Criminal Law in the Canadian Territories

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Application of the Criminal Code to the Territories

Application to territories
8 (1) The provisions of this Act apply throughout Canada except

(a) in Yukon, in so far as they are inconsistent with the Yukon Act;
(b) in the Northwest Territories, in so far as they are inconsistent with the Northwest Territories Act; and
(c) in Nunavut, in so far as they are inconsistent with the Nunavut Act.

...
R.S., 1985, c. C-46, s. 8; 1993, c. 28, s. 78; 2002, c. 7, s. 138.


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Preliminary Inquiry

See also: Preliminary Inquiry

Section 536.1 parallels the function of s. 536.

Remand by justice — Nunavut
536.1 (1) If an accused is before a justice of the peace charged with an indictable offence mentioned in section 553, the justice of the peace shall remand the accused to appear before a judge. Election before justice in certain cases — Nunavut
(2) If an accused is before a justice of the peace or a judge charged with an indictable offence, other than an offence mentioned in section 469 or 553, the justice of the peace or judge shall, after the information has been read to the accused, put the accused to an election in the following words:

You have the option to elect to be tried by a judge without a jury or to be tried by a court composed of a judge and jury. If you do not elect now, you are deemed to have elected to be tried by a court composed of a judge and jury. If you elect to be tried by a judge without a jury or by a court composed of a judge and jury or if you are deemed to have elected to be tried by a court composed of a judge and jury, you will have a preliminary inquiry only if you or the prosecutor requests one. How do you elect to be tried?

Request for preliminary inquiry — Nunavut
(3) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice or judge shall, subject to section 577, on the request of the accused or the prosecutor made at that time or within the period fixed by rules of court made under section 482 or 482.1 or, if there are no such rules, by the judge or justice, hold a preliminary inquiry into the charge.
Endorsement on the information
(4) If an accused elects to be tried by a judge without a jury or by a court composed of a judge and jury or does not elect when put to the election or is deemed under paragraph 565(1)(b) to have elected to be tried by a court composed of a judge and jury or is charged with an offence listed in section 469, the justice or judge shall endorse on the information and, if the accused is in custody, on the warrant of remand, a statement showing

(a) the nature of the election or deemed election of the accused or that the accused did not elect, as the case may be; and
(b) whether the accused or the prosecutor has requested that a preliminary inquiry be held.

Preliminary inquiry if two or more accused
(4.1) If two or more persons are jointly charged in an information and one or more of them make a request for a preliminary inquiry under subsection (3), a preliminary inquiry must be held with respect to all of them.
Procedure if accused elects trial by judge — Nunavut
(4.2) If no request for a preliminary inquiry is made under subsection (3),

(a) if the accused is before a justice of the peace, the justice of the peace shall remand the accused to appear and plead to the charge before a judge; or
(b) if the accused is before a judge, the judge shall
(i) if the accused elects to be tried by a judge without a jury, call on the accused to plead to the charge and if the accused does not plead guilty, proceed with the trial or fix a time for the trial, or
(ii) if the accused elects or is deemed to have elected to be tried by a court composed of a judge and jury, fix a time for the trial.

Jurisdiction — Nunavut
(5) If a justice of the peace before whom a preliminary inquiry is being or is to be held has not commenced to take evidence, any justice of the peace having jurisdiction in Nunavut has jurisdiction for the purpose of subsection (3).
Application to Nunavut
(6) This section, and not section 536, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 35; 2002, c. 13, s. 26; 2004, c. 12, s. 10.


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Decision to hold preliminary inquiry — Nunavut
555.1 (1) If in any criminal proceedings under this Part an accused is before a judge of the Nunavut Court of Justice and it appears to the judge that for any reason the charge should be prosecuted by indictment, the judge may, at any time before the accused has entered a defence, decide not to adjudicate and shall then inform the accused of the decision and continue the proceedings as a preliminary inquiry.
If subject-matter is a testamentary instrument or exceeds $5,000 in value — Nunavut
(2) If an accused is before a judge of the Nunavut Court of Justice charged with an indictable offence mentioned in paragraph 553(a) or subparagraph 553(b)(i), and, at any time before the judge makes an adjudication, the evidence establishes that the subject-matter of the offence is a testamentary instrument or that its value exceeds five thousand dollars, the judge shall put the accused to an election in accordance with subsection 536.1(2).
Continuation as preliminary inquiry — Nunavut
(3) A judge shall continue the proceedings as a preliminary inquiry under Part XVIII if the accused is put to an election under subsection (2) and elects to be tried by a judge without a jury and requests a preliminary inquiry under subsection 536.1(3) or elects to be tried by a court composed of a judge and jury or does not elect when put to the election.
Continuing proceedings — Nunavut
(4) If an accused is put to an election under subsection (2) and elects to be tried by a judge without a jury and does not request a preliminary inquiry under subsection 536.1(3), the judge shall endorse on the information a record of the election and continue with the trial.
Application to Nunavut
(5) This section, and not section 555, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 39; 2002, c. 13, s. 33.


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Provincial Court Trial

Provincial Court Judge’s Jurisdiction with Consent
Trial by provincial court judge with consent
554 (1) ...
Nunavut
(2) With respect to criminal proceedings in Nunavut, if an accused is charged in an information with an indictable offence other than an offence that is mentioned in section 469 and the offence is not one over which a judge of the Nunavut Court of Justice has absolute jurisdiction under section 553, a judge of the Nunavut Court of Justice may try the accused if the accused elects to be tried by a judge without a jury.
R.S., 1985, c. C-46, s. 554; R.S., 1985, c. 27 (1st Supp.), ss. 105, 203; 1999, c. 3, s. 38; 2002, c. 13, s. 31.


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Election

Proceedings following re-election — Nunavut
562.1 (1) If the accused re-elects under subsection 561.1(1) to be tried by a judge without a jury and does not request a preliminary inquiry under subsection 536.1(3), the judge shall proceed with the trial or appoint a time and place for the trial.
Proceedings following re-election — Nunavut
(2) If the accused re-elects under section 561.1 before the completion of the preliminary inquiry to be tried by a judge without a jury or by a court composed of a judge and jury, and requests a preliminary inquiry under subsection 536.1(3), the justice of the peace or judge shall proceed with the preliminary inquiry.
Application to Nunavut
(3) This section, and not section 562, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 44; 2002, c. 13, s. 39.


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Proceedings on re-election to be tried by judge without jury — Nunavut
563.1 (1) If an accused re-elects under section 561.1 to be tried by a judge without a jury and does not request a preliminary inquiry under subsection 536.1(3),

(a) the accused shall be tried on the information that was before the justice of the peace or judge at the preliminary inquiry, subject to any amendments that may be allowed by the judge by whom the accused is tried; and
(b) the judge before whom the re-election is made shall endorse on the information a record of the re-election.

Application to Nunavut
(2) This section, and not section 563, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 45; 2002, c. 13, s. 40.


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Right to re-elect with consent — Nunavut
561.1 (1) An accused who has elected or is deemed to have elected a mode of trial may re-elect any other mode of trial at any time with the written consent of the prosecutor.
Right to re-elect before trial — Nunavut
(2) An accused who has elected or is deemed to have elected a mode of trial but has not requested a preliminary inquiry under subsection 536.1(3) may, as of right, re-elect to be tried by any other mode of trial at any time up to 14 days before the day first appointed for the trial.
Right to re-elect at preliminary inquiry — Nunavut
(3) An accused who has elected or is deemed to have elected a mode of trial and has requested a preliminary inquiry under subsection 536.1(3) may, as of right, re-elect to be tried by the other mode of trial at any time before the completion of the preliminary inquiry or before the 15th day after its completion.
Notice of re-election under subsection (1) or (3) — Nunavut
(4) If an accused wishes to re-elect under subsection (1) or (3), before the completion of the preliminary inquiry, the accused shall give notice in writing of the wish to re-elect, together with the written consent of the prosecutor, if that consent is required, to the justice of the peace or judge presiding at the preliminary inquiry who shall on receipt of the notice put the accused to a re-election in the manner set out in subsection (9).
Notice at preliminary inquiry — Nunavut
(5) If at a preliminary inquiry an accused wishes to re-elect under subsection (1) or (3) to be tried by a judge without a jury but does not wish to request a preliminary inquiry under subsection 536.1(3), the presiding justice of the peace shall notify a judge or a clerk of the Nunavut Court of Justice of the accused’s intention to re-elect and send to the judge or clerk the information and any promise to appear, undertaking or recognizance given or entered into in accordance with Part XVI, or any evidence taken before a coroner, that is in the possession of the justice of the peace.
Notice when no preliminary inquiry or preliminary inquiry completed — Nunavut
(6) If an accused who has not requested a preliminary inquiry under subsection 536.1(3) or who has had one wishes to re-elect under this section, the accused shall give notice in writing of the wish to re-elect together with the written consent of the prosecutor, if that consent is required, to the judge before whom the accused appeared and pleaded or to a clerk of the Nunavut Court of Justice. (7) [Repealed, 2002, c. 13, s. 38]
Time and place for re-election — Nunavut
(8) On receipt of a notice given under any of subsections (4) to (7) that the accused wishes to re-elect, a judge shall immediately appoint a time and place for the accused to re-elect and shall cause notice of the time and place to be given to the accused and the prosecutor.
Proceedings on re-election — Nunavut
(9) The accused shall attend or, if in custody, shall be produced at the time and place appointed under subsection (8) and shall, after

(a) the charge on which the accused has been ordered to stand trial or the indictment, if an indictment has been preferred pursuant to section 566, 574 or 577 or is filed with the court before which the indictment is to be preferred pursuant to section 577, or
(b) in the case of a re-election under subsection (1) or (3), before the completion of the preliminary inquiry or under subsection (2), the information

has been read to the accused, be put to a re-election in the following words or in words to the like effect: You have given notice of your wish to re-elect the mode of your trial. You now have the option to do so. How do you wish to re-elect?
Application to Nunavut
(10) This section, and not section 561, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 43; 2002, c. 13, s. 38.


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Proceedings

PART XIX.1 Nunavut Court of Justice
Nunavut Court of Justice
573 (1) The powers to be exercised and the duties and functions to be performed under this Act by a court of criminal jurisdiction, a summary conviction court, a judge, a provincial court judge, a justice or a justice of the peace may be exercised or performed by a judge of the Nunavut Court of Justice.
Status when exercising power
(2) A power exercised or a duty or function performed by a judge of the Nunavut Court of Justice under subsection (1) is exercised or performed by that judge as a judge of a superior court.
Interpretation
(3) Subsection (2) does not authorize a judge of the Nunavut Court of Justice who is presiding at a preliminary inquiry to grant a remedy under section 24 of the Canadian Charter of Rights and Freedoms.
R.S., 1985, c. C-46, s. 573; R.S., 1985, c. 27 (1st Supp.), s. 113; 1999, c. 3, s. 50.


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Application for review — Nunavut
573.1 (1) An application for review may be made by the Attorney General or the accused, or by any person directly affected by the decision or order, to a judge of the Court of Appeal of Nunavut in respect of a decision or order of a judge of the Nunavut Court of Justice

(a) relating to a warrant or summons;
(b) relating to the conduct of a preliminary inquiry, including an order under subsection 548(1);
(c) relating to a subpoena;
(d) relating to the publication or broadcasting of information or access to the court room for all or part of the proceedings;
(e) to refuse to quash an information or indictment; or
(f) relating to the detention, disposal or forfeiture of any thing seized under a warrant or order.

Limitation
(2) A decision or order may not be reviewed under this section if

(a) the decision or order is of a kind that could only be made in a province or a territory other than Nunavut by a superior court of criminal jurisdiction or a judge as defined in section 552; or
(b) another statutory right of review is available.

Grounds of review
(3) The judge of the Court of Appeal of Nunavut may grant relief under subsection (4) only if the judge is satisfied that

(a) in the case of any decision or order mentioned in subsection (1),
(i) the judge of the Nunavut Court of Justice failed to observe a principle of natural justice or failed or refused to exercise the judge’s jurisdiction, or
(ii) the decision or order was made as a result of an irrelevant consideration or for an improper purpose;
(b) in the case of a decision or order mentioned in paragraph (1)(a), that
(i) the judge failed to comply with a statutory requirement for the making of the decision or order,
(ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met,
(iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts,
(iv) the warrant is so vague or lacking in particularity that it authorizes an unreasonable search, or
(v) the warrant lacks a material term or condition that is required by law;
(c) in the case of a decision or order mentioned in paragraph (1)(b), that the judge of the Nunavut Court of Justice
(i) failed to follow a mandatory provision of this Act relating to the conduct of a preliminary inquiry,
(ii) ordered the accused to stand trial when there was no evidence adduced on which a properly instructed jury acting reasonably could convict, or
(iii) discharged the accused when there was some evidence adduced on which a properly instructed jury acting reasonably could convict;
(d) in the case of a decision or order mentioned in paragraph (1)(c) or (d), that the judge of the Nunavut Court of Justice erred in law;
(e) in the case of a decision or order mentioned in paragraph (1)(e), that
(i) the information or indictment failed to give the accused notice of the charge,
(ii) the judge of the Nunavut Court of Justice did not have jurisdiction to try the offence, or
(iii) the provision creating the offence alleged to have been committed by the accused is unconstitutional; or
(f) in the case of a decision or order mentioned in paragraph (1)(f), that
(i) the judge failed to comply with a statutory requirement for the making of the decision or order,
(ii) the decision or order was made in the absence of any evidence that a statutory requirement for the making of the decision or order was met, or
(iii) the decision or order was made as a result of reckless disregard for the truth, fraud, intentional misrepresentation of material facts or intentional omission to state material facts.

Powers of judge
(4) On the hearing of the application for review, the judge of the Court of Appeal of Nunavut may do one or more of the following:

(a) order a judge of the Nunavut Court of Justice to do any act or thing that the judge or any other judge of that court failed or refused to do or has delayed in doing;
(b) prohibit or restrain a decision, order or proceeding of a judge of the Nunavut Court of Justice;
(c) declare invalid or unlawful, quash or set aside, in whole or in part, a decision, order or proceeding of a judge of the Nunavut Court of Justice;
(d) refer back for determination in accordance with any directions that the judge considers to be appropriate, a decision, order or proceeding of a judge of the Nunavut Court of Justice;
(e) grant any remedy under subsection 24(1) of the Canadian Charter of Rights and Freedoms;
(f) refuse to grant any relief if the judge is of the opinion that no substantial wrong or miscarriage of justice has occurred or that the subject-matter of the application should be determined at trial or on appeal; and
(g) dismiss the application.

Interim orders
(5) If an application for review is made, a judge of the Court of Appeal of Nunavut may make any interim order that the judge considers appropriate pending the final disposition of the application for review.
Rules
(6) A person who proposes to make an application for review shall do so in the manner and within the period that may be directed by rules of court, except that a judge of the Court of Appeal of Nunavut may at any time extend any period specified in the rules.
Appeal
(7) An appeal lies to the Court of Appeal of Nunavut against a decision or order made under subsection (4). The provisions of Part XXI apply, with any modifications that the circumstances require, to the appeal.
1999, c. 3, s. 50.


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Habeas corpus
573.2 (1) Habeas corpus proceedings may be brought before a judge of the Court of Appeal of Nunavut in respect of an order made or warrant issued by a judge of the Nunavut Court of Justice, except where

(a) the order or warrant is of a kind that could only be made or issued in a province or a territory other than Nunavut by a superior court of criminal jurisdiction or a judge as defined in section 552; or
(b) another statutory right of review or appeal is available.

Exception
(2) Despite subsection (1), habeas corpus proceedings may be brought before a judge of the Court of Appeal of Nunavut with respect to an order or warrant of a judge of the Nunavut Court of Justice if the proceedings are brought to challenge the constitutionality of a person’s detention or confinement.
Provisions apply
(3) Subsections 784(2) to (6) apply in respect of any proceedings brought under subsection (1) or (2). 1999, c. 3, s. 50.


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Indictment — Nunavut
566.1 (1) The trial of an accused for an indictable offence, other than an indictable offence referred to in section 553 or an offence in respect of which the accused has elected or re-elected to be tried by a judge without a jury and in respect of which no party has requested a preliminary inquiry under subsection 536.1(3), must be on an indictment in writing setting out the offence with which the accused is charged.
Preferring indictment — Nunavut
(2) If an accused elects under section 536.1 or re-elects under section 561.1 to be tried by a judge without a jury and one of the parties requests a preliminary inquiry under subsection 536.1(3), an indictment in Form 4 may be preferred.
What counts may be included and who may prefer indictment — Nunavut
(3) Section 574 and subsection 576(1) apply, with any modifications that the circumstances require, to the preferring of an indictment under subsection (2).
Application to Nunavut
(4) This section, and not section 566, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 47; 2002, c. 13, s. 42.


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Mode of trial if two or more accused — Nunavut
567.1 (1) Despite any other provision of this Part, if two or more persons are jointly charged in an information, unless all of them elect or re-elect or are deemed to have elected the same mode of trial, the justice of the peace or judge may decline to record any election, re-election or deemed election for trial by a judge without a jury.
Application to Nunavut
(2) This section, and not section 567, applies in respect of criminal proceedings in Nunavut.
1999, c. 3, s. 48; 2002, c. 13, s. 43.


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Trial

Attorney General may require trial by jury — Nunavut
569 (1) Even if an accused elects under section 536.1 or re-elects under section 561.1 or subsection 565(2) to be tried by a judge without a jury, the Attorney General may require the accused to be tried by a court composed of a judge and jury unless the alleged offence is one that is punishable with imprisonment for five years or less. If the Attorney General so requires, a judge has no jurisdiction to try the accused under this Part and a preliminary inquiry must be held if requested under subsection 536.1(3), unless one has already been held or the re-election was made under subsection 565(2).
Application to Nunavut
(2) This section, and not section 568, applies in respect of criminal proceedings in Nunavut.
R.S., 1985, c. C-46, s. 569; R.S., 1985, c. 27 (1st Supp.), s. 111; 1999, c. 3, s. 49; 2002, c. 13, s. 44; 2008, c. 18, s. 24.1.


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Appeals

Appeals to Court of Appeal
Appeal on question of law
839 (1) ... Nunavutbr> (1.1) An appeal to the Court of Appeal of Nunavut may, with leave of that court or a judge of that court, be taken on any ground that involves a question of law alone, against a decision of a judge of the Court of Appeal of Nunavut acting as an appeal court under subsection 812(2) or 829(2).
...
R.S., 1985, c. C-46, s. 839; R.S., 1985, c. 27 (1st Supp.), s. 183; 1999, c. 3, s. 57.


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