. - there was no actual bias – but there was a reas appr of bias

Jury Secrecy

s649 – offence for anyone present in the jury room to disclose any of info about deliberations – except in connection w/ an investigation into obstructng justice-the CL rule is sim and incl anyone (although not in the room) who overhears the delib accidentallyR v Pan – one juror at his murder trial had been leaking news reports to the jury – she also

sent the judge a note requesting the jury be polled (she was going to agree in delib but disagree with the verdict in open court) SCC: reveiwed s649 – its purpose = promotes candour in discussions – lets jury consider all the possibilities w/o public recrimination (blame/criticism) – esp useful for unpopular accused or heinous crimes - needed to protect jurors from harrassment, reprisal or censure (strong official/public criticism) so they can perform their function confidently.Not everything must be undisclosed – 2 types of information : matters extrinsic to the deliberations and matters intrinsic to themeg. thrid party making contact w/ juror or giving them information = extrinsic matter what effect that contact/inormation has on the jury's deliberations = intrinsic matter -s649 and the CL rule only apply to intrinsic matterseg. Mercier – Crown erasing words from blacboard = extrinsic matter = admissableeffect this had on the jury's deliberations = intrinsic matter = inadmissable

Judicial Verdicts – Judge Only Trial

-trial judge has no general duty at CL to give reasons in every case but failure to do so = error of law and will be a ground for an appeal (Shephard)

-reasons will be adequate if they: explain and justify the result the parties can understand them and they permit appellate review

Test for error of law based on insuffient reasons:1. Are the reasons inadequate?2. If so, does the inadequacy prevent appellate review?

If 'yes' to 1 & 2 --> new trial should be ordered.

Shephard – evidence was inconsistent and conflictual and there were issues of credibility-jduges reasons were “boiler plate” and indicated in one sentence that he had considered the burden on the crown and the testimony.Shephard guidelines for giving reasons:

1. the obligation to give reasons is inherent in the judge's role – and it is owed to the public at large.

2. Accused person should not be left in doubt about reasons for conviction. They may be clear from the record. In all the circumstances has the functional need to know been met?

3. Lawyers may require reasons to prepare an appeal. Again record may be sufficient.4. If reasons not provided appellate court may make a finding of unreasonable verdict,

error of law, or miscarriage of justice under 686(1)(a). 5. Reasons esp important if trial judge is addressing troublesome principles of

unsettled law; confused / contradicitory evidence on a key issue.6. Reasons need to povide a basis for meaningful appellate review of the correctness of

the trial judge's decision, in the circumstances.

Acquittals are different – no such ground of appeal as “unreasonable acquittal”.

Conviction requires proof of eery element BRD but acquittal only req reasonable doubt.(It does not have to be based on factual findings).

-If there is delay before the reasons are offered – may lead to finding that they were written to justify the verdict rahter than explain the reasonning.

Appeals and Review

-rights of appeak are entirely a creature of statute-only appeals authorized in Parts XXI and XXVI can be brought for indictable offences (s674)

but also:-applications for certiorari can be brought in some cases -an appeal to the SCC might be possible through s40 the Supr Crt ActDagenais v CBC – s40 was used to allow a 3rd party (the media) to appeal a pub ban – which would not have been possible under the CodeR v Laba – Crown used s 40 to appeal a ruling that overturned a reverse onus provision in the Code – even though they had been successful in the Court of Appeal result. (effectively the Crown was appealing a case it had won)

-Time limits and procedures are set by rules of court – Code otherwise states what can or cant be done.

Separate sets of rules apply to summary and indictable offences – but the Code allows for them to be heard together where they were tried together

Appeals of Indictable Offences

Appeals by the Accuseds675(1) accused can appeal on question of law alone, on question of fact (w/ leave of CofA), on mixed quest of law and fact, or any ground of appeal “that appears to the court of appeal to be a sufficient ground of appeal”.The grounds on which an appeal may be granted are much narrower:s686(1)(a) sets those out:

(i) the verdict should be set aside because it is unreasonable and cannot be supported by the evidence

(ii) judgment should be set aside because a wrong decision was made on a question of law

(iii)there was a miscarriage of justice

3 filters limit the ground on which an appeals can succeed : 1. only such errors of fact/mixed fact and law that result in an unreasonable verdict or

miscarriage of justice are sufficient for an appeal to be granted2. “question of law” may actually be a treated as a question of mixed law and fact

when decding whether appeal shoud be granted – a involve greater deference to the trial judge

3. even if an appeal meets the conditions of 686(1)(a), above, the grounds are further narrowed by 686(1)(b) which sets out grounds on which an appeal can be dismissed(and those are not exhaustive).

-Appeal might be dismissed despite an error if accused properly convicted on other counts-also s686(b) contains 2 further bases for dismissing an appeal:

(iii)(“the curative proviso”) notwithstanding that an appeal might be decided in favour of the appellant – no substantial wrong or miscarriage of justice occurred, or

(iv)despite any procedural irregularity at trial the court had jurisdiction over the class of offence and the appellant suffered no prejudice by it.

If an appeal is granted under s686(1)(a) – the court of appeal either quashes the conviction or orders a new trialIf the appeal is dismissed because accused was properly convicted on some part, the court of appeal can either substitute a verdict, affirm the sentence, impose a new sentence or remit the matter to the trial court for resentencing.

s686 also allows the CofA to hear appeals against findings that accused was unfit to stand trial, not crim resp by reason of mental disorder, or for special verdicts, or (s687) vary a sentence.

Standard of ReviewHousen v Nikolaisen – pure questions of law – standard of rev = correctness, so CofA can substitute its opinion for trial judge's-question of fact = higher standard – req “palpable and overriding error” ie no evidence upon which he/she could have arrived at that conclusionmixed law/fact – standard is on both ends of the spectrum depending on the question – ie can it be reduced to a ques of law?Just remember that : if decision on review involves judge's interp of the evidence as a whole – it should only be overturned in the case of palpable and overriding error.

Unreasonable Verdictsassessment = whether the verdict is one that a properly instructed jury acting judicially could reasonably have rendered. -involves some weighing of the evidence – not just a question of sufficency of the evidence-but reviewing court cannot substitute its view for that of the trier of fact – they must ask: could the trier of fact have reasonably reached the conclusion it did on the evidence before it?

if it is a jury verdict – note that juries do not give reasons and if it was a matter of jury being charged incorrectly = that would be an error of law, reviewable under 686(1)(a)(ii)so if the jury was charged correctly but returns a quesionable verdict - might be an issue of unsupported verdictif trial by judge alone – the judge issues reasons that can explain the verdict -which can also provide justification for a reversal – by providing a flaw in the reasonning or a legal error

eg of unreasonable verdict: multiple accused or multiple counts – same evidence could not

lead to both acquuittal and conviction but remember that juries are allowed to accept / not accept any of the evidence – gien leeway so mahy be permitted to see the case differently – so an appeal on inconsistent verdict grounds will only succeed if the evidence on 2 different charges is not logiclly separable.

Errors of Law and Miscarriages of Justice

**This type of appeal can succeed even if the verdict is supprotable by the evidence (ie if it wrent for the error of law/miscar of justice the evidence would have supported the verdict anyway)

s686(1)(a)(ii) – appeal on grounds of “wrong decision on a question of law”s686(1)(a)(iii) – appeal on grounds of “miscarriage of justice”

in either case the parties may be arguing about whether a miscarriage of justice occurred because of the curative proviso which can be used for errors of law – if the Crown can show no miscarriage of justice occurred the appeal can be dismissed (even if it would have been decided in the accused's favour due to an error of law)

“error of law” = any decision that was an erroneous interpretation or application of the law

eg. whether there was an “air of reality” to a defence = legal question --> so it would be an error of law to instruct the jury on a defence that had no air of reality – or to fail to instruct on one that did have an air of realityother examples:-flawed instruction to jury-improper exhortation-unnecessary use of the summary procedure for contempt proceedings-failing to give a vetrovec warning

R v Khan – jury provided transcript that incl exch btw judge and counsel in jury's absence –this was discovered w/in a few hours – trial judge rejected mistrial application – S CC held appeal properly brought on the basis of “error of law” - since the issue was whether the judge was correct to reject the applicaition for a mistrial – but if the error had not been discovered until after the trial (and so no application for a mistrial were made during the trial) – the question (and ground for appeal) would have been whether a miscarriage of justice occurred

“miscarriage of justice” - can be substantive or procedural-any error that deprives an accused of a fair trial is a legal error-if error at trial is mixed fact/law then the issue is whether a miscarriage of justice arose-ineffective assistance of counsel – when raised at the appeal stage (ie already happened and already affected the outcome of the trial) -failure to limit cross-examination-claim that trial judge had misapprehended the evidence

The “Curative Proviso”

s686(1)(b)(iii) - notwithstanding that an appeal might be decided in favour of the appellant – no substantial wrong or miscarriage of justice occurred

Test: whether there is a “reasonable possibility that the verdict would have been different had the error not been made”. (R v Khan)...2 ways of satisfying the curative proviso:

1. to show that the error itself was harmless – so it could not have caused prejudice to the accused; or

2. to show that the evidence was so overwhelming that even if the appeal was granted and a retrial ordered the result would inevitably be a conviction – so any theoretical prejudice has no genuine impact

harmless error category: -mistakes that actually benefit the accused-mistakes of no real consequence-improperly admitting hearsay evidence (that has no real bearing on guilt)

overwhelming evidence catgory:-very high standard-should not deprive the accused of the right to trial by jury-must be clear that any other verdict would be impossible-court should avoid speculating o what evidence thee jury would have accepted/rejected

Procedural Irregularitiess686(1)(b)(iv) - despite any procedural irregularity at trial the court had jurisdiction over the class of offence and the appellant suffered no prejudice by it.

-removes technicalities of no real consequence from the appeal process -eg. exclusion of accused from small portion of trial (where nothing consequential happened)-does not apply to: an irregularity relating to the court not having jurisdiction over the offence or over the accused-as a safeguard: the court will presume that the irregularity did cause prejudice and require the Crown to show it did not

Summary:

procedural irregularity amounts to/based on an error of law use: s686(1)(a)(ii) or (1)(b)(iii)if it causes loss of jurisdiction use : (1)(b)(iv) and it wont be fatal to the conviction

(provided no prejudice was caused to the accused)

procedural irregularity not an error of law use: (1)(a)(iii) that is, ask whether miscarriage of justice occurredif it did, appeal must be allowed and 686(1)(b) is not applicable and an acquittal must be entered or new trial ordered

Appeals by the Crown

s676 -more narrow right of appeal than the accused-no equivalent to 686(1)(a)(i) – that is the Crown has no right of appeal on the basis that an acquittal was “unreasonable” or “not supproted by the evidence”

-676(1)(a) provides the Crown a right of appeal on any question of law alone-applies to:

acquttal not criminally responsible on account of mental disorder

other decisions that would bring an end to the prosecution of a case such as: quashing an indictment failure to exercise jurisdiction over an indictment stay of proceedings granting of Charter remedy invalid or ultra vires offence accepting plea of autrefois acquit sentence (requirs leave of court)

note : acquittals should not be lightly overturnedCrown must show – that verdict would not likely have been the same had the errors not occurred - not theroetical possibility but in the concrete reality of the case at hand (R v Graveline)

good example – judge instructs / requires wrong standard of proof

“question of law” = admissibility of evidence interpretation of a statute whether evidence can be corroborative application of legal standards (eg. “legal necessity”) correct conclusion on a Charter question or whether evidence should be excluded under s24(2)

and eventhe treatment of evidence where the question concerns:1. legal effect of undisputed facts

2. misdirection as to the evidence (requires misapprehension of a legal principle)3. instructing jury to consider individual pieces of evidence separately to determine if

there is a reasonable doubt (proper approach being for the jury to consider the whole of the evidence to determine whether the guilt of the accused was established BRD)

Trial by judge alone: Court granting appeal can either order a new trial or enter a convictionIf convicition entered, court can either: impose a sentence or remit to trial court for sentence

Trial by judge and jury: only option is to order a new trial

Statutory Powers on Appeal

s683 allows court of appeal to order exhibits hear witnesses admit an examination of a witness refer questions to a special commissioner amend an indictment (where no prejudice to the accused) assign counsel for an accused release an accused pending an appeal (s679)

release requires accused to demonstrate that:1. appeal is not frivolous2. he will surrender himself into custody in accordance with the order3. his detention is not necessary in the public interest*

*note that in pre-trial this is not a valid criteria (too vague)

-accused has right to be present at appeal – but that right may not appeal if accused is in custody, but counsel is present and it is strictly a question of law

Fresh Evidence on Appeal

Evidence can be introduced on appeal that was not before the trial court

Guidelines (R v Palmer):1. not if evidence could have been admitted at trial by due diligence

2. evidence must be relevant = bears on decisive / potentially decisive issue3. evidence ust be credible = reasonably capable of belief4. if believed, it could reasonably be expected to have affected the result, when taken

with all the evidence that was admitted

note: evidence that would have been inadmissable at trial (eg. hearsay) will not be admissable on appeal

-can include evidence that casts doubt on other evidence (does not have to go striclty to guilt/innocence)

The strict Palmer criteria does not apply to evidence that the trial was invalid -eg. R v Taillefer – where evidence was wrongly not disclosed to the accused

Appeals of Summary Conviction Offences

-summary appeals are not taken to the Court of Appeal of the Province like indictable offence appeals, they are heard at the Superior Court of criminal jurisdiction

-for summary offences the accused is called a 'defendant'-thre are broader grounds for appeal for both Crown and Defendant

appeal can be made against : coviction stay of proceedings dismissal of the information sentences veerdict of not criminally responsible fitness to stand trial decisions

appeals can only be granted w/in the same limits that apply to indictable offences (s686(1))recall: for appeal purposes summary and indictable offences can be combined

-bail pending an appeal against summary conviction is granted under s816

-on summary conviction appeal can take place de novo – on basis that the interests of justice would be bette served = rare

there can be a further appeal to the court of appeal – with leave of the court – and only on questions of lawAppeals to the Supreme Court of Canada

s691-695

-indictable offences only-can only be based on question of law-all the above concerning questions of law apply here as well

-s686(1)(a) – allow appeal on basis that finding below was unreasonable or unsupportable on the evidenceie. whether the court of appeal below, should have allowed the appeal in the first instance-s686(1)(b)(iii) – curative proviso can be used to dismiss an appeal on the basis that there was no substantial wrong or miscarriage of justice-and whether the CofA correcctly applied the curative proviso themselves is a question of law that is reviewable

Appeals to SCC only permitted where :1. a judge on the court of appeal dissents on a question of law; 2. SCC gives leave to appeal; 3. accused was acquitted at trial but convicted on appeal ; or4. court of appeal overturned acutal conviction and substituted it with a conviction on

another count (gives both Crown and Accused right to appeal)

For Review of Preliminary Inquiry Decisions – see above under “Preliminary Inquiries”